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Ex. 10.1
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF AUGUST 29, 1997
BY AND AMONG
SPEEDFAM INTERNATIONAL, INC.,
AS THE COMPANY
AND
FIRSTAR BANK MILWAUKEE, N.A.,
THE FIRST NATIONAL BANK OF CHICAGO,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION AND
NORWEST BANK ARIZONA, N.A.
AS THE BANKS
AND
FIRSTAR BANK MILWAUKEE, N.A.
AS THE AGENT
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TABLE OF CONTENTS
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SECTION 1 DEFINITIONS AND TERMS...................................................................... 1
1.1 Definitions.......................................................................... 1
1.2 Accounting and Financial Determinations.............................................. 9
1.3 Interpretation....................................................................... 10
1.4 Other Terms.......................................................................... 10
SECTION 2 AMOUNTS AND TERMS OF OBLIGATIONS................................................... 10
2.1 Revolving Loans...................................................................... 10
2.2 Letters of Credit.................................................................... 13
2.3 Funding Procedures................................................................... 14
2.4 Interest After Default............................................................... 14
2.5 Loan Account......................................................................... 15
2.6 Payments............................................................................. 15
2.7 Prepayments.......................................................................... 15
2.8 Effect of Regulatory Change.......................................................... 16
2.9 No Obligation to Extend or Forbear................................................... 16
SECTION 3 REPRESENTATIONS AND WARRANTIES..................................................... 16
3.1 Organization, Qualification and Subsidiaries......................................... 16
3.2 Financial Statements................................................................. 17
3.3 Authorization........................................................................ 17
3.4 Absence of Conflicting Obligations................................................... 17
3.5 Taxes............................................................................... 18
3.6 Absence of Litigation................................................................ 18
3.7 Accuracy of Information.............................................................. 18
3.8 Ownership of Property................................................................ 18
3.9 Federal Reserve Regulations.......................................................... 19
3.10 ERISA................................................................................ 19
3.11 Places of Business................................................................... 19
3.12 Other Names.......................................................................... 19
3.13 Not an Investment Company............................................................ 19
3.14 No Defaults......................................................................... 20
3.15 Environmental Laws................................................................... 20
3.16 Labor Matters........................................................................ 20
3.17 Restricted Payments.................................................................. 20
SECTION 4 CONDITIONS PRECEDENT TO OBLIGATIONS........................................................ 20
4.1 Initial Obligations.................................................................. 20
4.2 Subsequent Obligations............................................................... 21
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SECTION 5 AFFIRMATIVE COVENANTS...................................................................... 22
5.1 Corporate Existence; Compliance With Laws;
Maintenance of Business; Taxes....................................................... 22
5.2 Maintenance of Property; Insurance................................................... 22
5.3 Financial Statements................................................................. 23
5.4 Inspection of Property and Records................................................... 24
5.5 Use of Proceeds...................................................................... 25
5.6 Bank Accounts........................................................................ 25
5.7 Comply With, Pay and Discharge All Notes,
Mortgages, Deeds of Trust and Leases................................................. 25
5.8 Environmental Compliance............................................................. 25
5.9 Fees and Costs....................................................................... 26
5.10 Indemnity............................................................................ 27
5.11 [Intentionally Omitted].............................................................. 28
5.12 SEC Reports.......................................................................... 28
SECTION 6 NEGATIVE COVENANTS......................................................................... 28
6.1 Sale of Assets, Consolidation, Merger, Etc........................................... 28
6.2 Indebtedness......................................................................... 29
6.3 Liens................................................................................ 29
6.4 Guaranty............................................................................. 30
6.5 Restricted Payments.................................................................. 30
6.6 Loans, Investments................................................................... 30
6.7 Compliance with ERISA................................................................ 31
6.8 Net Worth............................................................................ 31
6.9 Interest Coverage Ratio.............................................................. 31
6.10 Funded Debt to Cash Flow............................................................. 31
6.11 Funded Debt to Capitalization........................................................ 31
6.12 Operating Leases..................................................................... 31
SECTION 7 DEFAULT AND REMEDIES....................................................................... 32
7.1 Events of Default Defined............................................................ 32
7.2 Remedies Upon Event of Default....................................................... 34
SECTION 8 RELATIONSHIP OF AGENT AND BANKS............................................................ 35
8.1 Appointment.......................................................................... 35
8.2 Powers............................................................................... 35
8.3 Action on Instructions of Banks...................................................... 35
8.4 Amendments........................................................................... 36
8.5 Application of Payments.............................................................. 36
8.6 General Immunity..................................................................... 37
8.7 No Responsibility for Loans, Recitals, Etc........................................... 37
8.8 Employment of Agents and Counsel..................................................... 37
8.9 Reliance on Documents, Counsel....................................................... 37
8.10 Inspections.......................................................................... 38
8.11 Agent's Reimbursement and Indemnification............................................ 38
8.12 Rights as a Lender................................................................... 38
8.13 Bank Credit Decision................................................................. 38
8.14 Successor Agent...................................................................... 39
8.15 Noteholders.......................................................................... 39
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SECTION 9 MISCELLANEOUS........................................................................ 39
9.1 Assignability; Successors............................................................ 39
9.2 Survival............................................................................. 39
9.3 Governing Law........................................................................ 40
9.4 Counterparts; Headings............................................................... 40
9.5 Entire Agreement; Amendments......................................................... 40
9.6 Notices.............................................................................. 40
9.7 Severability......................................................................... 42
9.8 Further Assurances................................................................... 42
9.9 Conflicts and Ambiguities............................................................ 42
9.10 Submission to Jurisdiction........................................................... 42
9.11 Waiver of Jury Trial................................................................. 42
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LIST OF EXHIBITS
Exhibit A-1 - Amended and Restated Revolving Credit
Note from Company to Firstar
Exhibit A-2 - Amended and Restated Revolving Credit
Note from Company to First Chicago
Exhibit A-3 - Revolving Credit Note from Company to BA
Exhibit A-4 - Revolving Credit Note from Company to
Norwest
Exhibit B - Amended and Restated Guaranty of SpeedFam
Corporation
Exhibit C - Opinion Letter
LIST OF SCHEDULES
Schedule 1 - Approved Investments
Schedule 2 - Subsidiaries, Securities Disclosures
Schedule 3 - Real Estate
Schedule 4 - Liens/Capital Leases
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made
and entered into as of this 29th day of August, 1997, by and among SPEEDFAM
INTERNATIONAL, INC., an Illinois corporation (f/k/a FamTec International, Inc.)
(the "Company"), which has its principal office at 000 X. 00xx Xxxxxx, Xxxxxxxx,
Xxxxxxx 00000- 2416, and THE FIRST NATIONAL BANK OF CHICAGO ("First Chicago"), a
national banking association, which has its principal office at Xxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, FIRSTAR BANK MILWAUKEE, N.A.
("Firstar"), a national banking association, formerly known as First Wisconsin
National Bank of Milwaukee, which has its principal office at 000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION ("BA"), a national banking association, which has its principal
office at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000 and NORWEST
BANK ARIZONA, N.A. ("Norwest"), a national banking association, which has its
principal office at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, 00000-0000
(First Chicago, Firstar in its capacity as a bank, BA and Norwest shall each be
individually referred to as "Bank" and collectively as the "Banks"), and Firstar
in its capacity as agent for the Banks (the "Agent").
RECITALS
The Company has requested that the Banks extend to it a credit
not to exceed $60,000,000 in the form of Revolving Loans (including Letters of
Credit in an aggregate principal amount not to exceed $10,000,000). The Banks
have agreed separately and independently (and not jointly) to extend credit to
the Company upon all of the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
SECTION 1 DEFINITIONS AND TERMS
1.1 Definitions. As used in this Agreement, the following
terms have the following meanings:
"Affiliate" of a Person shall mean any (a) director,
officer or employee of the Person, or (b) Person directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
another Person. A Person shall be deemed to control another Person if the
controlling Person directly or indirectly, either individually or together with
(in the case of an individual) his spouse, lineal descendants and ascendants and
brothers or sisters by blood or adoption or spouses of such
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descendants, ascendants, brothers and sisters, owns five percent or more of any
class of voting securities 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 the ownership of voting
securities, through common directors, trustees or officers, by contract or
otherwise.
"Agreement" shall mean this Amended and Restated
Revolving Credit Agreement, as amended, supplemented, modified or extended from
time to time.
"Borrowing Date" shall have the meaning assigned in
Section 2.1(c).
"Business Day" shall mean a day other than a
Saturday or Sunday on which banks are open for business in Milwaukee, Wisconsin;
provided, however, that for purposes of LIBOR Rate Loans, the term "Business
Day" shall mean only those days on which dealings in U.S. dollar deposits are
carried out by U.S. financial institutions in the London interbank Eurodollar
market.
"Capitalization" shall mean, as of any time of
determination thereof, the sum of Funded Debt and Net Worth.
"Cash Flow" shall mean Net Income plus each of the
following items, to the extent deducted by the Company in the calculation of Net
Income for the applicable period in conformity with GAAP: (a) interest expense
accrued; (b) income tax expense accrued, (c) depreciation, (d) amortization and
(e) other non-cash charges not specified in clauses (c) or (d).
"Code" shall mean the Internal Revenue Code of 1986,
as amended, and any successor statute, together with the regulations and
published interpretations thereunder, in each case as in effect from time to
time.
"Default" shall mean an Event of Default or an event
which with the giving of notice or the passage of time or both would constitute
an Event of Default.
"Employee Plan" shall mean any savings, profit
sharing, or retirement plan or any deferred compensation contract or other plan
maintained for employees of the Company and covered by Title IV of ERISA,
including, without limitation, any "multiemployer plan" as defined in ERISA.
"Environmental Law" shall mean any local, state or
federal law or other statute, law, ordinance, rule, code, regulation, decree or
order governing, regulating or imposing liability or standards of conduct
concerning the use, treatment, generation, storage, disposal or other handling
or release of any Hazardous Substance.
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"Environmental Liability" shall mean all liability
arising under, resulting from or imposed by any Environmental Law.
"Equity in Net Earnings of Affiliates" shall be
determined on a consolidated basis in accordance with GAAP and mean the amount
reflected on the Company's current Form 10-Q or Form 10- K, as applicable, for
Equity in net earnings of affiliates.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended, and any successor statute, together with the
regulations and published interpretations thereunder, in each case as in effect
from time to time.
"Event of Default" shall have the meaning assigned in
Section 7.1.
"Foreign Currency Translation Adjustment" shall be
determined on a consolidated basis in accordance with GAAP and mean the amount
reflected on the Company's current Form 10-Q or Form 10- K, as applicable, for
Foreign currency translation adjustment.
"Funded Debt" shall mean Indebtedness which matures
more than one year from the date of creation or is directly or indirectly
renewable or extendible at the option of the Company to a date more than one
year from the date of creation, including the current maturities of such
Indebtedness but excluding deferred income taxes.
"GAAP" shall mean those generally accepted accounting
principles and practices which are recognized as such by the American Institute
of Certified Public Accountants acting through appropriate boards or committees
thereof and which are consistently applied for all periods so as to properly
reflect the financial condition, results of operations and cash flows of the
Company and its Subsidiaries.
"Government Authority" shall mean any nation or
government, any state or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, and any corporation or other entity
owned or controlled through stock or capital ownership or otherwise, by any of
the foregoing.
"Guarantor" shall mean SpeedFam Corporation, an
Illinois Corporation.
"Guaranty" shall mean the Amended and Restated
Guaranty of the Guarantor to First Chicago, BA, Norwest and to Firstar, dated
the date hereof in the form of EXHIBIT B, as amended, supplemented, modified, or
extended from time to time.
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"Hazardous Substance" shall mean any pollutant,
contaminant, waste or toxic or hazardous chemicals, wastes or substances,
including, without limitation, asbestos, urea formaldehyde insulation,
petroleum, PCB's, air pollutants, water pollutants, and other substances defined
as hazardous substances or toxic substances in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9061 et seq., Hazardous Materials Transportation Act, 49 U.S.C. Section 1802,
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., the
Toxic Substance Control Act of 1976, as amended, 15 U.S.C. Section 2601 et seq.,
the Solid Waste Disposal Act, 42 U.S.C. Section 3251 et seq., the Clean Air Act,
42 U.S.C. Section 1857 et seq., the Clean Water Act, 33 U.S.C. Section 1251 et
seq, Chapter 144 of the Wisconsin Statutes, or any other statute, rule,
regulation or order of any Government Authority having jurisdiction over the
control of such wastes or substances, including without limitation the United
States Environmental Protection Agency, the United States Nuclear Regulatory
Agency, the State of Illinois and the Xxxx County Department of Health.
"Indebtedness" shall mean all (a) indebtedness for
borrowed money; (b) indebtedness for the deferred purchase price of property or
services for which the Company or a Subsidiary is liable, contingently or
otherwise, as obligor, guarantor or otherwise; (c) commitments by which the
Company or a Subsidiary assures a creditor against loss, including, without
limitation, contingent reimbursement obligations with respect to letters of
credit; (d) obligations which are evidenced by notes, acceptances or other
instruments; (e) indebtedness guaranteed in any manner by the Company or a
Subsidiary, including, without limitation, guaranties in the form of an
agreement to repurchase or reimburse; (f) obligations under leases which are or
should be, in accordance with GAAP, recorded as capital leases for which
obligations the Company or a Subsidiary is liable, contingently or otherwise, as
obligor, guarantor or otherwise, or in respect of which obligations the Company
or a Subsidiary assures a creditor against loss; (g) unfunded obligations of the
Company or a Subsidiary to any Employee Plan; (h) liabilities secured by any
Lien on any Property owned by the Company or any Subsidiary even though it has
not assumed or otherwise become liable for the payment thereof; and (i) other
liabilities or obligations of the Company and its Subsidiaries which would, in
accordance with GAAP, be included on the liability portion of a balance sheet.
"Letters of Credit" shall mean the face amount (in
United States dollars or their United States dollar equivalent as calculated by
the Agent) of all standby and documentary letters of credit issued by the Agent
on behalf of the Banks at the request of the Company for its account pursuant to
Section 2.2.
