CREDIT AGREEMENT
Dated as of September 5, 2003
among
THE JOURNAL COMPANY (to be renamed
JOURNAL COMMUNICATIONS, INC.)
as Borrower,
CERTAIN SUBSIDIARIES FROM TIME TO TIME
PARTIES HERETO,
as Guarantors,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
U.S. BANK NATIONAL ASSOCIATION,
as Sole Lead Arranger and Administrative Agent,
KEYBANK NATIONAL ASSOCIATION,
as Co-Syndication Agent,
LASALLE BANK NATIONAL ASSOCIATION,
as Co-Syndication Agent,
BANK ONE, NA,
as Co-Documentation Agent,
M&I XXXXXXXX & XXXXXX BANK,
as Co-Documentation Agent,
SUN TRUST BANK,
as Senior Managing Agent,
ASSOCIATED BANK, N.A.
as Managing Agent,
BANK OF AMERICA, N.A.,
as Managing Agent,
THE NORTHERN TRUST COMPANY,
as Managing Agent
and
WACHOVIA BANK NATIONAL ASSOCIATION,
as Managing Agent
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS.......................................................1
1.1 Definitions.......................................................1
1.2 Other Definitional Provisions....................................20
1.3 Accounting Terms and Determinations..............................20
ARTICLE 2 CREDIT FACILITIES................................................20
2.1 Revolving Loans..................................................20
2.2 Swing Line Loans.................................................22
2.3 [Reserved].......................................................23
ARTICLE 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES...................24
3.1 Default Rate.....................................................24
3.2 Extension and Conversion.........................................24
3.3 Reductions in Commitments and Prepayments........................24
3.4 Fees.............................................................25
3.5 Capital Adequacy.................................................26
3.6 Inability To Determine Interest Rate.............................26
3.7 Illegality.......................................................26
3.8 Requirements of Law..............................................27
3.9 Taxes............................................................28
3.10 Indemnity........................................................29
3.11 Pro Rata Treatment...............................................29
3.12 Sharing of Payments..............................................30
3.13 Place and Manner of Payments.....................................31
3.14 [Reserved].......................................................31
3.15 Transfers at Borrower's Request..................................32
ARTICLE 4 GUARANTY.........................................................32
4.1 The Guaranty.....................................................32
4.2 Obligations Unconditional........................................32
4.3 Reinstatement....................................................33
4.4 Certain Additional Waivers.......................................34
4.5 Remedies.........................................................34
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4.6 Continuing Guarantee.............................................34
ARTICLE 5 CONDITIONS.......................................................34
5.1 Conditions to Closing Date.......................................34
5.2 Conditions to All Loans..........................................36
ARTICLE 6 REPRESENTATIONS AND WARRANTIES...................................37
6.1 Financial Statements.............................................37
6.2 Ownership of Properties; Liens and Encumbrances..................37
6.3 Corporate Existence; Compliance with Law.........................38
6.4 Corporate Power; Authorization; Enforceable Obligations..........38
6.5 No Legal Bar; No Default.........................................38
6.6 No Material Litigation...........................................38
6.7 Investment Company Act...........................................39
6.8 Federal Regulations..............................................39
6.9 ERISA............................................................39
6.10 Environmental Matters............................................39
6.11 Use of Proceeds..................................................40
6.12 Subsidiaries.....................................................40
6.13 Taxes............................................................40
6.14 Solvency.........................................................41
6.15 Accuracy of Information..........................................41
6.16 Amendments to Schedule 6.12......................................41
6.17 Recapitalization.................................................41
ARTICLE 7 AFFIRMATIVE COVENANTS............................................42
7.1 Annual Financial Statement.......................................42
7.2 Interim Financial Statements.....................................42
7.3 Payment of Obligations...........................................43
7.4 Conduct of Business and Maintenance of Existence.................43
7.5 Maintenance of Property; Insurance...............................43
7.6 Inspection of Property; Books and Records; Discussions...........43
7.7 Notices..........................................................44
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(continued)
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7.8 Environmental Laws...............................................44
7.9 Financial Covenants..............................................45
7.10 Additional Subsidiary Guarantors.................................45
7.11 Recapitalization.................................................46
ARTICLE 8 NEGATIVE COVENANTS...............................................46
8.1 Indebtedness.....................................................46
8.2 Liens............................................................46
8.3 Nature of Business...............................................46
8.4 Consolidation, Merger, Sale or Purchase of Assets, etc...........47
8.5 Advances, Investments and Loans..................................48