"LIBOR Index Rate" shall mean with respect to a LIBOR
Rate Loan for any Loan Period, the rate of interest per annum
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determined by the Agent to be the average offered rate for deposits in U.S.
dollars for the applicable Loan Period (rounded up to the next whole multiple of
1/100 of 1%) which appear on the Reuters Screen LIBO Page (or such other page on
which the appropriate information may be displayed), on the electronic
communications terminals in the Agent's money center as of 10:00 a.m. (London
time) for the day two Business Days prior to the first day of the applicable
Loan Period. If fewer than two offered rates appear for a Loan Period, then the
applicable LIBOR Rate shall be the average of the rates per annum (rounded up to
the next whole multiple of 1/100 of 1%) at which deposits for a period of time
equal or comparable to the applicable Loan Period in immediately available funds
in United States dollars are offered to the Agent two Business Days prior to the
beginning of such Loan Period by at least four major banks in the London
interbank eurodollar market at or about 10:00 a.m. London time for delivery on
the first day of such Loan Period.
"LIBOR Interest Margin" shall mean 0.50% per annum,
subject to adjustment pursuant to Section 2.1(b)(ii).
"LIBOR Rate" for any Loan Period shall mean a rate
per annum equal to the sum of (a) the quotient of the LIBOR Index Rate divided
by the difference (expressed as a decimal) computed by subtracting the LIBOR
Reserve Requirement from one, plus (b) the LIBOR Interest Margin.
"LIBOR Rate Loans" shall mean Revolving Loans for
which the Company has selected the LIBOR Rate as the base rate of interest under
Section 2.1.
"LIBOR Reserve Requirement" shall mean, with respect
to each Loan Period, the stated rate of all reserve requirements (including all
basic, supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements
during such Loan Period) that is specified on the first day of such Loan Period
by the Board of Governors of the Federal Reserve System for determining the
reserve requirement with respect to eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D)
applicable to the Agent.
"Lien" shall mean any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), deed of trust, charge, preference, priority, security interest or other
security agreement or preferential arrangement of any kind or nature whatsoever
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the UCC or
comparable law of any jurisdiction.
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"Loan Account" shall mean an account on the books of
the Agent in which the Agent will record, pursuant to Section 2.5, Obligations
of the Company to the Banks, payments made upon such Obligations and other
advances, debits and credits pertaining to the Obligations.
"Loan Period" shall mean with respect to each LIBOR
Rate Loan, the period commencing on the date of such LIBOR Rate Loan and ending
one, two or three months thereafter, as the Company may elect in the notice of
borrowing under Section 2.1(c), provided that (a) any Loan Period which would
otherwise end on a day which is not a Business Day shall be extended to the next
succeeding Business Day unless the Loan Period would thereby be extended into
the next calendar month, in which case the Loan Period shall end on the
preceding Business Day, and (b) no Loan Period shall extend beyond the
Termination Date.
"Material Adverse Effect" shall mean (a) a Default,
(b) a material adverse change in the business, prospects or condition (financial
or otherwise) of the Company or the Guarantor or in any Property, (c) the
termination of any material agreement to which the Company or the Guarantor is a
party, (d) any material impairment of the right to carry on the business as now
or proposed to be conducted by the Company or the Guarantor, or (e) any material
impairment of the ability of the Company or the Guarantor to perform its
obligations under this Agreement or the Related Documents.
"Maximum Available Commitment" shall mean an amount
equal to the excess (if any) of (a) the Revolving Loan Commitment, minus (b) the
aggregate unpaid principal amount outstanding of all Revolving Loans made by the
Banks and the face amount of all outstanding Letters of Credit.
"Maximum Credit" shall mean the extension by the
Banks to the Company of aggregate Obligations up to the Revolving Loan
Commitment; provided that each Bank's independent obligation to extend credit is
limited to the following amounts:
Firstar $25,000,000
First Chicago $16,000,000
BA $10,000,000
Norwest $ 9,000,000
"Net Income" or "Net Loss" shall mean, for any
period, the net after-tax income (or net loss) of a Person on a consolidated
basis determined in accordance with GAAP, excluding the after-tax effect of the
sum of (a) any net earnings of any Subsidiary which are unavailable for the
payment of dividends, (b)
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interest in any net earnings of Persons in which a Person has an ownership
interest, other than Subsidiaries, not actually received (but not excluding
Equity in Net Earnings of Affiliates), (c) gains arising from a write-up of
assets (d) gains arising from the acquisition of any securities of the Person or
any Subsidiary, (e) gains resulting from the sale of any investments or capital
assets (except gains upon the disposition of machinery and equipment and
laboratory equipment used by the Company for demonstration purposes and shown on
the Company's books as fixed assets), (f) amortization of any deferred credit
arising from the acquisition of any Person or in the property or assets of any
Person, (g) earnings of any Subsidiary prior to the date it became a Subsidiary,
(h) earnings acquired by the Person or any Subsidiary through purchase, merger
or consolidation or otherwise for any period prior to the date of acquisition,
and (i) proceeds of any life insurance policies payable to the Person or any
Subsidiary.
"Net Worth" shall be determined on a consolidated
basis in accordance with GAAP and mean Total Shareholder's Equity for the
applicable period minus the Foreign Currency Translation Adjustment (gain or
loss) for the applicable period, excluding (a) any goodwill, patents,
trademarks, trade names, copyrights, operating rights, organizational or
developmental expenses, unamortized debt discount or expense, unamortized
deferred charges, and other assets properly classified as intangible assets, (b)
any write-ups of assets subsequent to the date of this Agreement, and (c) any
treasury stock.
"Obligations" shall mean the Revolving Loans, the
Letters of Credit, all mandatory prepayments, all costs and expenses and all
other Indebtedness of the Company to the Agent or the Banks, including, without
limitation, all liabilities under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements
designed to protect against fluctuations in interest rates or currency exchange
rates.
"Operating Profit" shall be determined on a
consolidated basis in accordance with GAAP and mean the amount reflected on the
Company's current Form 10-Q or Form 10-K, as applicable, for Operating Profit.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation established pursuant to Subtitle A of Title IV of ERISA.
"Permitted Liens" shall have the meaning assigned in
Section 6.3.
"Person" shall mean an individual, partnership,
corporation, firm, enterprise, business trust, joint stock company,
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trust, unincorporated association, joint venture, Government Authority or other
entity of whatever nature.
"Prime Rate" shall mean the interest rate publicly
announced by the Agent from time to time in Milwaukee, Wisconsin as its prime
rate for interest rate determinations, which is solely a reference rate and may
be at, above or below the rate or rates at which the Agent lends to other
Persons. Any change in the Prime Rate shall become effective as of the opening
of business on the day on which such change is publicly announced by the Agent.
"Property" shall mean any interest of the Company or
the Guarantor of any kind in property or assets, whether real, personal, mixed,
tangible or intangible, wherever located, and whether now owned or subsequently
acquired or arising and in the products, proceeds, additions and accessions
thereof or thereto.
"Pro Rata" shall mean ratably among the Banks in
proportion to the ratio that their respective Maximum Credits bear to the
aggregate Maximum Credit.
"Regulatory Change" shall mean the adoption or
amendment, after the date of this Agreement, of any federal or state law,
regulation, interpretation, direction, policy, guideline or court decision
applicable to any Bank or the London interbank eurodollar market which increases
the cost to such Bank of making or maintaining the Obligations or reduces the
rate of return to such Bank (by reduction of principal, interest or otherwise)
on the Obligations by subjecting such Bank to any tax, duty or other charge with
respect to the Obligations, imposing any reserve requirement (except any reserve
requirement reflected in the LIBOR Rate or the LIBOR Reserve Requirement),
affecting the treatment of any Obligation for purposes of calculating the
appropriate amount of capital to be maintained by such Bank or any Person
controlling such Bank, or imposing on such Bank any other condition affecting
the Obligations.
"Related Documents" shall mean the Revolving Credit
Notes, the Guaranty and all other certificates, resolutions, or other documents
required or contemplated hereunder.
"Requirements of Law" shall mean as to any matter or
Person, the Certificate or Articles of Incorporation and Bylaws or other
organizational or governing documents of such Person, and any law (including,
without limitation, any Environmental Law), ordinance, treaty, rule, regulation,
order, decree, determination or other requirement having the force of law
relating to such matter or Person and, where applicable, any interpretation
thereof by any Government Authority.
"Required Banks" shall mean Banks whose Maximum
Credits aggregate at least 66% of the aggregate Maximum Credits.
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"Restricted Payments" shall mean (a) dividends or
other distributions by the Company or the Guarantor, as the case may be, based
upon the stock of the Company or the Guarantor, as the case may be, (except
dividends payable solely in stock of the Company or the Guarantor, as the case
may be), (b) purchases, redemptions or other acquisitions, direct or indirect,
by the Company or the Guarantor, as the case may be, of stock of the Company or
the Guarantor, as the case may be, whether now or hereafter outstanding, and (c)
any other distribution by the Company or the Guarantor, as the case may be, in
respect of stock of the Company or the Guarantor, as the case may be, whether
now or hereafter outstanding, either directly or indirectly, whether in cash or
property or otherwise.
"Revolving Credit Notes" shall mean the promissory
notes from the Company to Firstar, First Chicago, BA and Norwest in the form of
EXHIBIT A-1 , EXHIBIT X-0, XXXXXXX X-0 AND EXHIBIT A-4, respectively, evidencing
the Revolving Loans, each as amended, supplemented, modified or extended from
time to time.
"Revolving Loan Commitment" shall mean an aggregate
principal amount not to exceed $60,000,000.
"Revolving Loans" shall mean the loans to the Company
pursuant to Section 2.1 evidenced by the Revolving Credit Notes.
"Subsidiary" shall mean as to any Person, a
corporation of which shares of stock having voting power (other than stock
having such power only by reason of the happening of a contingency that has not
occurred) sufficient to elect a majority of the board of directors or other
managers of such corporation are at the time owned, or the management of which
is otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person.
"Termination Date" shall mean August 31, 2000 or such
earlier date on which the Obligations shall terminate as provided in Section
7.2.
"Total Shareholders' Equity" shall be determined on a
consolidated basis in accordance with GAAP and mean the amount reflected on the
Company's current Form 10-Q or Form 10-K, as applicable, for Total shareholders'
equity.
"UCC" shall mean the Uniform Commercial Code of the
State of Wisconsin, as amended from time to time.
1.2 Accounting and Financial Determinations. Where the
character or amount of any asset or liability or item of income or expense is
required to be determined, or any accounting computation is required to be made,
for the purpose of this Agreement, except
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as specifically provided otherwise herein, such determination or calculation
shall be made on a consolidated basis so as to include the Company and its
Subsidiaries, if any, in each such calculation and, to the extent applicable and
except as otherwise specified in this Agreement, shall be made in accordance
with GAAP; provided, however, that if any change in GAAP from those applied in
the preparation of the financial statements referred to in Section 5.3 is
occasioned by the promulgation of rules, regulations, pronouncements and
opinions by or required by the American Institute of Certified Public
Accountants (or its boards or committees or successors thereto or agencies with
similar functions), the initial announcement of which change is made after the
date hereof, results in a change in the method of calculation of financial
covenants, standards or terms found in Section 6, the parties hereto agree to
enter into good faith negotiations in order to amend such provisions so as to
reflect such changes with the desired result that the criteria for evaluating
the Company's financial condition shall be the same after such changes as if
such changes had not been made; and provided, further, that until such time as
the parties hereto agree upon such amendments, such financial covenants,
standards and terms shall be construed and calculated as though no change had
taken place. When used herein, the term "financial statement" shall include
balance sheets, statements of earnings, statements of stockholders' equity,
statements of cash flows and the notes and schedules thereto, and each reference
herein to a balance sheet or other financial statement of the Company shall be
to a statement prepared on a consolidated and consolidating basis, unless
otherwise specified.
1.3 Interpretation. The words "hereof," "herein" and
"hereunder" and words of a similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement. Section, Schedule and Exhibit references contained in this Agreement
are references to sections, schedules and exhibits in or to this Agreement
unless otherwise specified. Any reference in any Section or definition to any
clause is, unless otherwise specified, to such clause of such Section or
definition.
1.4 Other Terms. Except as otherwise specifically provided,
each accounting term used herein shall have the meaning given to it under GAAP,
and all other terms contained in this Agreement (and which are not otherwise
specifically defined herein) shall have the meanings provided in the UCC to the
extent the same are used or defined therein unless the context otherwise
requires. Terms defined in other Sections of this Agreement shall have the
meanings set forth therein.
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SECTION 2 AMOUNTS AND TERMS OF OBLIGATIONS
2.1 Revolving Loans.
(a) Prior to the Termination Date and so long as no
Default has occurred, the Banks agree separately and independently (and
not jointly) on the terms and conditions set forth in this Agreement to
extend to the Company Revolving Loans from time to time in amounts not
to exceed in the aggregate at any one time outstanding the Revolving
Loan Commitment less the face amount of all outstanding Letters of
Credit. Revolving Loans shall be made by the Banks Pro Rata. Subject to
the terms of this Agreement, the Company may borrow, repay (in whole or
in part) and reborrow the Revolving Loans prior to the Termination
Date. The Revolving Loans made by each Bank shall be evidenced by their
respective Revolving Credit Notes.
(b) (i) From the date of the first Revolving Loan and
until all Revolving Loans are paid in full, the Company shall pay all
accrued and unpaid interest on the Revolving Loans on the first day of
each month. Prior to an Event of Default, interest shall accrue on the
aggregate unpaid principal amount from time to time outstanding under
the Revolving Credit Notes at a rate per annum equal to (a) the
applicable LIBOR Rate on each LIBOR Rate Loan , and (b) the Prime Rate
on Revolving Loans which are not LIBOR Rate Loans. Interest shall be
computed and adjusted daily based on the actual number of days elapsed
in a year of 360 days. All outstanding unpaid principal and accrued
interest on the Revolving Loans shall be due and payable on the
Termination Date for the Revolving Loans.
(ii) The initial LIBOR Interest Margin shall be 0.50%
per annum. If, at the end of any fiscal quarter after the date hereof,
the ratio of Funded Debt, as of the end of each fiscal quarter, to Cash
Flow, for the four quarters then ended, as shown on the Company's
financial statements for such quarters delivered to the Banks pursuant
to Sections 5.3(a) or (b), is less than 1.0 : 1.0, then the LIBOR
Interest Margin for all LIBOR Rate Loans shall be 0.50% per annum,
effective on the date of receipt of such financial statements by the
Banks. If, at the end of any fiscal quarter after the date hereof, the
ratio of Funded Debt, as of the end of each fiscal quarter, to Cash
Flow, for the four quarters then ended, is equal to or greater than 2.0
: 1.0, as shown on the Company's financial statements for such quarters
delivered to the Banks pursuant to Sections 5.3(a) or (b), then the
LIBOR Interest Margin for all LIBOR Rate Loans shall be equal to 1.00%
per annum, effective on the date of receipt of such financial
statements by the Banks. If, at the end of any fiscal quarter after the
date hereof, the ratio of Funded Debt, as of the end
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of each fiscal quarter, to Cash Flow, for the four quarters then ended,
is equal to or greater than 1.0 : 1.0 but less than 2.0 : 1.0, as shown
on the Company's financial statements for such quarters delivered to
the Banks pursuant to Sections 5.3(a) or (b), then the LIBOR Interest
Margin for all LIBOR Rate Loans shall be equal to 0.75% per annum,
effective on the date of receipt of such financial statements by the
Banks. The Agent shall promptly notify the Banks of any applicable
reduction or increase in the LIBOR Interest Margin.
(c) The Company may obtain Revolving Loans by making
a request therefor to the Agent, orally or in writing. Such request
shall specify a Business Day prior to the Termination Date on which
such Revolving Loans are to be made (the "Borrowing Date"), shall be
received by the Agent by 12:00 Noon (Milwaukee time) three Business
Days before the Borrowing Date in the case of LIBOR Rate Loans or
otherwise by 12:00 Noon (Milwaukee time) of the Borrowing Date, and
shall specify the amount of the Revolving Loans requested, whether the
Revolving Loans are to be LIBOR Rate Loans and, if so, the requested
Loan Period; provided, however, that within three days after any oral
request for a Revolving Loan which is a LIBOR Rate Loan, the Agent
shall receive from the Company a written confirmation in form
acceptable to the Agent confirming the Company's LIBOR Rate Loan
request, and the Banks' obligation to make further Revolving Loans
hereunder shall be suspended until such confirmation has been received
by the Agent. In the event of any inconsistency between the telephonic
notice and the written confirmation thereof, the telephonic notice
shall control. The Company shall be obligated to repay all Revolving
Loans notwithstanding the failure of the Agent to receive written
confirmation, and notwithstanding the fact that the person requesting
the Revolving Loan was not in fact authorized to do so. No Revolving
Loan request shall be modified, altered or amended without the prior
written consent of the Agent. Each Revolving Loan shall be in the
principal amount of the lesser of (i) $100,000 or a multiple thereof or
(ii) the Maximum Available Commitment; provided, however, that the
Company may not request LIBOR Rate Loans in an amount less than
$500,000 per request. The Agent shall promptly inform each Bank of each
Revolving Loan request. Each Bank shall make available to the Agent at
its principal office in Milwaukee, Wisconsin, in immediately available
funds and not later than 3:00 p.m. Milwaukee time on the Borrowing
Date, the amount of such Bank's Pro Rata share of such Revolving Loans.
Upon receipt by the Agent of the amount of a Bank's Revolving Loan and
fulfillment of the conditions specified in Section 4.2, the Agent shall
promptly deposit the amount of such Revolving Loan in the general
deposit account of the Company maintained at the Agent.
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(d) Revolving Loans which are not LIBOR Rate Loans
may be converted (in amounts not less than $500,000 and additional
increments of $100,000) into LIBOR Rate Loans by notice from the
Company to the Agent meeting the requirements of Section 2.1(c). At the
end of each respective Loan Period, LIBOR Rate Loans shall become
Revolving Loans which are not LIBOR Rate Loans unless and until the
Company converts such Revolving Loans to LIBOR Rate Loans.
(e) The Company may request LIBOR Rate Loans only so
long as the outstanding LIBOR Rate Loans bear no more than ten
different LIBOR Rates. The Agent may require any LIBOR Rate Loans to be
repaid prior to the Termination Date and may refuse to make LIBOR Rate
Loans in the event the Agent determines that (i) maintenance of the
LIBOR Rate Loans would violate any applicable Requirements of Law, (ii)
the interest rates on LIBOR Rate Loans do not accurately reflect the
cost of making such Revolving Loans, or (iii) deposits in the amount of
any LIBOR Rate Loan are not available to the Agent in the London
eurodollar interbank market.
(f) In the event any Bank shall incur any loss, cost,
expense or premium (including, without limitation, any loss of profit
or loss, cost, expense or premium incurred by reason of the liquidation
or reemployment of deposits or other funds acquired or contracted to be
acquired by such Bank to fund or maintain LIBOR Rate Loans or the
relending or reinvesting of such deposits or other funds or amounts
paid or prepaid to such Bank), as a result of:
(i) any payment of any LIBOR Rate Loans on a
date other than the last day of the then applicable Loan
Period for any reason, whether before or after Default, and
whether or not such payment is required by any provisions of
this Agreement; or
(ii) any failure by the Company to create,
borrow, continue or effect by conversion any LIBOR Rate Loans
on the date specified in a notice given pursuant to this
Agreement;
then upon the demand of such Bank, the Company shall pay to such Bank
such amount as will reimburse such Bank for such loss, cost, expense or
premium. If a Bank requests such a reimbursement it shall provide the
Company with a certificate setting forth the computation of the loss,
cost, expense or premium giving rise to the request for reimbursement
in reasonable detail and such certificate shall be deemed prima facie
correct.
(g) The Company may, upon one Business Day's prior
written notice to the Agent, permanently reduce the aggregate
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amount of the Revolving Loan Commitment; provided that no such
reduction shall reduce the aggregate amount of the Revolving Loan
Commitment to an amount less than the aggregate unpaid principal
balance of the Revolving Credit Notes and any outstanding Letters of
Credit on the effective date of such reduction. Each reduction in the
Revolving Loan Commitment shall be in a minimum amount of $100,000 and
in integral multiples of $100,000 above such minimum.
2.2 Letters of Credit. Prior to the Termination Date and so
long as no Default has occurred, the Agent may from time to time, in the sole
and absolute discretion of the Required Banks, issue Letters of Credit requested
by the Company. The Company shall execute and deliver to the Agent the Agent's
standard forms of agreements for irrevocable or standby documentary Letters of
Credit evidencing the Company's reimbursement obligation to the Agent and the
Banks. All outstanding Letters of Credit shall expire not later than the earlier
of one year from the date of issuance or the Termination Date. In no event shall
the aggregate amount of outstanding Letters of Credit exceed $10,000,000. Drafts
drawn upon Letters of Credit shall be treated as Revolving Loans and shall bear
interest at the rate of interest payable upon the Revolving Loans which are not
LIBOR Rate Loans.
2.3 Funding Procedures. Unless the Company or a Bank, 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 Bank, the proceeds of a
Revolving Loan or draw under a Letter of Credit as required hereunder or (ii) in
the case of the Company, a payment of principal, interest, fees or charges to
the Agent for the account of the Banks, 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 Bank or the
Company, 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 (a) in the case of payment by a Bank, the federal funds rate for each
of the first three business days after the date of funding (as determined by the
Agent) and thereafter at the interest rate applicable to the relevant
Obligation, or (b) in the case of payment by the Company, the interest rate
applicable to the relevant Obligation. A statement of the Agent submitted to the
Company or any Bank with respect to any amounts owing under this Section 2.3
shall be conclusive, in the absence of manifest error. The failure of one of the
Banks to make any Revolving Loan or loan respecting a draw under a Letter of
Credit as required hereunder shall not relieve any other Bank of its obligation
to lend its Pro Rata share of such
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Revolving Loan or Letter of Credit, hereunder, and in no event shall such other
Banks or the Agent be liable in any way whatsoever to the Company for such
failure of any Bank to make any Revolving Loan or loan respecting a Letter of
Credit hereunder.
2.4 Interest After Default. After an Event of Default, each of
the Obligations shall bear interest at the rate of 2% per annum in excess of the
applicable rates set forth herein; provided, that in the case of a LIBOR Rate
Loan the maturity of which is accelerated, such LIBOR Rate Loan shall bear
interest for the remainder of the applicable Loan Period at a rate equal to 2%
plus the higher of the rate on the LIBOR Rate Loan or the rate on Revolving
Loans which are not LIBOR Rate Loans. In no event shall the interest rate on the
Obligations exceed the highest rate permitted by law.
2.5 Loan Account. The Agent will enter as a debit to the Loan
Account the aggregate principal amount of each Obligation as disbursed or issued
from time to time by the Agent. The Agent shall also record in the Loan Account,
in accordance with the Agent's customary accounting practices: accrued interest
and all other charges, expenses and other items properly chargeable to the
Company hereunder or under the Related Documents; all payments made by the
Company with respect to the Obligations, if any; and all other appropriate
debits and credits. The debit balance of the Loan Account shall reflect the
amount of the Obligations and other appropriate charges hereunder. Not more
frequently than once each month, the Agent shall render a statement of account
of the Loan Account including, with respect to Revolving Loans, a statement of
the outstanding principal balance, Loan Period and applicable LIBOR Rate for
each LIBOR Rate Loan, which statement shall be considered correct and accepted
by the Company and conclusively binding upon the Company unless it notifies the
Agent to the contrary within 30 days of the mailing of such statement by the
Agent to the Company; provided, however, that the failure of the Agent to record
any of the foregoing items in the Loan Account shall not limit or otherwise
affect the Company's obligation to repay the Obligations.
2.6 Payments. Whenever any payment to be made hereunder shall
be stated to be due on a day which is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest on the
Obligations. Payments made by the Company to the Agent after 1:00 p.m. Milwaukee
time shall be credited on the next Business Day. The Agent may debit to the
depository accounts maintained by the Company with the Agent all payments on the
Obligations when due without prior notice to or consent of the Company, provided
that upon any such debit, the Agent will notify the Company of such debit
promptly.
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2.7 Prepayments.
(a) Optional Prepayments. The Company may at its
option, at any time and from time to time, prepay the Obligations, in
whole or in part. Partial prepayments shall be in the principal amount
of $100,000 or a multiple thereof, together with accrued interest to
the date of prepayment on the amount prepaid. There shall be no
prepayment premium or penalty except as provided in Section 2.1(f).
(b) Mandatory Prepayment. At any time that the
aggregate principal amount of Revolving Loans outstanding and face
amount of Letters of Credit outstanding hereunder exceeds the Revolving
Loan Commitment, the Company shall immediately pay the amount of such
excess in immediately available funds, together with interest accrued
on the amount of the payment.
2.8 Effect of Regulatory Change. In the event of a Regulatory
Change deemed by any Bank in good faith to be material, the Company shall pay to
such Bank (within ten days after notice by such Bank to the Company of such
Regulatory Change such notice which shall include a reasonably detailed
description of such Regulatory Change) such amounts as such Bank deems
reasonably necessary to compensate such Bank for the increase in the cost of
making or maintaining the Obligations or the reduction in the rate of return to
such Bank on the Obligations resulting from the Regulatory Change.
2.9 No Obligation to Extend or Forbear. The Company
acknowledges and agrees that the Agent and the Banks (a) upon execution hereof,
have no duty or obligation of any kind to, and have made no representations of
any kind or nature that the Banks will, extend credit or any other kind of
financial accommodations to the Company after the Termination Date, or forbear
at any time from the exercise of any of their rights or remedies under this
Agreement, the Related Documents and applicable law, and (b) may at any time, in
their sole and absolute discretion, exercise whatever rights and remedies the
Agent and the Banks may have under this Agreement, the Related Documents and
applicable law. All Obligations shall be due in full on the Termination Date
without further demand.
SECTION 3 REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement and
make and incur the Obligations as herein provided, the Company hereby represents
and warrants to the Agent and the Banks as follows:
3.1 Organization, Qualification and Subsidiaries. The Company
and the Guarantor each is a corporation duly organized and validly existing and
in good standing under the laws of the state
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or jurisdiction of its incorporation. The Company and the Guarantor each has the
corporate power and authority and all necessary licenses, permits and franchises
to borrow hereunder and to own its assets and conduct its business as presently
conducted. The Company and the Guarantor each is duly licensed or qualified to
do business and is in good standing in all jurisdictions in which the Company
and the Guarantor each has substantial property or business operations, and to
the best of the Company's knowledge, the Company and the Guarantor each has no
material liabilities as a result of a failure to qualify to do business as a
foreign corporation in any jurisdiction. All of the issued and outstanding
capital stock of the Company and the Guarantor has been validly issued and is
fully paid and non-assessable. Except as set forth on SCHEDULE 2, (a) the
Company has no Subsidiaries, (b) the Company does not own, directly or
indirectly, more than 1% of the total outstanding shares of any class of capital
stock of any other Person, and (c) there are no outstanding options, warrants or
other rights to subscribe for or purchase from the Company any capital stock of
the Company or securities convertible into or exchangeable for capital stock of
the Company.
3.2 Financial Statements. The Company has furnished to the
Banks year-end consolidated and consolidating financial statements for the
Company for its fiscal years ended May 31, 1997 and May 31, 1996, audited by
KPMG Peat, Marwick. All such financial statements are accurate and complete and
were prepared in accordance with GAAP (except that the interim financial
statements are subject to normal year-end audit adjustments) consistently
applied throughout the applicable periods, and present fairly the financial
condition of the Company as of such dates and the results of its operations and
cash flows for the periods then ended. The balance sheets and footnotes thereto
show all known liabilities, direct or contingent, of the Company and
Subsidiaries as of the respective dates thereof in accordance with GAAP. There
has been no Material Adverse Effect since the date of the latest of such
statements. The Company's fiscal year begins on June 1.
3.3 Authorization. The making, execution, delivery and
performance of this Agreement and the Related Documents by the Company have each
been duly authorized by all necessary corporate action. The valid execution,
delivery and performance of this Agreement, the Related Documents and the
transactions contemplated hereby and thereby, are not and will not be subject to
any approval, consent or authorization of any Government Authority. This
Agreement and the Related Documents are the valid and binding obligations of the
Company enforceable against the Company in accordance with their respective
terms.
3.4 Absence of Conflicting Obligations. The making, execution,
delivery and performance of this Agreement and the Related Documents and
compliance with their respective terms do not violate or constitute a default,
breach or violation under any
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Requirements of Law or any covenant, indenture, deed, lease, contract,
agreement, mortgage, deed of trust, note or instrument to which the Company or
the Guarantor is a party or by which it or the Guarantor is bound.
3.5 Taxes. The Company and the Guarantor have filed all
federal, state, foreign and local tax returns which were required to be filed,
except those returns for which the due date has been validly extended. The
Company and the Guarantor have paid or made provisions for the payment of all
taxes, assessments, fees and other governmental charges owed, and no tax
deficiencies have been proposed, threatened or assessed against the Company,
which should have a Material Adverse Effect on the Company or the Guarantor. The
federal income tax liability of the Company and the Guarantor has been finally
determined by the Internal Revenue Service and satisfied for all taxable years
up to and including the taxable year ended May 31, 1994 and there is no pending
or, to the best of the Company's knowledge, threatened tax controversy or
dispute as of the date hereof.