8.6 Guarantee Obligations............................................48
8.7 Transactions with Affiliates.....................................48
8.8 Ownership of Subsidiaries........................................48
8.9 Fiscal Year......................................................48
8.10 Dividends........................................................48
ARTICLE 9 EVENTS OF DEFAULT................................................48
ARTICLE 10 AGENCY PROVISIONS................................................51
10.1 Appointment......................................................51
10.2 Delegation of Duties.............................................52
10.3 Exculpatory Provisions...........................................52
10.4 Reliance on Communications.......................................52
10.5 Notice of Default................................................53
10.6 Non-Reliance on Agent and Other Lenders..........................53
10.7 Indemnification..................................................53
10.8 Agent in its Individual Capacity.................................54
10.9 Successor Agent..................................................54
10.10 Lead Arranger, Co-Syndication Agents, Co-Documentation
Agents, Senior Managing Agent and Managing Agents................54
ARTICLE 11 MISCELLANEOUS....................................................54
11.1 Amendments, Waivers..............................................54
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(continued)
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11.2 Notices..........................................................55
11.3 No Waiver; Cumulative Remedies...................................56
11.4 Survival of Representations and Warranties.......................57
11.5 Payment of Expenses and Taxes....................................57
11.6 Successors and Assigns; Participations; Purchasing Lenders.......57
11.7 Set-off..........................................................60
11.8 Confidentiality..................................................61
11.9 Table of Contents and Section Headings...........................61
11.10 Counterparts.....................................................61
11.11 Severability.....................................................61
11.12 Integration......................................................62
11.13 Governing Law....................................................62
11.14 Consent to Jurisdiction and Venue................................62
11.15 Acknowledgements.................................................62
11.16 Waivers of Jury Trial............................................62
11.17 Limitation of Liability..........................................63
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Schedules
Schedule 1.1 (a) Recapitalization
Schedule 2.1(a) Commitments
Schedule 6.1 Fiscal Quarters
Schedule 6.10 Environmental Matters
Schedule 6.12 Subsidiaries
Schedule 8.2 Permitted Liens
Schedule 11.2 Schedule of Lenders
Exhibits
Exhibit 2.1(b)(i) Form of Borrowing Notice for Revolving Loans
Exhibit 2.1(e) Form of Revolving Note
Exhibit 3.2 Form of Notice for Conversion/Extension of Revolving Loans
Exhibit 5.1(c) Certificate of Financial Condition
Exhibit 5.1(f) Form of Certificate of Secretary of the Borrower
Exhibit 5.1(l) Form of Authorization Letter
Exhibit 7.10 Form of Joinder Agreement
Exhibit 11.6(c) Form of Commitment Transfer Supplement
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of September 5, 2003 (the "Credit
Agreement"), is by and among THE JOURNAL COMPANY (to be renamed JOURNAL
COMMUNICATIONS, INC.) ("Borrower"), those Subsidiaries identified as a
"Guarantor" on the signature pages hereto and such other Subsidiaries as may
from time to time become a party hereto (each a "Guarantor" and collectively,
the "Guarantors"), the several lenders identified as "Lenders" on the signature
pages hereto and such other lenders as may from time to time become party hereto
as a "Lender" (each a "Lender" and collectively, the "Lenders"), U.S. BANK
NATIONAL ASSOCIATION as the sole lead arranger (in such capacity, the "Lead
Arranger") and as the administrative agent for the Lenders (in such capacity,
the "Agent"), KEYBANK NATIONAL ASSOCIATION, as co-syndication agent (in such
capacity, "Co-Syndication Agent"), LASALLE BANK NATIONAL ASSOCIATION, as
Co-Syndication Agent, BANK ONE, NA, as co-documentation agent (in such capacity,
a "Co-Documentation Agent"), M&I XXXXXXXX & ILSLEY BANK, as Co-Documentation
Agent, SUN TRUST BANK, as senior managing agent (in such capacity, a "Senior
Managing Agent"), ASSOCIATED BANK, N.A., as managing agent (in such capacity, a
"Managing Agent"), BANK OF AMERICA, N.A., as Managing Agent, THE NORTHERN TRUST
COMPANY, as Managing Agent, and WACHOVIA BANK NATIONAL ASSOCIATION, as Managing
Agent.
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a $350,000,000
revolving credit facility for the purposes hereinafter set forth; and
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Credit Agreement, the following terms
shall have the meanings specified below unless the context otherwise requires:
"Additional Credit Party" means each Guarantor as of the Closing Date
and each Person that becomes a Guarantor after the Closing Date by
execution of a Joinder Agreement in accordance with Section 7.10.
"Affiliate" means, with respect to any Person, any other Person (i)
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person or (ii) directly or indirectly
owning or holding ten percent (10%) or more of
1
the equity interest in such Person. For purposes of this definition,
"control" when used with respect to any Person means the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing; provided, however, JESTA will not be deemed an Affiliate of the
Borrower or any of its Subsidiaries.
"Agent" means U.S. Bank National Association as administrative agent
in such capacity hereunder, and any successors and assigns in such
capacity.
"Aggregate Revolving Committed Amount" means the aggregate amount of
all of the Revolving Commitments in effect from time to time.