3.6 Absence of Litigation. There is no pending or, to the
knowledge of the Company, threatened litigation or administrative proceeding at
law or in equity against the Company or the Guarantor which would, if adversely
determined, result in a Material Adverse Effect, and, to the best of the
Company's knowledge after diligent inquiry, there are no presently existing
facts or circumstances likely to give rise to any such litigation or
administrative proceeding.
3.7 Accuracy of Information. All information, certificates or
statements given by the Company to the Banks under this Agreement and the
Related Documents were accurate, true and complete in all material respects when
given, continue to be accurate, true and complete as of the date hereof, and do
not contain any untrue statement or omission of a material fact necessary to
make the statements herein or therein not misleading. There is no fact known to
the Company which is not set forth in this Agreement, the Related Documents or
other documents, certificates or statements furnished to the Banks by or on
behalf of the Company in connection with the transactions contemplated hereby
and which will, or which in the future may (so far as the Company can reasonably
foresee), cause a Material Adverse Effect.
3.8 Ownership of Property. The Company and the Guarantor each
has good and marketable title to all of its Property, including without
limitation the Property reflected in the balance sheets referred to in Section
3.2. There are no Liens of any nature on any of the Property except Permitted
Liens. All Property useful or necessary in the Company's and the Guarantor's
business, whether leased or owned, is in good condition, repair (ordinary wear
and tear excepted) and working order and, to the best of the Company's knowledge
after diligent inquiry, conforms to
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all applicable Requirements of Law. The Company and the Guarantor each owns (or
is licensed to use) and possesses all such patents, trademarks, trade names,
service marks, copyrights and rights with respect to the foregoing as are
reasonably necessary for the conduct of the business(es) of the Company and the
Guarantor as now conducted and proposed to be conducted without, individually or
in the aggregate, any infringement upon rights of other Persons. SCHEDULE 3
contains a true, correct and complete list of all real estate owned by the
Company and the Guarantor.
3.9 Federal Reserve Regulations. The Company will not,
directly or indirectly use any proceeds of the Obligations to: (a) purchase or
carry any "margin stock" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System (12 C.F.R. 221, as amended); (b) extend
credit to other Persons for any such purpose or refund indebtedness originally
incurred for any such purpose; or (c) otherwise take or permit any action which
would involve a violation of Section 7 of the Securities Exchange Act of 1934,
as amended, or any regulation of the Board of Governors of the Federal Reserve
System.
3.10 ERISA. The Company and anyone under common control with
the Company under Section 4001(b) of ERISA is in compliance in all material
respects with the applicable provisions of ERISA and: (a) no "prohibited
transaction" as defined in Section 406 of ERISA or Section 4975 of the Code has
occurred; (b) no "reportable event" as defined in Section 4043 of ERISA has
occurred; (c) no "accumulated funding deficiency" as defined in Section 302 of
ERISA (whether or not waived) has occurred; (d) there are no unfunded vested
liabilities of any Employee Plan administered by the Company; and (e) the
Company or the plan sponsor has timely filed all returns and reports required to
be filed for each Employee Plan.
3.11 Places of Business. The principal place of business and
chief executive office of the Company is located at the address specified in
Section 9.6 for the Company, and the books and records of the Company and all
records of account are located and hereafter shall continue to be located at
such principal place of business and chief executive office.
3.12 Other Names. The business conducted by the Company has
not been conducted under any corporate, trade or fictitious name other than the
names of the Company, the Guarantor, FamTec International, Inc., Spitfire, a
division of the Guarantor, and Xxxxxx & Xxxxxx, a division of the Guarantor, and
following the date hereof the Company will not conduct its business under any
corporate, trade or fictitious name unless the Company shall have delivered at
least 30 days' prior written notice to the Agent of such name change.
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3.13 Not an Investment Company. The Company is not (a) an
"investment company" or a company "controlled by an investment company" within
the meaning of the Investment Company Act of 1940, as amended, or (b) a "holding
company" or a "subsidiary" of a "holding company" or an "affiliate of a "holding
company" or a "subsidiary" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
3.14 No Defaults. To the best of the Company's knowledge,
neither the Company nor the Guarantor is in default under or in violation of (a)
any Requirements of Law, (b) any covenant, indenture, deed, lease, agreement,
mortgage, deed of trust, note or other instrument to which the Company or the
Guarantor is a party or by which the Company or the Guarantor is bound, or to
which any Property is subject, or (c) any Indebtedness; or if any default or
violation under Sections 3.14(a), (b) or (c) exists, it is an immaterial default
or violation and the failure to cure such default or violation would not result
in a Material Adverse Effect.
3.15 Environmental Laws. To the best of the Company's
knowledge, the business of the Company and the Guarantor has been operated in
full compliance with all Environmental Laws noncompliance with which would
result in a Default and neither the Company nor the Guarantor is subject to any
Environmental Liability relating to the conduct of its business or the ownership
of its Property and no facts or circumstances exist which could give rise to
such Environmental Liabilities. No notice has been served on the Company or the
Guarantor claiming any violation of Environmental Laws, asserting Environmental
Liability or demanding payment or contribution for Environmental Liability or
violation of Environmental Laws.
3.16 Labor Matters. There are no labor disputes between the
Company or the Guarantor and any of their respective employees which
individually or in the aggregate, if resolved in a manner adverse to the Company
or the Guarantor, would result in a Material Adverse Effect.
3.17 Restricted Payments. Except for the payment of cash
dividends from the Guarantor to the Company from time to time, the Company and
the Guarantor have not, since the date of the most recent financial statements
referred to in Section 3.2, made any Restricted Payments.
SECTION 4 CONDITIONS PRECEDENT TO OBLIGATIONS
4.1 Initial Obligations. In addition to the terms and
conditions otherwise contained herein, the Company shall deliver or cause to be
delivered to the Agent, prior to or on the date of the Banks' first extension of
credit, each of the following items in form, detail and content satisfactory to
the Agent:
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(a) the executed Revolving Credit Notes;
(b) the executed Guaranty;
(c) a certificate of the secretary or an assistant
secretary of the Company, and the Guarantor certifying (i) an attached
complete and correct copy of its bylaws; (ii) an attached complete and
correct copy of resolutions duly adopted by its board of directors
which have not been amended since their adoption and remain in full
force and effect, authorizing the execution, delivery and performance
of this Agreement and the Related Documents to which it is a party;
(iii) that its articles of incorporation have not been amended since
the date of the last date of amendment thereto indicated on the
certificate of the secretary of state; and (iv) as to the incumbency
and specimen signature of each officer executing this Agreement and all
other Related Documents to which it is a party, and including a
certification by another officer as to the incumbency and signature of
the secretary or assistant secretary executing the certificate;
(d) the opinion of counsel for the Company and the
Guarantor in the form of EXHIBIT C;
(e) certificates of good standing for the Company,
and the Guarantor and certified copies of the Articles of Incorporation
for the Company and the Guarantor, all issued by the Office of the
Secretary of State of incorporation within 30 days of the date hereof;
(f) evidence that there are no Liens of record on the
Property other than Permitted Liens (including UCC information searches
in the names of the Company and the Guarantor of the filing records in
the offices of the Illinois Secretary of State, the Arizona Secretary
of State, the Texas Secretary of State and the Xxxx County and
Winnebago County, Illinois Register of Deeds); and
(g) such additional reasonable supporting documents
and materials as the Agent may request.
4.2 Subsequent Obligations. In addition to the terms and
conditions otherwise contained herein, the obligation of the Banks to make or
incur subsequent Obligations is subject to the satisfaction, on the date of
making or incurring each such Obligation, of the following conditions:
(a) All of the representations, warranties and
acknowledgments of the Company contained in this Agreement and the
Related Documents shall be true and accurate as if made on such date,
and each request by the Company for credit shall constitute an
affirmation by the Company that such
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representations, warranties and acknowledgements are then true and
accurate;
(b) There shall not exist on such date any Default
and no Default shall occur as the result of the making or incurring of
such Obligation;
(c) The aggregate principal amount of all Revolving
Loans outstanding and the face amount of all Letters of Credit
outstanding, together with the amount of any Revolving Loan requested
shall not exceed the Revolving Loan Commitment;
(d) The Agent shall have received executed loan
requests for all Revolving Loans which are LIBOR Rate Loans previously
requested by the Company and the matters certified therein and herein
shall have been true, correct and complete on the date thereof and
shall continue to be true and correct on the date of the requested
LIBOR Rate Loans; and
(e) Each of the Related Documents shall remain in
full force and effect.
SECTION 5 AFFIRMATIVE COVENANTS
The Company covenants and agrees that, from and after the date
of this Agreement and until the Termination Date and until the entire amount of
all Obligations to the Agent and the Banks are paid in full, it shall and shall
cause the Guarantor to (with respect to Sections 5.1, 5.2, 5.3(c) and (d), 5.4,
5.6, 5.7, 5.8 and 5.10):
5.1 Corporate Existence; Compliance With Laws; Maintenance of
Business; Taxes. (a) Maintain its corporate existence, licenses, permits, rights
and franchises; (b) comply in all material respects with all Requirements of
Law; (c) conduct its business substantially as now conducted and proposed to be
conducted; and (d) pay before the same become delinquent and before penalties
accrue thereon, all taxes, assessments and other government charges against it
and its Property, and all other liabilities except to the extent and so long as
the same are being contested in good faith by appropriate proceedings, with
adequate reserves having been provided.
5.2 Maintenance of Property; Insurance.
(a) Keep all Property useful and necessary in its
business, whether leased or owned, in good condition, repair and
working order (ordinary wear and tear excepted) and from time to time
make or cause to be made all needed and proper repairs, renewals,
replacements, additions and improvements so that the business carried
on in connection therewith may be properly and advantageously conducted
at all times.
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(b) Maintain with good, reputable and financially
sound insurance underwriters insurance of such nature and in such
amounts as is customarily maintained by companies engaged in the same
or similar business and such other insurance as may be required by law
or as may be reasonably required in writing by the Agent. All policies
shall require the insurer to endeavor to give the Agent 30 days prior
written notice of the modification, cancellation or nonrenewal of the
policy; the Company shall furnish copies of all such insurance policies
or a certificate evidencing that the Company has complied with the
requirements of this paragraph on the date hereof and on each renewal
date of such policies; and within 90 days after the end of each fiscal
year, the Company shall deliver to the Agent a schedule showing all
insurance policies in force as of the end of such year, signed by an
authorized officer of the Company.
5.3 Financial Statements. Maintain a standard and modern
system of accounting in accordance with sound accounting practice, and furnish
to the Banks such information respecting the business, assets and financial
condition of the Company as the Banks may reasonably request and, without
request furnish to the Banks:
(a) as soon as available, and in any event within 45
days after the end of each quarter of the Company's fiscal year,
financial statements including the Form 10-Q for the Company and
Subsidiaries certified as true, correct and complete, subject to review
and normal year-end adjustments, by the chief financial officer of the
Company;
(b) as soon as available, and in any event within 90
days after the close of each fiscal year, a copy of the Form 10-K for
such year for the Company and Subsidiaries, as of the end of such year,
as audited by independent certified public accountants of recognized
standing selected by the Company and satisfactory to the Agent, which
report shall be accompanied by (i) the unqualified opinion of such
accountants to the effect that the financial statements included with
the Form 10-K present fairly, in all material respects, the financial
position of the Company and Subsidiaries as of the end of such year and
the results of its operations and its cash flows for the year then
ended in conformity with GAAP; (ii) a certificate of such accountants
showing their calculation of the financial covenants contained herein
and stating that their review disclosed no Default or that their review
disclosed a Default and specifying the same and the action taken or
proposed to be taken with respect thereto; and (iii) any supplementary
comments and reports submitted by such accountants to the Company
including the management letter (when received), if any;
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(c) with the Form 10-Q described in Section 5.3(a),
the certificate of the president or chief financial officer of the
Company to the effect that (i) a review of the activities of the
Company during such period has been made under his supervision to
determine whether the Company has observed, performed and fulfilled
each and every covenant and condition in this Agreement and the Related
Documents together with a calculation of the financial covenants
contained herein, and (ii) no Default has occurred (or if such Default
has occurred, specifying the nature thereof and the period of existence
thereof and the steps, if any, being undertaken to correct the same);
and
(d) promptly upon learning of the occurrence of any
of the following, written notice thereof, describing the same and the
steps being taken with respect thereto: (i) the occurrence of any
Default, (ii) the institution of, or any materially adverse
determination or development in, any litigation, arbitration proceeding
or governmental proceeding, involving claims against, or potential
liability of, the Company or the Guarantor in excess of $3,000,000,
(iii) the occurrence of a "reportable event" under, or the institution
of steps by the Company or the Guarantor to withdraw from, or the
institution of any steps to terminate, any Employee Plan as to which
the Company or the Guarantor may have liability, (iv) the commencement
of any dispute which might lead to the modification, transfer,
revocation, suspension or termination of this Agreement or any Related
Document, or (v) any event which would have a Material Adverse Effect.
All financial statements referred to herein shall be complete and correct in all
material respects and shall be prepared in reasonable detail and on a
consolidated and consolidating basis in accordance with GAAP, applied
consistently throughout all accounting periods.
5.4 Inspection of Property and Records. At any reasonable time
following reasonable notice, as often as may be reasonably desired and at the
Company's expense, permit representatives of the Agent (and after an Event of
Default one or more of the Banks) to visit their Property, examine their books
and records and discuss their affairs, finances and accounts with their officers
and independent certified public accountants (who shall be instructed by the
Company to make available to the Banks, the Agent and/or their agents the work
papers of such accountants) and the Company shall facilitate such inspection and
examination.
5.5 Use of Proceeds. Except as set forth in Sections 6.6(h)
and (i) hereof, use the entire proceeds of the Obligations for working capital
and general corporate purposes of the Company and the Guarantor only (including
any payments required under Standby Letter of Credit No. S100408).
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5.6 Bank Accounts. Maintain its primary deposit accounts of
any kind with the Banks; provided, however, that the Company may maintain
investment accounts as permitted under Section 6.6 with non-bank financial
institutions.
5.7 Comply With, Pay and Discharge All Notes, Mortgages, Deeds
of Trust and Leases. Comply with, pay and discharge all existing notes,
mortgages, deeds of trust, leases, indentures and any other contractual
arrangements to which the Company or the Guarantor is a party (including,
without limitation, all Indebtedness) in accordance with the respective terms of
such instruments so as to prevent any default thereunder.
5.8 Environmental Compliance.
(a) Maintain at all times all permits, licenses and
other authorizations required under Environmental Laws, and comply in
all respects with all terms and conditions of the required permits,
licenses and authorizations and all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in the Environmental Laws.
(b) Notify the Agent promptly upon obtaining
knowledge that (i) any Property previously or presently owned or
operated is the subject of an environmental investigation by any
Government Authority having jurisdiction over the enforcement of
Environmental Laws, (ii) the Company or the Guarantor has been or may
be named as a responsible party subject to Environmental Liability, or
(iii) the Company obtains knowledge of any Hazardous Substance located
on any Property except in compliance with all Requirements of Law.
(c) At any reasonable time following reasonable
notice and as often as may be reasonably desired, permit the Agent or
an independent consultant selected by the Agent to conduct an
environmental audit satisfactory to the Agent for the purpose of
determining whether the Company or the Guarantor and the Property
comply with Environmental Laws and whether there exists any condition
or circumstance which may require a cleanup, removal or other remedial
action by the Company or the Guarantor with respect to any Hazardous
Substance. The Company shall facilitate such environmental audit. The
Agent shall provide the Company, at the Company's request, with all
reports and findings but the Company may not rely on such environmental
audit for any purpose. Any such environmental audit of Property shall
be at the Company's expense at any time following an Event of Default
or at any time the Property is the subject of an environmental
investigation by a Government Authority having jurisdiction over the
enforcement of Environmental Laws; provided, however, that the Agent's
environmental audit shall not be at the
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Company's expense if (i) a Government Authority or a firm or firms of
geotechnical engineers and/or environmental consultants hired by the
Company and reasonably acceptable to the Agent shall undertake to make
an environmental audit, and (ii) the Company shall provide the Agent at
the Company's expense with, and the Banks and the Agent shall be
entitled to rely on, all reports and findings of such Government
Authority or geotechnical engineers as soon as such reports and
findings are made available to the Company; and, provided further, that
the Company's obligation to pay for any such environmental audit shall
be limited to an amount not to exceed $3,000 per audit in cases where
such audit is not related to an environmental investigation by a
Government Authority or other potential Environmental Liability of the
Company.
NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THIS AGREEMENT, OR IN THE
RELATED DOCUMENTS, OR IN THE ENFORCEMENT OF THIS AGREEMENT OR THE RELATED
DOCUMENTS, SHALL CONSTITUTE OR BE CONSTRUED AS GRANTING OR PROVIDING THE RIGHT,
POWER OR CAPACITY TO THE BANKS OR THE AGENT TO EXERCISE (A) DECISION MAKING
CONTROL OF THE COMPANY'S COMPLIANCE WITH ANY ENVIRONMENTAL LAW, OR (B) DAY TO
DAY DECISION MAKING OF THE COMPANY OR ANY SUBSIDIARY WITH RESPECT TO (I)
COMPLIANCE WITH ENVIRONMENTAL LAWS OR (II) ALL OR SUBSTANTIALLY ALL OF THE
OPERATIONAL ASPECTS OF THE COMPANY.
5.9 Fees and Costs.
(a) Pay the Agent for the ratable account of the
Banks on the first day of January and on the first day of April, July
and October thereafter while Revolving Loans are outstanding a
commitment fee, calculated daily based on the actual number of days
elapsed in a year of 360 days, equal to .25% of the difference between
the Revolving Loan Commitment and the outstanding principal balance of
the Revolving Loans plus the face amount of all outstanding Letters of
Credit. The commitment fee shall be computed and adjusted daily based
on the actual number of days elapsed in a year of 360 days. All unpaid
commitment fees shall be due and payable on the Termination Date. The
Agent may debit to the Company's Loan Account all commitment fees when
due without consent of the Company provided that the Agent notifies the
Company of same within one (1) Business Day thereof.
(b) Pay the Agent and the Banks all additional costs
including, without limitation, wire transfer or other charges
pertaining to the transfer of funds, lockbox fees and charges arising
from returned or dishonored checks of any account debtor.
(c) Pay, for the benefit of the Banks' Pro Rata, the
Agent's standard fees for Letters of Credit which may be
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adjusted from time to time in the Agent's sole and absolute discretion.
(d) Pay within fifteen (15) days of receipt of an
invoice, the reasonable fees and expenses incurred by the Banks' and/or
the Agent in connection with any inspection pursuant to and to the
extent provided in Section 5.4.
(e) Except as otherwise provided in clause (f) below,
pay within fifteen (15) days of receipt of an invoice all reasonable
fees and expenses incurred by the Agent and the Banks with respect to
this Agreement, the Related Documents and the Obligations, and any
amendments thereof and supplements thereto, including, without
limitation, appraisal fees, environmental inspection fees (to the
extent provided in Section 5.8(c)) and the reasonable fees of in-house
and outside counsel in connection with the preparation and negotiation
of this Agreement, the Related Documents and all amendments thereto and
any waivers of the terms and provisions thereof and the consummation of
the transactions contemplated herein.
(f) Pay immediately upon receipt of an invoice all
reasonable fees and expenses incurred by the Banks and the Agent with
respect to protection or enforcement (including collection and
disposition of Property) of the Agent's and/or the Banks' rights under
this Agreement and the Related Documents and with respect to the
Obligations and all costs and expenses which may be incurred by the
Agent and/or the Banks with respect to a Default as provided in Section
7.2.
5.10 Indemnity. Indemnify the Agent, the Banks and their
respective employees, officers, directors, shareholders, agents, attorneys,
successors and assigns against any and all losses, claims, damages, liabilities,
obligations, penalties, actions, judgments, suits, costs and expenses of any
kind or nature whatsoever, including without limitation reasonable attorneys'
fees and expenses, incurred by them arising out of, in any way connected with,
or as a result of (a) this Agreement or the Related Documents or the
transactions contemplated hereby or protection or enforcement (including
collection or disposition of Property) of the Agent's and the Banks' rights
under this Agreement or the Related Documents, (b) the execution and delivery of
this Agreement by the parties hereto and the performance of their respective
obligations hereunder, (c) any violation of Environmental Laws by the Company,
any Subsidiary or any of its Property as well as any cost or expense incurred in
remedying such condition, and (d) any claim, litigation, investigation or
proceedings relating to any of the foregoing, whether or not the Agent and/or
the Banks' are a party thereto; provided, however, that such indemnity shall not
apply to any such losses, claims, damages, liabilities or related expenses to
the extent caused by (i) any breach by the Agent or a
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Bank of its obligations under this Agreement, (ii) any commitment made by the
Agent or a Bank to any Person other than the Company which would be breached by
the performance of the Agent or such Bank's obligations under this Agreement,
(iii) any dispute between the Banks not resulting from or in any way related to
any breach of this Agreement or Related Documents by the Company or (iv) any
negligence or willful misconduct of the Agent or a Bank or its employees,
officers or agents. The foregoing indemnities shall survive the Termination
Date, the consummation of the transactions contemplated by this Agreement, the
repayment of the Obligations and the invalidity or unenforceability of any term
or provision of this Agreement or of the Related Documents and shall remain in
effect regardless of any investigation made by or on behalf of the Banks or the
Company and the content or accuracy of any representation or warranty made under
this Agreement.
5.11 [INTENTIONALLY OMITTED]
5.12 SEC Reports. Within ten days after transmission thereof,
the Company shall deliver to each Bank copies of all financial statements, proxy
statements, reports and any other general written communications which the
Company sends to its stockholders and copies of all registration statements and
all regular, special or periodic reports which it files, with the Securities and
Exchange Commission or with any securities exchange on which any of its
securities are then listed, and copies of all press releases and other
statements made available generally by the Company to the public concerning
material developments relating to the Company's and each of its Subsidiary's
businesses.
SECTION 6 NEGATIVE COVENANTS
The Company covenants and agrees that, from and after the date
of this Agreement and until the Termination Date and until all Obligations to
the Agent and the Banks are paid in full, the Company shall not and shall cause
the Guarantor to not (with respect to Sections 6.1, 6.2, 6.3, 6.4, 6.6 and 6.7)
directly or indirectly:
6.1 Sale of Assets, Consolidation, Merger, Etc. (a) Except for
sales of inventory, demonstration or laboratory machinery and equipment held for
sale in the ordinary course of business, in any fiscal year of the Company sell,
lease, transfer or otherwise dispose of Property having an aggregate net book
value in excess of $3,000,000, whether in one or in a series of transactions;
(b) consolidate or merge with or into any other Person; (c) directly or
indirectly, sell or transfer any Property, real or personal, used or useful in
its business, and thereafter lease such property or other property which it
intends to use for substantially the same purposes (provided, however, that the
Company has entered into certain capital leases as set forth on
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SCHEDULE 4 and the Company may enter into additional sale/leaseback transactions
having an aggregate value at any one time not exceeding $10,000,000); or (d)
except in connection with the purchase of securities or assets permitted under
Section 6.6(i), create or permit any Subsidiary to create a new Subsidiary.
6.2 Indebtedness. Issue, create, incur, assume or otherwise
become liable with respect to (or agree to issue, create, incur, assume or
otherwise become liable with respect to), or permit to remain outstanding, any
Indebtedness except (a) the Obligations; (b) Indebtedness which has been
subordinated to the Banks in form and substance satisfactory to the Banks; (c)
current liabilities (other than for borrowed money) of the Company and the
Guarantor incurred in the ordinary course of business which are not more than 90
days overdue, unless being contested in good faith and with due diligence; (d)
Indebtedness secured by Permitted Liens; (e) Indebtedness disclosed on the
Company's most recent financial statements described in Section 3.2, provided
that such Indebtedness shall not be increased; (f) operating lease or rental
obligations as permitted under Section 6.12 and (g) Indebtedness in an aggregate
amount of not more than $3,000,000 in excess of the amounts permitted by
Sections 6.2(a), (b), (c), (d), (e)and (f).
6.3 Liens. Create or permit to be created or allow to exist
any Lien upon or interest in any Property except Permitted Liens. For purposes
herein, Permitted Liens shall mean: (a) Liens for taxes, assessments (including
industrial park assessments), or governmental charges, carriers',
warehousemen's, repairmen's, mechanics', materialmen's and other like Liens,
which are either not delinquent or are being contested in good faith by
appropriate proceedings which will prevent foreclosure of such Liens, and
against which adequate cash reserves have been provided; (b) easements,
restrictions, minor title irregularities and similar matters which have no
material adverse effect upon the ownership and use of the affected Property; (c)
Liens or deposits in connection with worker's compensation, unemployment
insurance, social security or other insurance or to secure customs duties,
public or statutory obligations in lieu of surety, stay or appeal bonds, or to
secure performance of contracts or bids, other than contracts for the payment of
money borrowed, or deposits required by law as a condition to the transaction of
business or other Liens or deposits of a like nature made in the ordinary course
of business; (d) Liens evidenced by conditional sales, purchase money mortgages
or other title retention agreements on machinery and equipment (acquired in the
ordinary course of business and otherwise permitted to be acquired hereunder)
which are created at the time of the acquisition of such property solely for the
purposes of securing the Indebtedness incurred to finance the cost of such
property, provided no such Lien shall extend to any property other than the
property so acquired and identifiable proceeds; and (e) Liens described in
SCHEDULE 4, provided that the Indebtedness secured thereby shall not be
increased.
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6.4 Guaranty. Guaranty or otherwise in any way become or be
responsible for obligations of any other Person, whether by an agreement to
purchase the indebtedness of any other Person, or agreement for the furnishing
of funds to any other Person through the purchase of goods, supplies or services
(or by way of stock purchase, capital contribution advanced or loaned) for the
purpose of paying or discharging the indebtedness of any Person, or otherwise,
except for the endorsement of negotiable instruments by the Company for deposit
or collection or similar transactions in the ordinary course of business.
6.5 Restricted Payments. Make any Restricted Payments;
provided, however, that, so long as no Default has occurred and is continuing or
will occur as a result of any payment, (a) the Company may pay dividends in an
amount not to exceed $5,000,000 per fiscal year and (b) the Guarantor may pay
dividends, without restriction, solely to the Company.
6.6 Loans, Investments. Make or commit to make advances,
loans, extensions of credit or capital contributions to, or purchases of any
stock, bonds, notes, debentures or other securities of, or make any other
investment in, any Person except: (a) accounts, chattel paper, and notes
receivable created by the Company in the ordinary course of business, including
intercompany loans to Subsidiaries in an aggregate amount not to exceed
$1,000,000 at any time; (b) advances in the ordinary course of business to
suppliers, employees and officers of the Company consistent with past practices;
(c) investments in bank certificates of deposit (but only with FDIC-insured
commercial banks having a combined capital and surplus in excess of
$20,000,000), open market commercial paper maturing within one year having the
highest rating of either Standard & Poors Corporation or Xxxxx'x Investors
Services, Inc., U.S. Treasury Bills subject to repurchase agreements and
short-term obligations issued or guaranteed by the U.S. Government or any agency
thereof; (d) investments in open-end diversified investment companies of
recognized financial standing investing solely in short-term money market
instruments consisting of securities issued or guaranteed by the United States
government, its agencies or instrumentalities, time deposits and certificates of
deposit issued by domestic banks or London branches of domestic banks, bankers
acceptances, repurchase agreements, high grade commercial paper and the like;
(e) Eurodollar certificates of deposit in a financial institution of recognized
standing with a rating by Xxxxxxxx'x BankWatch of BC or better; (f) investments
outstanding on May 31, 1997 and shown on the financial statements referred to in
Section 3.2 above (provided that such investments shall not be increased except
as attributable to increases in equity resulting from earnings of foreign
Affiliates); (g) approved investments as set forth on SCHEDULE 1 attached
hereto; (h) so long as no Default has occurred or will occur as a result of
making such loan, proceeds of the Revolving Loans of up to $5,000,000 in the
aggregate at any time outstanding
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may be used to make intercompany loans to non-U.S. Subsidiaries; and (i) so long
as no Default has occurred or will occur as a result of making such purchase and
provided that the acquiring entity will execute or shall have previously
executed a guaranty in favor of the Banks of all the Obligations in
substantially the same form as the Guaranty, proceeds of the Revolving Loans of
up to $20,000,000 in the aggregate at any time outstanding may be used to
purchase securities in, or assets of, any Person in connection with the purchase
of a business which is consistent with and similar to the existing business of
the Company, the Guarantor or any other Subsidiary; provided, that for Sections
6.6(a) through (f), each such investment has a maturity date not later than 365
days after the date of purchase or making thereof.