"Applicable Percentage" means, for any day, the rate per annum set
forth opposite the applicable pricing level then in effect as shown on
Schedule 2.1(d), it being understood that the Applicable Percentage for (i)
Eurodollar Loans shall be the percentage set forth under the columns
"Applicable Percentage for Eurodollar Loans," and (ii) the Unused Facility
Fee shall be the percentage set forth under the column "Applicable
Percentage for Unused Facility Fee." The applicable pricing level and
Applicable Percentage shall, in each case, be determined and adjusted
quarterly by the Agent on the fifth Business Day after delivery of the
annual or quarterly financial information required by Section 7.1 or 7.2,
as applicable (each an "Interest Determination Date"), based on the
information contained in such financial information, with the first such
determination and adjustment hereunder to be made upon the Agent's receipt
of financial information for the quarter ended June 15, 2003. Such
Applicable Percentage shall be effective from an Interest Determination
Date until the next such Interest Determination Date. The Agent shall
promptly notify the Borrower and the Lenders of any change in the
applicable pricing level (but in any event within two Business Days after
the relevant Interest Determination Date). Such determinations by the Agent
shall be conclusive absent manifest error, and any change in the Applicable
Percentage shall become effective five Business Days after the Agent's
receipt of such financial information. The initial Applicable Percentages
shall be based on pricing level 2. If the Borrower fails to deliver timely
the financial information required by Section 7.1 or 7.2, as applicable,
then for the period commencing on the date such information was due through
the date that is five days after the date on which such information is
delivered, the Applicable Percentages shall be based on the next higher
pricing level. The term "pricing level" shall be as referenced in Schedule
2.1(d).
"Audited Financial Statements" means the audited consolidated
financial statements of the Borrower referred to in Section 6.1(a).
"Borrower" means The Journal Company (to be renamed Journal
Communications, Inc.), a Wisconsin corporation.
"Borrowing Date" means in respect of any Loan, the date such Loan is
made.
"Business" is defined in Section 6.10(b).
2
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in Wisconsin or Illinois are closed, except that,
when used in connection with a rate determination, borrowing or payment in
respect of a Eurodollar Loan, such day shall also be a day on which
dealings between banks are carried on in U.S. dollar deposits in London,
England and Nassau, Bahamas.
"Calculation Date" is defined in the definition of Interbank Offered
Rate.
"Capital Expenditures" means, for any period, the sum of (a) the
aggregate amount of all expenditures of the Borrower and its Subsidiaries
for fixed or capital assets made during such period which, in accordance
with GAAP, would be classified as capital expenditures, and (b) the
aggregate amount of all Capital Lease Obligations incurred during such
period; provided that expenditures made for acquisitions permitted under
Section 8.4(b)(i), (ii), (iii), (iv) or (v) shall not be Capital
Expenditures for purposes of Section 7.9(e).
"Capital Lease" means any lease of property, real or personal, the
obligations with respect to which are required to be capitalized on a
balance sheet of the lessee in accordance with GAAP.
"Capital Lease Obligations" means the capital lease obligations
relating to a Capital Lease determined in accordance with GAAP.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having maturities
of not more than twelve months from the date of acquisition, (b) U.S.
dollar denominated time deposits and certificates of deposit of (i) any
Lender, (ii) any domestic commercial bank of recognized standing having
capital and surplus in excess of $500,000,000 or (iii) any bank whose
short-term commercial paper rating from S&P is at least A-1 (or the
equivalent thereof) or from Xxxxx'x is at least P-1 (or the equivalent
thereof) (any such bank being an "Approved Lender"), in each case with
maturities of not more than 364 days from the date of acquisition, (c)
commercial paper and variable or fixed rate notes issued by any Approved
Lender (or by the parent company thereof) or any variable or fixed rate
notes issued by, or guaranteed by, any domestic corporation rated A-1 (or
the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof)
or better by Moody's and maturing within six months of the date of
acquisition, (d) repurchase agreements with a bank or trust company
(including any of the Lenders) or recognized securities dealer having
capital and surplus in excess of $500,000,000 for direct obligations issued
by or fully guaranteed by the United States of America in which the
Borrower shall have a perfected first priority security interest (subject
to no other Liens) and having, on the date of purchase thereof, a fair
market value of at least 100% of the amount of the repurchase obligations,
(e) obligations of any State of the United States or any political
subdivision thereof, the interest with respect to which is exempt from
federal income taxation under Section 103 of the Code, having a long term
rating of at least Aa-3 by Moody's (or the equivalent thereof) or AA by S&P
3
(or the equivalent thereof), (f) investments in municipal auction preferred
stock (i) rated AAA (or the equivalent thereof) or better by S&P or AAA (or
the equivalent thereof) or better by Moody's and (ii) with dividends that
reset at least once every 365 days, (g) investments, classified in
accordance with GAAP as current assets, in money market investment programs
registered under the Investment Company Act of 1940, as amended, which are
administered by reputable financial institutions having capital of at least
$100,000,000 and the portfolios of which are limited to investments of the
character described in the foregoing subdivisions (a) through (f), (h)
repurchase agreements collateralized with Government or Federal Agency
Securities, (i) U.S. Government or U.S. Government Agency obligations, (j)
obligations issued or guaranteed by any Lender, including, bankers'
acceptances, certificates of deposit, eurodollar time deposits, and
eurodollar certificates of deposit, (k) commercial paper rated at least A-1
(or the equivalent thereof) by S&P or P-1 (or the equivalent thereof) by
Moody's with a maturity not to exceed 93 days, (l) non-rated commercial
paper offered through any Lender and any other bank, investment bank,
insurance company or other financial institution approved in writing by
both the Chief Executive Officer and Chief Financial Officer of the
Borrower (the "Approved Investment Institutions") provided that: (i) the
issuer maintains a committed back up line of credit in an amount sufficient
to ensure repayment of obligations at maturity, and (ii) investments for
any individual issuer shall not exceed the greater of $5,000,000 or 10% of
the total value of the portfolio, and (iii) the maturity of the obligations
shall not exceed 33 days, (m) master notes issued by obligors with a
minimum rating of A-1 (or the equivalent thereof) by S&P or P-1 (or the
equivalent thereof) by Moody's respectively, provided, the master note
agreement must provide for instant cancellation of the borrowing
relationship should the issuer's credit quality slip below these standards,
(n) municipal auction rate preferred securities rated AAA by Moody's and/or
S&P (or the equivalent thereof), provided, the maximum amount per issue
shall not exceed $5,000,000, (o) tax-exempt municipal issues rated A or
better by S&P or Moody's and issues which are no longer rated by Moody's
and/or S&P because they have been escrowed, 100% in U.S. Government
securities, provided, the maximum amount, per issue shall not exceed
$1,000,000, (p) money market funds offered by the approved investment
institutions that invest in prime rated commercial paper, obligations
issued by or guaranteed by the United States Government or its Agencies, or
prime rated tax-exempt municipal issues and (q) other investment
instruments offered by the Approved Investment Institutions provided the
investment does not violate any specific constraint in this Section, and
provided further, these investments have been approved in writing by both
the Chief Executive Officer and Chief Financial Officer of the Borrower and
the maximum amount per issue does not exceed $1,000,000.
"Class A Shares" means shares of the Borrower's class A common stock.
"Class B Shares" means shares of the Borrower's class B-1 and class
B-2 common stock.
"Class C Shares" means shares of the Borrower's class C common stock.
4
"Closing Date" means the date on which all of the conditions set forth
in Section 5.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means the Revolving Commitment.
"Commitment Percentage" means, for each Lender, the percentage
identified as its Revolving Commitment Percentage, on Schedule 2.1(a), as
such percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 11.6(c).
"Commitment Transfer Supplement" means a Commitment Transfer
Supplement, substantially in the form of Exhibit 11.6(c).
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of the
Code.
"Consolidated Amortization" means for any period, amortization expense
determined for the Borrower and its Subsidiaries on a consolidated basis
and in accordance with GAAP applied on a consistent basis.
"Consolidated Depreciation" means for any period, depreciation expense
determined for the Borrower and its Subsidiaries on a consolidated basis
and in accordance with GAAP applied on a consistent basis.
"Consolidated EBITDA" means for any period, the aggregate of the sum
of Consolidated EBIT plus Consolidated Depreciation plus Consolidated
Amortization plus the Cumulative Effect of an Accounting Change, determined
in each case in accordance with GAAP applied on a consistent basis. Except
as expressly provided otherwise, the applicable period shall be for the
four consecutive quarters ending as of the date of determination.
"Consolidated EBIT" means for any period, the aggregate of the sum of
Consolidated Net Earnings (determined without including in Consolidated Net
Earnings any extraordinary gains or losses (including, without limitation,
gains or losses on disposal of property, plant and equipment relating to
discontinued operations), and any taxes on such excluded gains and any tax
deductions or credits on account of any such excluded losses) plus
Consolidated Interest Expense plus Provision for Income Taxes minus
Consolidated Interest Income and Dividends, determined in each case in
accordance with GAAP applied on a consistent basis. Except as expressly
provided otherwise, the applicable period shall be for the four consecutive
quarters ending as of the date of determination.
5
"Consolidated Funded Debt" means Funded Debt of the Borrower and its
Subsidiaries on a consolidated basis determined in accordance with GAAP
applied on a consistent basis.
"Consolidated Funded Debt Ratio" means, as of the last day of any
fiscal quarter, the ratio of Consolidated Funded Debt on such day to
Consolidated EBITDA for the period of four consecutive fiscal quarters
ending as of such day.
"Consolidated Interest Expense" means for any period, all interest
expense, including the interest component under Capital Leases and interest
paid on federal, state, city and foreign income tax audits for the Borrower
and its Subsidiaries on a consolidated basis determined in accordance with
GAAP applied on a consistent basis.
"Consolidated Interest Income and Dividends" means for any period, all
interest income earned on cash and Cash Equivalents, interest income earned
on federal, state, city and foreign income tax refunds, and dividends
earned on stock for the Borrower and its Subsidiaries on a consolidated
basis determined in accordance with GAAP applied on a consistent basis (but
excluding in any event dividends earned by the Borrower's Subsidiaries on
shares of stock of the Borrower).
"Consolidated Net Earnings" means for any period, the net income of
the Borrower and its Subsidiaries on a consolidated basis determined in
accordance with GAAP applied on a consistent basis. The applicable period
shall be for the four consecutive quarters ending as of the date of
computation.
"Consolidated Net Worth" means total stockholders' equity of the
Borrower and its Subsidiaries on a consolidated basis as determined in
accordance with GAAP applied on a consistent basis.
"Consolidated Rent Expense" means for any period, the gross rent
expense for real and personal property operating leases (and excluding
Capital Leases) of the Borrower and its Subsidiaries on a consolidated
basis determined in accordance with GAAP applied on a consistent basis.