6.7 Compliance with ERISA. (a) Terminate any Employee Plan so
as to result in any material liability to PBGC; (b) engage in any "prohibited
transaction" (as defined in Section 4975 of the Code) involving any Employee
Plan which would result in a material liability for an excise tax or civil
penalty in connection therewith; or (c) incur or suffer to exist any material
"accumulated funding deficiency" (as defined in Section 302 of ERISA), whether
or not waived, involving any condition, which presents a risk of incurring a
material liability to PBGC by reason of termination of any such Employee Plan.
6.8 Net Worth. Permit Net Worth of the Company at any time to
be less than (a) $125,000,000 plus (b) all net proceeds from the issuance of
shares of all capital stock of the Company after the date hereof on a cumulative
basis plus (c) 50% of the Company's Net Income (but not Net Loss) for each
fiscal year of the Company ending after May 31, 1997 on a cumulative basis.
6.9 Interest Coverage Ratio. Permit the ratio of Operating
Profit plus depreciation expense to the interest on the Indebtedness to be less
than 3.0 to 1.0 for any fiscal quarter. For purposes of this calculation,
interest expense shall never be less than $1.00.
6.10 Funded Debt to Cash Flow. Permit the ratio of Funded
Debt, as of the end of each fiscal quarter, to Cash Flow, for the four quarters
then ended, to be greater than 3.0 to 1.0, as of the end of each fiscal quarter
during the term of this Agreement.
6.11 Funded Debt to Capitalization. Permit Funded Debt to
exceed forty percent (40%) of Capitalization at any time.
6.12 Operating Leases. Incur or permit to be outstanding as
lessee operating lease or rental obligations during any fiscal year, including,
without limitation, operating lease or rental obligations of its Subsidiaries,
in an aggregate amount exceeding $5,000,000.
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SECTION 7 DEFAULT AND REMEDIES
7.1 Events of Default Defined. Any one or more of the
following shall constitute an "Event of Default":
(a) the Company shall fail to pay any Obligation
(including, without limitation, the Revolving Credit Notes and the
payments required by Sections 2.7(b) and 5.9) when and as the same
shall become due and payable, whether upon demand, at maturity, by
acceleration or otherwise, which Default shall remain uncured for a
period of five days after written notice thereof is given by the Agent
to the Company;
(b) the Company shall fail or fail to cause the
Guarantor to observe or perform any of the covenants, agreements or
conditions contained in Sections 4.1, 4.2, 5.1(a), 5.2(b), 5.4, 5.6,
5.8(a), or any provision of Section 6;
(c) the Company or the Guarantor shall default (as
principal or guarantor or otherwise) in the payment of any other
Indebtedness aggregating $1,000,000 or more, or with respect to any of
the provisions of any agreement evidencing such Indebtedness, and such
default shall continue beyond any period of grace, if any, specified in
such agreement, unless the Company or the Guarantor is contesting such
default in good faith and the Banks agree, in their sole discretion,
that the Company or the Guarantor is so contesting such default;
(d) the Company shall fail to observe or perform any
of the other covenants, agreements or conditions contained in this
Agreement or the Related Documents and such failure shall continue for
thirty days after either written notice thereof is given by the Agent
to the Company or the chief executive officer or treasurer of the
Company has actual notice thereof;
(e) any representation or warranty made by the
Company herein or in any of the Related Documents or in any
certificate, document or financial statement delivered to the Agent or
the Banks shall prove to have been incorrect in any material adverse
respect as of the time when made or given;
(f) a final judgment (or judgments) for the payment
of amounts aggregating in excess of $1,000,000 shall be entered against
the Company or any Guarantor, and such judgment (or judgments) shall
remain outstanding and unsatisfied, unbonded or unstayed after sixty
days from the date of entry thereof;
(g) the Company or any Guarantor shall (i) become
insolvent or take or fail to take any action which constitutes
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an admission of inability to pay its debts as they mature; (ii) make an
assignment for the benefit of creditors; (iii) petition or apply to any
tribunal for the appointment of a custodian, receiver or any trustee
for the Company or any Guarantor or a substantial part of its
respective assets; (iv) suffer any such custodianship, receivership or
trusteeship to continue undischarged for a period of thirty days or
more; (v) commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or
statute of any jurisdiction, whether now or hereafter in effect; (vi)
by any act or omission indicate its consent to, approval of or
acquiescence in any such petition, application or proceeding or order
for relief or the appointment of a custodian, receiver or any trustee
for it or any substantial part of any of its properties; or adopts a
plan of liquidation of its assets;
(h) if any Person shall: (i) petition or apply to any
tribunal for the appointment of a custodian, receiver or any trustee
for the Company or any Guarantor or a substantial part of its
respective assets which continues undischarged for a period of thirty
days or more; (ii) commence any proceeding against the Company or
Guarantor under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect, in which an order for
relief is entered or which remains undismissed for a period of thirty
days or more;
(i) any Government Authority or any geotechnical
engineer or environmental consultant hired by the Company, the Agent or
a Bank or any Government Authority shall determine that the potential
uninsured liability of the Company for damages caused by the discharge
of any Hazardous Substance, including liability for real property
damage or remedial action related thereto or liability for personal
injury claims, exceeds $3,000,000 and the Company is unable to provide
for such liability in a manner reasonably acceptable to the Banks;
(j) the Company shall cease to own 100% of the
Guarantor or a majority of each class of voting stock of each other
Subsidiary; and
(k) this Agreement or any of the Related Documents
shall at any time cease to be in full force and effect, or the Company
or any Guarantor shall contest or deny any liability or obligation
under, or attempt to revoke or terminate, this Agreement or any Related
Document.
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7.2 Remedies Upon Event of Default. Upon the occurrence of an
Event of Default:
(a) specified in clauses (g) or (h) of Section 7.1,
then, without presentment, notice, demand or action of any kind by the
Agent or the Banks, all of which are hereby waived: (i) the Revolving
Loan Commitment and the obligations of the Banks to make or incur any
Obligations shall automatically and immediately terminate; and (ii) the
entire amount of the Obligations shall be automatically accelerated and
immediately due and payable.
(b) specified in clauses (a), (b), (c), (d), (e),
(f), (i) or (j) of Section 7.1, the Banks may, without presentment,
notice, demand or action of any kind, all of which are hereby waived:
(i) immediately terminate their respective obligations to make or incur
any Obligations, and the same shall immediately terminate; and (ii)
declare the entire amount of the Obligations immediately accelerated,
due and payable.
(c) the Company shall immediately deposit with the
Agent for the ratable account of the Banks an amount equal to the
undrawn face amount of all outstanding Letters of Credit to pay all
amounts which may thereafter be drawn under the Letters of Credit.
(d) the Agent and/or the Banks may at any time
without prior notice or demand set off against any credit balance or
other money now or hereafter owed it by the Agent and/or the Banks all
or any part of the Company's obligations (to the Agent and/or the
Banks, as the case may be) hereunder. The Company hereby grants to the
Agent and the Banks, as the case may be, a security interest in and
lien on any such credit balance or other money.
(e) the Banks shall have all of the rights and
remedies provided to the Banks and to the Agent by the Related
Documents, at law and in equity, by statute or otherwise, and no remedy
herein conferred upon the Banks or the Agent is intended to be
exclusive of any other remedy and each remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or
hereafter existing at law, in equity, by statute or otherwise. In
addition to and not in lieu of any other right or remedy the Banks
might have, the Agent at any time and from time to time at the
direction of the Required Banks may (but shall not be required to) do
or perform or comply with or cause to be done or performed or complied
with anything which the Company may be required to do, perform or
comply with and the Company shall reimburse the Agent or the Banks upon
demand for any cost or expense which the Agent or the Banks may incur
in such respect, together
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with interest thereon at the rate equal to the rate payable under the
Revolving Credit Notes following an Event of Default from the date of
such demand until paid. No failure or delay on the part of the Agent or
the Banks in exercising any right or remedy hereunder shall operate as
a waiver thereof nor shall any single or partial exercise of any right
hereunder preclude any further exercise thereof or the exercise of any
other right or remedy.
SECTION 8 RELATIONSHIP OF AGENT AND BANKS
8.1 Appointment. Firstar is hereby appointed Agent hereunder
and under the Related Documents, and each of the Banks irrevocably authorizes
the Agent to act as the agent of such Bank. The Agent agrees to act as such upon
the express conditions contained in this Section 8. The Agent shall not have a
fiduciary relationship in respect of any Bank by reason of this Agreement or the
Related Documents.
8.2 Powers. The Agent shall have and may exercise such powers
hereunder as are specifically delegated to the Agent by the terms hereof,
together with such powers as are reasonably incidental thereto. The Agent shall
have no implied duties to the Banks, or any obligation to the Banks to take any
action hereunder except any action specifically provided by this Agreement to be
taken by the Agent.
8.3 Action on Instructions of Banks.
(a) The Agent shall in all cases be fully protected
in acting, or in refraining from acting, hereunder or under the Related
Documents in accordance with written instructions signed by the
Required Banks (or all Banks, if required by Section 8.4 hereof), and
such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Banks and on all holders of
Revolving Credit Notes and all other Obligations. The Agent may at any
time request instructions from the Banks with respect to any action or
approval that, by the terms of this Agreement, the Agent is permitted
or required to take or to grant, and if such instructions are
requested, the Agent shall be absolutely entitled to refrain from
taking any action or to withhold any approval and shall not be under
any liability whatsoever to any Person for refraining from any action
or withholding any approval under this Agreement until it shall have
received such instructions by the Required Banks (or all Banks, if
required by Section 8.4 hereof); provided, however, that the Agent
shall not in any event be required to comply with any instructions
given it by the Required Banks (or all Banks, if required by Section
8.4 hereof) if the Agent determines that such compliance would expose
it to a material personal liability or is contrary to law or to the
terms of this
35
41
Agreement or the Related Documents, but the Banks shall in all events
indemnify the Agent from any action taken by it in accordance with the
instructions of the Required Banks. No Bank shall have any right of
action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder or under the Related Documents in
accordance with instructions by the Required Banks.
(b) Without limiting the foregoing, the Agent shall
not be required to take any action with respect to any Default except
in accordance with Section 7.2 and this Section. The Agent shall be
entitled to assume that no Default has occurred and is continuing
unless the Agent has actual knowledge of such facts or has received
notice from a Bank in writing that such Bank considers that a Default
has occurred and is continuing, and which specifies the nature thereof.
In the event that the Agent shall acquire actual knowledge of any
Default, the Agent shall promptly notify (either orally or in writing)
the Banks, and the Company of such Default. If directed by the Required
Banks (or all Banks, if required by Section 8.4 hereof), the Agent
shall make demand under the Revolving Credit Notes, the Letters of
Credit and all other Obligations and take such action and assert such
rights as are contemplated under this Agreement and the Related
Documents.
8.4 Amendments. The Required Banks (or the Agent with the
consent in writing of the Required Banks) and the Company may enter into
agreements supplemental hereto for the purpose of adding or modifying any
provisions of this Agreement or the Related Documents or changing in any manner
the rights of the Banks or the Company hereunder or waiving any Default
hereunder; provided, however, that no such waiver or amendment shall, unless in
writing and signed by all of the Banks and the Company and acknowledged by the
Agent, do any of the following:
(a) increase or extend the Maximum Credit of any Bank (or
reinstate any Maximum Credit terminated pursuant to Section
2.1(g);
(b) postpone or delay any date fixed by this Agreement or any
Related Document for any payment of principal, interest, fees
or other amounts due to the Banks (or any of them) hereunder
or under any other Related Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Revolving Loan, or any fees or other amounts
payable hereunder or under any other Related Document;
(d) change the percentage of the Maximum Credits or the aggregate
unpaid principal amount of the Revolving Loans
36
42
which is required for the Banks or any of them to take any
action hereunder;
(e) release or terminate the Guaranty; or
(f) amend this Section, the definition of "Required Banks" in
Section 1.1 or any provision herein providing for consent or
other action by all Banks;
and, provided, further, that no amendment of any provision of this Agreement
relating to the Agent shall be effective without the prior written consent of
the Agent.
8.5 Application of Payments. All payments of principal and
interest with respect to the Obligations shall be made to the Agent in
immediately available funds for the ratable account of the Banks. The Agent
shall promptly distribute to each Bank, Pro Rata, the amount of (a) principal
and interest received by the Agent, (b) each Bank's Pro Rata share of any fees,
expenses or charges collected by Agent, and (c) all amounts received by the
Agent upon realization from the Property. Any payment in good funds to the Agent
for the account of a Bank hereunder shall constitute a payment by the Company to
such Bank of the amounts so paid to the Agent, and any Obligations or portions
thereof so paid shall not be considered outstanding for any purpose after the
date of such payment in good funds to the Agent. Notwithstanding the foregoing,
for purposes of clause (c) above, the parties acknowledge that all amounts
received by the Agent upon realization of the Property shall be applied Pro
Rata. All payments or prepayments of principal and interest shall be made Pro
Rata in accordance with the amounts of the Obligations then outstanding. In the
event any Bank shall receive from the Company or any other source any payment
of, on account of, any of the Obligations (whether pursuant to the exercise of
any right of setoff, banker's lien, realization upon any security held for or
appropriated to such obligation, counterclaim or otherwise) other than as
provided above, then such Bank shall immediately purchase, without recourse and
for cash, an interest in the obligations of the same nature held by the other
Banks so that each Bank shall thereafter have a percentage interest in all of
such obligations equal to the percentage interest which such Bank held in the
relevant Obligations immediately before such payment; provided, if any payment
so received shall be recovered in whole or in part from such purchasing Bank,
the purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest. The Company specifically acknowledges and
consents to the preceding sentence.
8.6 General Immunity. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable to the Banks or any
Bank for any action taken or omitted to be taken by it or them hereunder or in
connection herewith except for its or their own gross negligence or willful
misconduct.
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43
8.7 No Responsibility for Loans, Recitals, Etc. The Agent
shall not be responsible to the Banks for any recitals, reports, statements,
warranties or representations herein or in any Related Document or be bound to
ascertain or inquire as to the truth or accuracy of the statements or reports of
the Company or any of its Subsidiaries with regard to the performance or
observance of any of the terms of this Agreement.
8.8 Employment of Agents and Counsel. The Agent may execute
any of its duties as Agent hereunder and under the Related Documents by or
through employees, agents, and attorneys-in-fact and shall not be liable to the
Banks for the default or misconduct of any such employees, agents or
attorneys-in-fact selected by it with reasonable care, except as to money or
securities received by it or its authorized agents. The Agent shall be entitled
to advice of counsel concerning all matters pertaining to the agency hereby
created and its duties hereunder and under the Related Documents. The Company
shall be responsible for all costs and expenses of the Agent, including
reasonable attorneys' fees of in-house and outside counsel.