"Consolidated Subsidiaries" means Subsidiaries whose financial
statements are consolidated with those of the Borrower in accordance with
GAAP.
"Consolidated Tangible Net Worth" means the Total Stockholder's Equity
appearing on the consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with GAAP minus the sum of the
following; (i) the book amount of goodwill and (ii) other intangibles
determined in accordance with GAAP, including without limitation, all such
items as customer lists, non-compete agreements, network affiliation
agreements but excluding the book value of broadcast licenses.
"Consolidated Total Assets" means total assets of the Borrower and its
Subsidiaries on a consolidated basis as determined in accordance with GAAP
applied on a consistent basis.
6
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Documents" means this Credit Agreement, the Notes, any Joinder
Agreement, and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto.
"Credit Party" means, individually, the Borrower and any Additional
Credit Party.
"Credit Party Obligations" means, without duplication, all of the
obligations of the Borrower and the other Credit Parties to the Lenders and
the Agent (including the obligations to pay principal of and interest on
the Loans, to pay all Fees, to pay certain expenses and the obligations
arising in connection with various indemnities) whenever arising, under
this Credit Agreement, the Notes or any other of the Credit Documents to
which the Borrower or any other Credit Party is a party.
"Cumulative Effect of an Accounting Change" means the non-operational
impairment charge recorded as a result of the Borrower adopting the
Financial Accounting Standards Board SFAS# 142, "Goodwill and Other
Intangible Assets."
"Default" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulting Lender" means at any time, any Lender that, at such time
(a) has failed to make a Loan or advance required pursuant to the terms of
this Credit Agreement, (b) has failed to pay to the Agent or any Lender an
amount owed by such Lender pursuant to the terms of this Credit Agreement,
or (c) has been deemed insolvent or has become subject to a bankruptcy or
insolvency proceeding or to a receiver, trustee or similar official.
"Dividends" means dividends paid in cash to or for the benefit of
shareholders of the Borrower for any period, including the Special
Dividend.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"Eligible Transferee" means and includes a commercial bank, financial
institution or other "accredited investor" as defined in Regulation D of
the Securities Act of 1933, (as amended).
"Environmental Laws" means any and all applicable foreign, federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority (or
other Requirement of Law including common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of human
health or the environment, as now or may at any time be in effect during
the term of this Credit Agreement.
7
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"Eurodollar Loan" means any Loan bearing interest at a rate determined
by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate determined pursuant to
the following formula:
Interbank Offered Rate
Eurodollar Rate = ---------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that percentage
(expressed as a decimal) which is in effect from time to time under
Regulation D of the Board of Governors of the Federal Reserve System (or
any successor), as such regulation may be amended from time to time or any
successor regulation, as the maximum reserve requirement (including,
without limitation, any basic, supplemental, emergency, special, or
marginal reserves) applicable with respect to Eurocurrency liabilities as
that term is defined in Regulation D or against any other category of
liabilities that includes deposits by reference to which the interest rate
of Eurodollar Loans is determined, whether or not Lender has any
Eurocurrency liabilities subject to such reserve requirement at that time.
Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and
as such shall be deemed subject to reserve requirements without benefit of
credits for proration, exceptions or offsets that may be available from
time to time to a Lender. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" is defined in Section 9.
"Execution Date" means the date as of which the parties hereto have
executed this Credit Agreement.
"Existing Credit Agreement" means the Credit Agreement, dated as of
May 31, 2002, among Journal Communications, Inc., those Subsidiaries
identified as a "Guarantor" on the signature pages thereto and such other
Subsidiaries as may have become a party thereto, the several lenders
identified on the signature pages thereto and such other lenders as may
have become a party thereto, and U.S. Bank National Association, as
administrative agent for the lenders thereunder.
"Extension of Credit" means as to any Lender, the making of a Loan by
such Lender.
8
"Federal Funds Rate" means, for any day, the rate of interest per
annum (rounded upwards, if necessary, to the nearest whole multiple of
1/100 of 1%) equal to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day,
provided that (A) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day and (B) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate quoted to the Agent on such day on such transactions as
determined by the Agent.
"Fee" means any fee payable pursuant to Section 3.4.
"Fixed Charge Coverage Ratio" means for any period, the ratio of
Consolidated EBIT, to the sum of (i) Consolidated Interest Expense and (ii)
principal amortization of Funded Debt and (iii) Dividends all as determined
without duplication for the Borrower and its Subsidiaries on a consolidated
basis and in accordance with GAAP applied on a consistent basis.
"Funded Debt" means without duplication, for any Person, all
Indebtedness of such Person described in paragraphs (a), (b), (c) and (k)
of the definition of Indebtedness and Guaranty Obligations by such Person
of Funded Debt of other Persons; provided, however, Funded Debt shall not
include Capital Leases of such Person if the aggregate principal portion of
all Capital Lease Obligations of such Person is less than $1,000,000.
Funded Debt shall include payments in respect of Funded Debt which
constitute current liabilities of the obligor under GAAP.
"GAAP" means generally accepted accounting principles in effect in the
United States of America applied on a consistent basis (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP).
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation" means, without duplication, as to any Person
(the "guaranteeing person"), any obligation of (a) the guaranteeing person
or (b) another Person (including, without limitation, any bank under any
letter of credit) to induce the creation of which the guaranteeing person
has issued a reimbursement, counter indemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of any
other third Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment
of any such primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the
9
primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in
good faith. The parties agree that the Borrower's historical practice of
paying dividends to JESTA does not currently constitute a Guarantee
Obligation under this Section.
"Guarantor" means each Person identified on the signature pages hereof
as a Guarantor and each Additional Credit Party which has executed a
Joinder Agreement, together with their successors and permitted assigns.
"Guaranty" means the guaranty of the Guarantors set forth in Section
4.
"Indebtedness" means, of any Person at any date, (a) all indebtedness
of such Person for borrowed money or for the deferred purchase price of
property or services other than trade liabilities incurred in the ordinary
course of business and not restructured thereafter for credit reasons, (b)
any other indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, (c) all obligations of such Person under
Capital Leases, (d) all obligations of such Person in respect of
acceptances issued or created for the account of such Person, (e) all
liabilities (not to exceed the value of the asset subject to a Lien)
secured by any Lien on any property owned by such Person even though such
Person has not assumed or otherwise become liable for the payment thereof,
(f) all obligations of such Person under conditional sale or other title
retention agreements relating to property purchased by such Person other
than customary reservations or retentions of title under operating leases
and agreements with suppliers entered into in the ordinary course of
business), (g) all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (h) all Guarantee Obligations
of such Person, (i) all obligations of such Person in respect of interest
rate protection agreements, foreign currency exchange agreements, commodity
purchase or option agreements or other interest or exchange rate or
commodity price hedging agreements, (j) the maximum amount of all letters
of credit issued or bankers' acceptances created for the account of such
Person and, without duplication, all drafts drawn thereunder to the extent
not theretofore reimbursed, (k) all preferred stock issued by such Person
and required by the terms thereto to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date (provided, however, in any
event the
10
Class C Shares shall not constitute preferred stock hereunder), (l) all
other obligations which would be shown as a liability on the balance sheet
of such Person, and (m) the outstanding recourse liability for uncollected
accounts receivable of such Person subject at such time to a sale of
receivables or other similar transaction, only if such transaction is
effected with recourse to such Person; but specifically excluding from the
foregoing (x) trade payables, (y) obligations for deposits and advances by
customers for the purchase of goods or services from the Borrower and its
Subsidiaries, and (z) other obligations, expenses and reserves (whether
classified as long term or short term) arising or incurred in the ordinary
course of business. For purposes hereof, Indebtedness shall include
Indebtedness of any partnership in which such Person is a general partner
(except for any such Indebtedness with respect to which the holder is
limited to the assets of such partnership or joint venture).
"Indemnified Liabilities" is defined in Section 11.5.
"Initial Public Offering" means the initial public offering described
in Step 3 of the Recapitalization as set forth on Schedule 1.1(a).
"Insolvency" means with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term as
used in Section 4245 of ERISA.
"Interbank Offered Rate" means, with respect to any Eurodollar Loan
for the Interest Period applicable thereto, the per annum rate of interest
determined by the Agent (each such determination to be conclusive and
binding absent manifest error) to be the average (rounded up, if necessary,
to the nearest one-sixteenth (1/16) of one percent) of the offered rates
for deposits in U.S. dollars for the applicable Interest Period which
appear on the display known as "British Bankers Assoc. Interest Settlement
Rates" on the Telerate System, Page 3750 (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 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period (the
"Calculation Date"), except as provided below. If fewer than two offered
rates appear for the applicable Interest Period or if the appropriate
screen is not accessible as of such time, the term "Interbank Offered Rate"
shall mean the per annum rate of interest determined by the Agent (each
such determination to be conclusive and binding absent manifest error) to
be the average (rounded up, if necessary, to the nearest one-sixteenth
(1/16) of one percent) as the effective rate at which deposits in
immediately available funds in Dollars are being, have been, or would be
offered or quoted by major banks to the Agent in the applicable interbank
market for Eurodollar deposits at 11:00 a.m. (Milwaukee, Wisconsin) on the
Business Day which is the second Business Day immediately preceding the
first day of such Interest Period, for a term comparable to such Interest
Period and in the amount of the requested Eurodollar Loan. If no such
offers or quotes are generally available for such amount, then the
provisions of Section 3.6 shall apply.
11
"Interest Payment Date" means (a) as to any Prime Rate Loan, the last
day of each month and the Revolving Termination Date, (b) as to any
Eurodollar Loan the last day of the applicable Interest Period. Whenever
any Interest Payment Date shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day, except that in the case of Eurodollar Loans, if the extension
would cause the payment to be made in the next following calendar month,
then such payment shall instead be made on the next preceding Business Day
as provided in Section 3.13.