8.9 Reliance on Documents, Counsel. The Agent shall be
entitled to rely upon any Revolving Credit Note, request for a Letter of Credit,
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.
8.10 Inspections. At the request of the Banks from time to
time, the Agent shall conduct its customary review of the Company's financial
and collateral records and the Property in accordance with Section 5.4. To
assist each Bank in its own investigation of the Company and the Property, each
Bank may send representatives to accompany the Agent's personnel on such
inspections.
8.11 Agent's Reimbursement and Indemnification. The Banks
agree to reimburse and indemnify the Agent Pro Rata (i) for any amounts not
reimbursed by the Company for which the Agent (as Agent and not as a Bank under
this Agreement) is entitled to reimbursement by the Company under this Agreement
or the Related Documents, (ii) for any other expenses incurred by the Agent on
behalf of the Banks, in connection with the preparation, execution, delivery,
administration and enforcement (including collection or disposition of Property)
of this Agreement or the Related Documents 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 this Agreement or the Related
38
44
Documents or the transactions contemplated hereby or the enforcement (including
collection or disposition of Property) of any of the terms hereof or of any such
other documents, provided that no Bank shall be liable for any of the foregoing
to the extent they arise from the gross negligence or willful misconduct of the
Agent.
8.12 Rights as a Lender. Firstar shall have the same rights
and powers hereunder as any Bank the same as though it were not the Agent, and
the term "Bank" or "Banks" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. Firstar may accept deposits from,
lend money to, and generally engage in any kind of banking or trust business
with the Company or any Subsidiary as if it were not the Agent. Each Bank
acknowledges that the other Banks may continue to accept deposits from, lend
money to, and generally engage in any kind of banking or trust business with the
Company or any Subsidiary independent of the Obligations, this Agreement or the
Related Documents; provided, however, that the Company's or any Subsidiary's
obligations to a Bank from such independent banking activities shall not be
secured by the Property. Notwithstanding the foregoing or Section 8.5, any fees
or other income received by any Bank directly from such independent banking
activities are not to be shared with any other Bank or the Agent.
8.13 Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and based on
the financial statements prepared by the Company and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Related Documents. Each Bank
also acknowledges that it will, independently and without reliance upon the
Agent or any other Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the Related Documents.
8.14 Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Banks and the Company, and the Agent may be
removed at any time with or without cause by written notice received by the
Agent from the Required Banks. Upon any such resignation or removal, the
Required Banks shall have the right to appoint, on behalf of the Company and the
Banks, a successor Agent. If no successor Agent shall have been so appointed by
the Required Banks and shall have accepted such appointment within thirty days
after the retiring Agent's giving notice of resignation, then the retiring Agent
may appoint, on behalf of the Company and the Banks, a successor Agent. Such
successor Agent shall be a commercial bank having capital and retained earnings
of at least $25,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with
39
45
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder
arising after the date of retirement. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Section 8 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Agent hereunder and under the Related Documents.
8.15 Noteholders. The Agent may treat the payee of any
Revolving Credit Note as the holder thereof until written notice of transfer
shall have been filed with the Agent, signed by such payee and in form
satisfactory to the Agent.
SECTION 9 MISCELLANEOUS
9.1 Assignability; Successors. The provisions of this
Agreement shall inure to the benefit of and be binding upon the permitted
successors and assigns of the parties hereto. The Company's rights and
liabilities under this Agreement and the Related Documents are not assignable in
whole or in part without the prior written consent of all Banks.
9.2 Survival. All agreements, covenants, representations and
warranties made herein and in the Related Documents shall survive the execution
and delivery of this Agreement and the Related Documents, the making of the
Obligations and the termination of this Agreement.
9.3 Governing Law. This Agreement and the Related Documents
shall be governed by the internal laws of the State of Wisconsin.
9.4 Counterparts; Headings. This Agreement may be executed in
several counterparts, each of which shall be deemed an original, but such
counterparts shall together constitute but one and the same agreement. The
descriptive headings in this Agreement are inserted for convenience of reference
only and shall not affect the construction of this Agreement.
9.5 Entire Agreement; Amendments. This Agreement, the Exhibits
and Schedules attached hereto, and the Related Documents contain the entire
understanding of the parties with respect to the subject matter hereof, and
supersede all other understandings, oral or written, with respect to the subject
matter hereof. No amendment, modification, alteration, or waiver of the terms of
this Agreement or consent required under the terms of this Agreement shall be
effective unless made in a writing, which makes specific reference to this
Agreement and which has been signed by the party against which enforcement
thereof is sought. Any such amendment, modification, alteration, waiver or
consent shall be effective only
40
46
in the specific instance and for the specific purpose for which given.
9.6 Notices. All communications or notices required or
permitted by this Agreement shall be in writing and shall be deemed to have been
given or made when delivered in hand, deposited in the mail, or sent by
facsimile. Communications or notices shall be delivered personally or by
certified or registered mail, postage prepaid, or by facsimile and addressed as
follows, unless and until either of such parties notifies the other in
accordance with this section of a change of address:
if to the Company:
SpeedFam International, Inc.
000 X. 00xx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
ATTN: Xx. Xxxxx X. Xxxxxx,
Chief Financial Officer
FAX: 000-000-0000
Xxxxxxx and Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
ATTN: Xxxxx X. Xxxxxxxx, Esq.
FAX: 000-000-0000
if to the Agent: Firstar Bank Milwaukee, N.A.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
ATTN: Xx. Xxxxx X. Xxxxx,
Vice President
FAX: 000-000-0000
if to the Banks: The First National Bank of Chicago
One First National Plaza
00xx Xxxxx, Xxxx Xxxxx 0000
Xxxxxxx, XX 00000
ATTN: Xx. Xxxxxx X. Xxxxxx,
First Vice President
FAX: 000-000-0000
Firstar Bank Milwaukee, N.A.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
ATTN: Xx. Xxxxx X. Xxxxx,
Vice President
FAX: 000-000-0000
41
47
Bank of America National Trust
and Savings Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
ATTN: *Xx. Xxxxx X. Xxxx,
Assistant Vice President
FAX: 000-000-0000
Norwest Bank Arizona, N.A.
0000 X. Xxxxxxx Xxxxxx,
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
ATTN: Xx. Xxx X. XxxxXxxxx,
Assistant Vice President
FAX: 000-000-0000
with a copy to: Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx #0000
Xxxxxxxxx, Xxxxxxxxx 00000
ATTN: Xxxxxxxx X. Xxxx, Esq.
FAX: 000-000-0000
* All notices to BA related to Borrowing, Continuation or Conversion
should be sent to Bank of America NT & SA, Account Administration
#5693, 0000 Xxxxxxx Xxxxxxxxx - 0xx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000,
FAX: (000) 000-0000.
9.7 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
9.8 Further Assurances. The Company agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Agent may at any time request in
connection with the administration or enforcement of this Agreement or the
Related Documents or in order better to assure and confirm unto the Agent and
the Banks their respective rights, powers and remedies hereunder.
9.9 Conflicts and Ambiguities. In the event of any ambiguity
or conflict as between the terms of this Agreement, the Related Documents or any
other document executed and delivered pursuant to this Agreement, the terms of
this Agreement shall control.
9.10 Submission to Jurisdiction. The Agent and the Banks may
enforce any claim arising out of this Agreement or the Related
42
48
Documents in any state or federal court having subject matter jurisdiction and
located in Milwaukee, Wisconsin. For the purpose of any action or proceeding
instituted with respect to any such claim, the Company hereby irrevocably
submits to the jurisdiction of such courts. The Company irrevocably consents to
the service of process out of said courts by mailing a copy thereof, by
registered mail, postage prepaid, to the Company and agrees that such service,
to the fullest extent permitted by law (a) shall be deemed in every respect
effective service of process upon it in any such suit, action or proceeding, and
(b) shall be taken and held to be valid personal service upon personal delivery
to it. Nothing herein contained shall affect the right of the Agent or the Banks
to serve process in any other manner permitted by law or preclude the Agent
and/or the Banks from bringing an action or proceeding in respect hereof in any
other country, state or place having jurisdiction over such action. The Company
hereby irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding brought in any court located in Milwaukee, Wisconsin and
any claim that any such suit, action or proceeding brought in such a court has
been brought in an inconvenient forum.
9.11 Waiver of Jury Trial. Each party hereto knowingly,
voluntarily and without coercion, waives all rights to a trial by jury of all
disputes arising out of or in relation to this Agreement or any Related Document
to which it is a party, or under any amendment, instrument, document or
agreement delivered or which may in the future be delivered in connection
therewith or arising from any relationship existing in connection with this
Agreement or and any Related Document, and agrees that any such action or
proceeding shall be tried before a court and not before a jury.
43
49
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
SPEEDFAM INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx, Treasurer and CFO
FIRSTAR BANK MILWAUKEE, N.A.
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Xxxxx X. Xxxxx, Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx, First Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
Xxxxxxx Xxxxxx, Managing Director
NORWEST BANK ARIZONA, N.A.
By: /s/ Xxx X. XxxxXxxxx
------------------------------------------
Xxx X. XxxxXxxxx, Assistant Vice President
FIRSTAR BANK MILWAUKEE, N.A., AS AGENT
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Xxxxx X. Xxxxx, Vice President
44
50
CONSENT AND ACKNOWLEDGMENT
IN WITNESS WHEREOF, the Guarantor has executed this Agreement as of the
date first above written and hereby (i) agrees and consents to all of the terms
and conditions of the foregoing Agreement; and (ii) confirm its representations,
warranties, covenants and agreements contained in, and obligations and
liabilities under its Guaranty and each of the other Related Documents by which
it may be bound. The Guarantor hereby affirms and agrees that it has received
sufficient value (as described in Section 9-203(1)(b) of the Uniform Commercial
Code) and benefit (whether direct or indirect) in exchange for the Guarantor's
execution of its Guaranty and other Related Documents.
SPEEDFAM CORPORATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx, Treasurer and
Assistant Secretary
45
51
EXHIBIT A-1
AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$25,000,000 Milwaukee, Wisconsin
Revolving Loans August 29, 1997
FOR VALUE RECEIVED, SPEEDFAM INTERNATIONAL, INC., an Illinois corporation
(the "Borrower"), promises to pay to the order of FIRSTAR BANK MILWAUKEE, N.A.
(the "Bank") at its main office in Milwaukee, Wisconsin or at such other place
as the holder hereof may from time to time in writing designate, in lawful money
of the United States of America, the principal sum of Twenty-Five Million
Dollars ($25,000,000.00), or so much thereof as has been advanced and remains
outstanding pursuant to Section 2.1 of the Amended and Restated Revolving Credit
Agreement by and among the Borrower, the Bank, in its capacity as lender and
agent, Bank of America National Trust and Savings Association, Norwest Bank
Arizona, N.A. and The First National Bank of Chicago, dated as of the date
hereof (the "Loan Agreement"), together with accrued interest and all other
costs, charges and fees due thereunder.
The undersigned further promises to pay interest on the unpaid principal
amount of each Revolving Loan (as such term is defined in the Loan Agreement) as
is outstanding under the Loan Agreement, payable at such rates and at such
times, as provided in the Loan Agreement. Subject to the provisions of the Loan
Agreement with respect to acceleration, prepayment or loan limitations, all
unpaid principal with respect to each Revolving Loan, together with accrued
interest and all other costs, charges and fees, shall be due an payable in full
on the Termination Date for this Note.
This Note evidences indebtedness incurred under, and is entitled to the
benefits of, the Loan Agreement, together with all future amendments,
modifications, waivers, supplements and replacements thereof, to which Loan
Agreement reference is made for a statement of the terms and provisions under
which this Note may be paid prior to its due date or its due date accelerated.
This Note shall not constitute a novation of indebtedness but rather a
continuation of existing indebtedness.
The Borrower hereby agrees to pay all costs of collection, including
reasonable attorneys' fees and legal expenses in the event this Note is not paid
when due.
This Note is issued in and shall be governed by the laws of the State of
Wisconsin.
No delay or omission on the part of the holder in exercising any right
hereunder shall operate as a waiver of such right or of
52
any other remedy under this Note. A waiver on any one occasion shall not be
construed as a waiver of any such right or remedy on a future occasion.
All makers, endorsers, sureties, guarantors and other accommodation parties
hereby waive presentment for payment, protest and notice of nonpayment and
consent, without affecting their liability hereunder, to any and all extensions,
renewals, substitutions and alterations of any of the terms of this Note and to
the release of or failure by the Bank to exercise any rights against any party
liable for or any property securing payment thereof.
SPEEDFAM INTERNATIONAL, INC.
By:
-------------------------------
Xxxxx X. Xxxxxx, Treasurer and CFO
53
EXHIBIT A-2
AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$16,000,000 Milwaukee, Wisconsin
Revolving Loans August 29, 1997
FOR VALUE RECEIVED, SPEEDFAM INTERNATIONAL, INC., an Illinois corporation
(the "Borrower"), promises to pay to the order of THE FIRST NATIONAL BANK OF
CHICAGO (the "Bank") at the office of the Agent in Milwaukee, Wisconsin or at
such other place as the holder hereof may from time to time in writing
designate, in lawful money of the United States of America, the principal sum of
Sixteen Million Dollars ($16,000,000.00), or so much thereof as has been
advanced and remains outstanding pursuant to Section 2.1 of the Amended and
Restated Revolving Credit Agreement by and among the Borrower, the Bank, Firstar
Bank Milwaukee, N.A., in its capacity as lender and agent, Bank of America
National Trust and Savings Association and Norwest Bank Arizona, N.A., dated as
of the date hereof (the "Loan Agreement"), together with accrued interest and
all other costs, charges and fees due thereunder.
The undersigned further promises to pay interest on the unpaid principal
amount of each Revolving Loan (as such term is defined in the Loan Agreement) as
is outstanding under the Loan Agreement, payable at such rates and at such
times, as provided in the Loan Agreement. Subject to the provisions of the Loan
Agreement with respect to acceleration, prepayment or loan limitations, all
unpaid principal with respect to each Revolving Loan, together with accrued
interest and all other costs, charges and fees, shall be due and payable in full
on the Termination Date for this Note.
This Note evidences indebtedness incurred under, and is entitled to the
benefits of, the Loan Agreement, together with all future amendments,
modifications, waivers, supplements and replacements thereof, to which Loan
Agreement reference is made for a statement of the terms and provisions under
which this Note may be paid prior to its due date or its due date accelerated.
This Note shall not constitute a novation of indebtedness but rather a
continuation of existing indebtedness.
The Borrower hereby agrees to pay all costs of collection, including
reasonable attorneys' fees and legal expenses in the event this Note is not paid
when due.