"Interest Period" means with respect to any Eurodollar Loan,
(i) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one, two or three months, or if an Interbank Offered Rate is available
therefor, one week, thereafter, as selected by the Borrower in the notice of
borrowing or notice of conversion given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such Eurodollar Loan and
ending one, two or three months, or if an Interbank Offered Rate is available
therefor, one week, thereafter, as selected by the Borrower by irrevocable
notice to the Agent not less than two Business Days prior to the last day of the
then current Interest Period with respect thereto;
provided that the foregoing provisions are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the immediately
preceding Business Day;
(B) any Interest Period pertaining to a Eurodollar Loan that begins on
the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the relevant
calendar month;
(C) if the Borrower shall fail to give notice as provided above, the
Borrower shall be deemed to have selected a Prime Rate Loan to replace the
affected Eurodollar Loan;
(D) any Interest Period that would otherwise extend beyond the
Revolving Termination Date shall end on the Revolving Termination Date; and
(E) no more than ten (10) Eurodollar Loans may be in effect at any
time. For purposes hereof, Eurodollar Loans with different Interest Periods
shall be considered as separate Eurodollar Loans, although borrowings,
extensions and conversions may, in accordance with the provisions hereof,
be combined at the
12
end of existing Interest Periods to constitute a new Eurodollar Loan with a
single Interest Period.
"JESTA" means the Journal Employees Stock Trust.
"JESTA Units" means units of beneficial interests in JESTA.
"Joinder Agreement" means a Joinder Agreement substantially in the
form of Exhibit 7.10, executed and delivered by an Additional Credit Party
in accordance with the provisions of Section 7.10.
"Lenders" means each of the Persons identified as a "Lender" on the
signature pages hereto, and each Person which may become a Lender by way of
assignment in accordance with the terms hereof, together with their
successors and permitted assigns.
"Lien" means any mortgage, pledge, hypothecation, assignment for
security purposes, security interest, encumbrance, lien (statutory or
otherwise) or charge of any kind including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement
(excluding operating leases), any financing or similar statement or notice
filed properly under the Uniform Commercial Code as adopted and in effect
in the relevant jurisdiction (or other similar recording or notice statute,
and any lease in the nature thereof), except (i) a filing for precautionary
purposes made with respect to a true lease or other true bailment, and (ii)
a filing made without the Borrower's consent or which the Borrower is
contesting in good faith by appropriate proceedings, provided that the debt
purported to be secured by such filing does not exceed $500,000.
"Loan" means a Revolving Loan or a Swing Line Loan.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower or the other Credit Parties to perform their obligations, when
such obligations are required to be performed, under this Credit Agreement
or any of the other Credit Documents or (c) the validity or enforceability
of this Credit Agreement, any of the Notes or any of the other Credit
Documents or the rights or remedies of the Agent or the Lenders hereunder
or thereunder.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"May 2003 Shareholders Agreement" means the Shareholders Agreement,
dated as of May 12, 2003, by and among Journal Communications, Inc., The
Journal Company, Matex Inc. and Xxxxx Family Journal Stock Trust, as in
effect on the Effective Date.
13
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating
securities.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes" is defined in Section 3.9.
"Non-Guarantor Subsidiaries" is defined in Section 7.10.
"Note" or "Notes" means the Revolving Notes, individually or
collectively, as appropriate.
"Notice of Borrowing" means the written notice of borrowing as
referenced and defined in Section 2.1(b)(i).
"Notice of Extension/Conversion" means the written notice of extension
or conversion as referenced and defined in Section 3.2.
"Participant" and "Participants" are defined in Section 11.6.
"PBGC" means the Pension Benefit Guaranty Corporation established
under ERISA, and any successor thereto.
"Permitted Guarantee Obligations" means (i) a Guaranty and (iii)
Guarantee Obligations of the Borrower and its Subsidiaries relating to
Indebtedness of the Borrower or a Subsidiary otherwise permitted under
Section 8.1.
"Permitted Investments" means (i) cash and Cash Equivalents, (ii)
receivables owing to the Borrower or any of its Subsidiaries for trade
credit, in each case if created, acquired or made in the ordinary course of
business, (iii) loans and advances in the ordinary course of business to
officers, directors, employees, Affiliates who are not Credit Parties and
suppliers in an aggregate amount not to exceed $2,000,000 at any time
outstanding, (iv) investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and customers
and in settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business, (v)
investments, acquisitions or transactions permitted under Section 8.4(b),
(vi) with respect to any pension trust maintained for the benefit of any
present or former employees of the Borrower or any Subsidiary, such loans,
advances and/or investments as the trustee or administrator of the trust
shall deem advisable pursuant to the terms of such trust, (vii) investments
in wholly-owned Subsidiaries of the Borrower, provided that such
investments in Non-Guarantor Subsidiaries of the Borrower shall not exceed
a maximum aggregate amount of 10% of Consolidated Tangible Net Worth at any
one time, (viii) investments of a nature not contemplated by the foregoing
clauses hereof that are outstanding as of the Execution Date and set forth
in the Audited Financial Statements, (ix) purchases of Class B Shares
pursuant to the Recapitalization, and (x) additional loan advances and/or
investments of a nature not contemplated by the
14
foregoing clauses hereof provided that such loans, advances and/or
investments made pursuant to this clause (x) shall not exceed an aggregate
amount of $2,000,000 outstanding at any one time and further provided that
no such loans, advances and/or investments shall be used to acquire all or
substantially all of the voting stock of any corporation the board of
directors of which has not approved such acquisition. As used herein,
"investment" means all investments, in cash or by delivery of property
made, directly or indirectly in, to or from any Person, whether by
acquisition of shares of capital stock, property, assets, indebtedness or
other obligations or securities or by loan advance, capital contribution or
otherwise.