This Note is issued in and shall be governed by the laws of the State of
Wisconsin.
No delay or omission on the part of the holder in exercising any right
hereunder shall operate as a waiver of such right or of
54
any other remedy under this Note. A waiver on any one occasion shall not be
construed as a waiver of any such right or remedy on a future occasion.
All makers, endorsers, sureties, guarantors and other accommodation
parties hereby waive presentment for payment, protest and notice of nonpayment
and consent, without affecting their liability hereunder, to any and all
extensions, renewals, substitutions and alterations of any of the terms of this
Note and to the release of or failure by the Bank to exercise any rights
against any party liable for or any property securing payment thereof.
SPEEDFAM INTERNATIONAL, INC.
By: ______________________________
Xxxxx X. Xxxxxx, Treasurer and CFO
55
EXHIBIT A-3
REVOLVING CREDIT NOTE
$10,000,000 Milwaukee, Wisconsin
Revolving Loans August 29, 1997
FOR VALUE RECEIVED, SPEEDFAM INTERNATIONAL, INC, an Illinois
corporation (the "Borrower"), promises to pay to the order of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION (the "Bank") at the office of Agent in
Milwaukee, Wisconsin or at such other place as the holder hereof may from time
to time in writing designate, in lawful money of the United States of America,
the principal sum of Ten Million Dollars ($10,000,000.00), or so much thereof
as has been advanced and remains outstanding pursuant to Section 2.1 of the
Amended and Restated Revolving Credit Agreement by and among the Borrower, the
Bank, Firstar Bank Milwaukee, N.A., in its capacity as lender and as agent,
Norwest Bank Arizona, N.A., and The First National Bank of Chicago, dated as of
the date hereof (the "Loan Agreement"), together with accrued interest and all
other costs, charges and fees due thereunder.
The undersigned further promises to pay interest on the unpaid
principal amount of each Revolving Loan (as such term is defined in the Loan
Agreement) as is outstanding under the Loan Agreement, payable at such rates
and at such times, as provided in the Loan Agreement. Subject to the provisions
of the Loan Agreement with respect to acceleration, prepayment or loan
limitations, all unpaid principal with respect to each Revolving Loan, together
with accrued interest and all other costs, charges and fees, shall be due and
payable in full on the Termination Date for this Note.
This Note evidences indebtedness incurred under, and is entitled to the
benefits of, the Loan Agreement, together with all future amendments,
modifications, waivers, supplements and replacements thereof, to which Loan
Agreement reference is made for a statement of the terms and provisions under
which this Note may be paid prior to its due date or its due date accelerated.
The Borrower hereby agrees to pay all costs of collection, including
reasonable attorneys' fees and legal expenses in the event this Note is not
paid when due.
This Note is issued in and shall be governed by the laws of the State
of Wisconsin.
56
No delay or omission on the part of the holder in exercising any right
hereunder shall operate as a waiver of such right or of any other remedy under
this Note. A waiver on any one occasion shall not be construed as a waiver of
any such right or remedy on a future occasion.
All makers, endorsers, sureties,guarantors and other accommodation
parties hereby waive presentment for payment, protest and notice of nonpayment
and consent, without affecting their liability hereunder, to any and all
extensions, renewals, substitutions and alterations of any of the terms of this
Note and to the release of or failure by the Bank to exercise any rights against
any party liable for or any property securing payment thereof.
SPEEDFAM INTERNATIONAL, INC.
By:
---------------------------------
Xxxxx X. Xxxxxx, Treasurer and CFO
57
EXHIBIT A-4
REVOLVING CREDIT NOTE
$9,000,000 MILWAUKEE, WISCONSIN
REVOLVING LOANS AUGUST 29, 1997
FOR VALUE RECEIVED, SPEEDFAM INTERNATIONAL, INC, an Illinois
corporation (the "Borrower"), promises to pay to the order of NORWEST BANK
ARIZONA, N.A. (the "Bank") at the office of Agent in Milwaukee, Wisconsin or at
such other place as the holder hereof may from time to time in writing
designate, in lawful money of the United States of America, the principal sum
of Nine Million Dollars ($9,000,000.00), or so much thereof as has been advanced
and remains outstanding pursuant to Section 2.1 of the Amended and Restated
Revolving Credit Agreement by and among the Borrower, the Bank, Firstar Bank
Milwaukee, N.A., in its capacity as lender and as agent, Bank of America
National Trust and Savings Association and The First National Bank of Chicago,
dated as of the date hereof (the "Loan Agreement"), together with accrued
interest and all other costs, charges and fees due thereunder.
The undersigned further promises to pay interest on the unpaid
principal amount of each Revolving Loan (as such term is defined in the Loan
Agreement) as is outstanding under the Loan Agreement, payable at such rates
and at such times, as provided in the Loan Agreement. Subject to the provisions
of the Loan Agreement with respect to acceleration, prepayment or loan
limitations, all unpaid principal with respect to each Revolving Loan, together
with accrued interest and all other costs, charges and fees, shall be due and
payable in full on the Termination Date for this Note.
This Note evidences indebtedness incurred under, and is entitled to the
benefits of, the Loan Agreement, together with all future amendments,
modifications, waivers, supplements and replacements thereof, to which Loan
Agreement reference is made for a statement of the terms and provisions under
which this Note may be paid prior to its due date or its due date accelerated.
The Borrower hereby agrees to pay all costs of collection, including
reasonable attorneys' fees and legal expenses in the event this Note is not
paid when due.
This Note is issued in and shall be governed by the laws of the State
of Wisconsin.
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No delay or omission on the part of the holder in exercising any right
hereunder shall operate as a waiver of such right or of any other remedy under
this Note. A waiver on any one occasion shall not be construed as a waiver of
any such right or remedy on a future occasion.
All makers, endorsers, sureties, guarantors and other accommodation
parties hereby waive presentment for payment, protest and notice of nonpayment
and consent, without affecting their liability hereunder, to any and all
extensions, renewals, substitutions and alterations of any of the terms of this
Note and to the release of or failure by the Bank to exercise any rights
against any party liable for or any property securing payment thereof.
SPEEDFAM INTERNATIONAL, INC.
By:
----------------------------------
Xxxxx X. Xxxxxx, Treasurer and CFO
59
SCHEDULE 1
SPEEDFAM INTERNATIONAL, INC.
CORPORATE CASH INVESTMENT POLICY
I. POLICY
Invest SpeedFam International, Inc. ("SFI") cash at the highest possible rate
of return while maintaining safety of principal and adequate liquidity to meet
SFI's ongoing capital needs.
II. PURPOSE
Institute proper guidelines for the ongoing management of SFI's corporate cash.
III. RESPONSIBILITY
The Treasurer and Chief Financial Officer of the Company is authorized to
invest or direct members in the SFI Treasury Department to invest surplus funds
of the Company. The Treasurer may also engage external cash managers to perform
this function.
The Chief Financial Officer will have the authority to; 1) open accounts with
banks, brokerage or similar financial institutions; 2) establish safekeeping
accounts or other arrangements for the custody of the securities; 3) execute
documents as necessary; 4) select or change external cash managers with
concurrence of the Audit Committee of the Board of Directors; 5) monitor
investment results of all cash managers engaged, as well as results of
investment activities done by SFI's Treasury Department personnel; and 6)
execute the investment policy as well as designate those who can execute it.
Any exceptions to this policy must be approved, in writing, by the Chief
Executive Officer and the Chief Financial Officer.
IV. INVESTMENT OBJECTIVES
A. To assure safety and preservation of principal;
B. To structure portfolio maturities to conform with capital needs as
indicated in SFI's current cash forecast;
C. To maximize rate of return within constraints of risk parameters and
liquidity requirements.
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V. APPROVED INVESTMENTS, MATURITIES & ALLOCATIONS
A. United States Government Securities:
-Maximum maturity: 14 months
-Maximum Percentage of Portfolio: 100%
-Maximum Percentage Per Issuer: 100%
B. U.S. Government Agency Securities:
-Maximum maturity: 14 months
-Maximum Percentage of Portfolio: 100%
-Maximum Percentage Per Issuer: 100%
C. Obligations issued or guaranteed by member countries of the
European Community or Japan, or any agency thereof:
-Maximum maturity: 14 months
-Maximum Percentage of Portfolio: 100%
-Maximum Percentage Per Issuer: 100%
D. Commercial Paper limited to:
Maximum Maximum
S&P Xxxxx Ratings Percentage Per Issuer Percentage of Portfolio
----------------- --------------------- -----------------------
A1/P1 10% 50%
A1 or P1 only 10% 25%
A2/P2 5% 10%
-Maximum maturity: 9 months for A1 &/or P1;
3 months for A2/P2;
E. Municipal Securities, with a minimum rating of SP-1 (S&P) or MIG-1 (Xxxxx'x)
for short-term securities and/or AA (S&P) or Aa2 (Xxxxx'x) for medium and
longer term securities (or equivalent ratings).
Non-rated issues may be purchased if they are of equivalent investment
quality and meet one or more of the following criteria: 1) Collateralized by
U.S. Treasuries or agencies to cover principal and interest payments.
61
2) Backed by an irrevocable bank letter of credit which meets
the requisite quality standards
3) Guaranteed by an investment contract from a bank corporation
or insurance company which meets the requisite quality standards
Pre-refunded municipal securities which are collateralized by U.S. Treasuries or
agencies to cover principal and interest payments are eligible investments.
- Maximum maturity: 14 months for XX-0, XXX-0 or AAA
9 months for AA or Aa2
- Maximum Percentage of Portfolio: 100%
- Maximum Percentage Per Issuer: 10%
F. Eurodollar Time Deposits, with a minimum A-1 S&P or P-1 Xxxxx'x or
equivalent rating
- Maximum maturity: 6 months
- Maximum Percentage of Portfolio: 30%
- Maximum Percentage Per Issuer: 10%
G. Auction rate securities, must be rated at least AA by S&P or Aa2 by Xxxxx'x
or equivalent.
- Maximum maturity: 6 months
- Maximum Percentage of Portfolio: 30%
- Maximum Percentage Per Issuer: 10%
H. Money Market Funds, rated AA or greater, with an average weighted maturity
that does not exceed 90 days.
- Maximum maturity: 6 months
- Maximum Percentage of Portfolio: 30%
- Maximum Percentage Per Issuer: 10%
I. Floating Rate Notes and Floating Rate Demand Notes, rated AA or greater:
- Maximum maturity: 6 months
- Maximum Percentage of Portfolio: 25%
- Maximum Percentage Per Issuer: 10%
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VI. CURRENCIES
All eligible investments will be U.S. dollar-denominated or in the functional
currency of the subsidiary making the investment.
VII. QUALIFICATIONS OF COMMERCIAL AND INVESTMENT BANKS
A. Commercial banks - Commercial banks authorized to conduct investment
transactions with the Company will meet all of these qualifications:
- have a long-term rating of at least "A-" by Moody's or 3A by S&P or a
comparable rating agency;
- be a member of the Federal Deposit Insurance Corporation ("FDIC"), if
U.S. Based;
B. Investment banks - Investment banks authorized to conduct investment
transactions with the Company will meet all of these qualifications:
- have total capital in excess of $350 million;
- be a member of the Securities Investor Protection Corporation
("SIPC").
VIII. INVESTMENT SAFEKEEPING
All of the commercial and investment banks that are qualified to perform
investment services for SFI are authorized to hold investments in safekeeping
on behalf of SFI. SFI will not take physical possession of investment
securities.
IX. INVESTMENT POLICY REVIEW
This Investment Policy will be reviewed by the Treasurer and Chief Financial
Officer, and the Audit Committee of the Board of Directors on an annual basis
to ensure that it remains consistent with the overall objectives of SFI and
with current financial trends.
63
SCHEDULE 2
SUBSIDIARIES, SECURITIES DISCLOSURES
Subsidiaries of SpeedFam International, Inc.:
SpeedFam Corporation (USA)
SpeedFam Limited (UK)
SpeedFam GmbH (Germany)
SpeedFam Sales, Inc. (Virgin Islands)
Companies in which SpeedFam International, Inc. owns directly or
indirectly more than 1% of total outstanding shares of any class of capital
stock:
SpeedFam Co Ltd. (Japan)
Met-Coil Ltd. (Japan)
SpeedFam Clean System (Japan)
SpeedFam Inc. (Taiwan)
Xxxx Xxxx (Japan)
SpeedFam India Pvt Ltd. (India)
SpeedFam Korea Limited
SpeedFam Singapore
SpeedFam Thailand Co. Ltd. (Thailand)
Fujimi Corporation (USA)
Outstanding options or other rights to subscribe for the purchase from
SpeedFam International, Inc. of capital stock therein:
SpeedFam International, Inc. has granted options to purchase its stock
under the SpeedFam International, Inc. 1991 Employee Incentive Stock
Option Plan and the SpeedFam International, Inc. 1995 Stock Plan for
Employees and Directors.
SpeedFam International, Inc. offers its stock for purchase to its
employees under the SpeedFam International Inc. Employee Stock Purchase
Plan.
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SCHEDULE 3
REAL ESTATE
SpeedFam International, Inc. owns the following real estate:
Lots 12, 13, 14, 15 and 22 in the Xxxxxxxx Technology Center,
Chandler, Arizona
SpeedFam Corporation owns the following real estate:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx
65
SCHEDULE 4
LIENS AND CAPITAL LEASES
1. UCC Liens
A. Illinois Secretary of State
Secured Party Financing Statement No.
------------- -----------------------
Bank One LaGrange 3016811,3721982
Vanguard Financial Service Corp. 3181543, 3597124, 3672628
Vanguard Financial Service Corp. 2882519, 3672629
The CIT Group* 3242648, 3258964
AT&T Capital Corp. 0000000
NBD Bank, N.A. 3280646
Vanguard Financial Leasing Corp. 3304736
Copelco Capital 3450194
The CIT Group/Equipment Financing, Inc. 0000000
Inter-Tel Leasing, Inc. 3672628, 3672629
LaSalle Equipment Limited Partnership 3505401, 3516526
*-Capital Lease
B. Arizona Secretary of State
Secured Party Financing Statement No.
------------- -----------------------
The CIT Group* 781807
NBD Equipment Finance 708583
Advanced Copy Systems, Inc. 853589
The CIT Group 816702
TIE National Leasing Corporation 831214
Yale Financial Services, Inc. 890429, 976711
Computer Sales International, Inc. 959485, 959486,964894
970516, 980359
Inter-Tel Leasing, Inc. 965245
American Business Credit Corp. 971274
LaSalle Systems Leasing 866502
Clean Rooms West, Inc. 934999