"Permitted Liens" means
(i) Liens in favor of the Agent for the benefit of the Lenders;
(ii) purchase money Liens securing purchase money indebtedness
(and refinancings thereof) and Capital Lease Obligations provided the
sum of the aggregate indebtedness and principal portion of Capital
Lease Obligations does not exceed $20,000,000 any time outstanding for
the Borrower and its Subsidiaries;
(iii) Liens for taxes, assessments, charges or other governmental
levies not yet due or as to which the period of grace, if any, related
thereto has not expired or which are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect
thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP (or, in the
case of Subsidiaries with significant operations outside of the United
States of America, generally accepted accounting principles in effect
from time to time in their respective jurisdictions of incorporation);
(iv) carriers', warehousemen's, mechanics', material-men's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(v) pledges or deposits in connection with workers compensation,
unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(vi) deposits to secure the performance of bids, trade contracts,
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(vii) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Lien referred to in the foregoing clauses; provided that such
extension, renewal or replacement Lien shall be limited to all or a
part of the property which secured the Lien so extended, renewed or
replaced (plus improvements on such property);
15
(viii) easements, rights of way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not material in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any Subsidiary;
(ix) Liens in existence on the date hereof listed on Schedule
8.2, provided that no such Lien is spread to cover any additional
property (other than proceeds of the collateral originally subject to
such Lien in accordance with the instrument creating such Lien) after
the Closing Date and that the amount of Indebtedness secured thereby
is not increased;
(x) Liens on the property or assets of a corporation which
becomes a Subsidiary after the Closing Date, provided that (A) such
Liens existed at the time such corporation became a Subsidiary and
were not created in anticipation thereof, (B) no such Lien is spread
to cover any additional property (other than proceeds of the
collateral originally subject to such Lien in accordance with the
instrument creating such Lien) after the Closing Date and (C) the
aggregate amount of Indebtedness secured thereby does not exceed
$20,000,000 at any time outstanding;
(xi) Liens in the nature of licenses that arise in the ordinary
course of business and consistent with past practice;
(xii) leases and subleases otherwise permitted hereunder granted
to others not interfering in any material respect in the business of
the Borrower or any Subsidiary; and
(xiii) attachment or judgment Liens, where the attachment or
judgment which gave rise to such Liens does not constitute an Event of
Default hereunder.
"Permitted Sale-Leaseback Transaction" means a transaction pursuant to
which a Credit Party sells an item of equipment to a financial institution,
or other Person that regularly engages in such transactions in the ordinary
course of its business, and concurrently with such sale (i) leases such
item of equipment back from such financial institution or such other Person
and (ii) subleases such item of equipment to a customer of the Credit Party
pursuant to a sublease agreement under which such customer obtains an
option to purchase such item of equipment at or before the end of such
sublease.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other
enterprise (whether or not incorporated) or any Governmental Authority.
"Plan" means at any particular time, any employee benefit plan which
is covered by Title IV of ERISA and in respect of which the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
16
"Prime Rate" means, for any day, the higher of (i) the per annum rate
of interest established from time to time by the Agent at its principal
office in Milwaukee, Wisconsin as its Prime Rate, or (ii) the Federal Funds
Rate plus 1%. Any change in the interest rate resulting from a change in
the Prime Rate shall become effective as of 12:01 a.m. of the Business Day
on which each change in the Prime Rate is announced by the Agent. The Prime
Rate is a reference rate used by the Agent in determining interest rates on
certain loans and is not intended to be the lowest rate of interest charged
on any extension of credit to any debtor.
"Prime Rate Loan" means any Loan bearing interest at a rate determined
by reference to the Prime Rate.
"Properties" is defined in subsection 6.10(a).
"Provision for Income Taxes" means, for any period, all provisions for
any federal, state, city and foreign income taxes for such period,
including the provision for federal and state income taxes associated with
the Cumulative Effect of an Accounting Change for the Borrower and its
Subsidiaries on a consolidated basis for such period, determined in each
case in accordance with GAAP.
"Purchasing Lender" is defined in Section 11.6(c).
"Recapitalization" means Steps 1 through 4 of the Recapitalization
described in Schedule 1.1(a).
"Register" is defined in Section 11.6(d).
"Reorganization" means with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of such
term as used in Section 4241 of ERISA.
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty-day notice
period is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC
Reg. ss.2615.
"Required Lenders" means Lenders holding in the aggregate at least 51%
of the sum of (i) all Loans then outstanding at such time and (ii) the
aggregate unused Revolving Commitment at such time; provided, however, that
if any Lender shall be a Defaulting Lender at such time, then there shall
be excluded from the determination of Required Lenders the Loans of such
Defaulting Lender and such Defaulting Lender's Revolving Commitment, or
after termination of the Revolving Commitments, the principal balance of
the Loans owing to such Defaulting Lender.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other
17
Governmental Authority, in each case applicable to or binding upon such
Person or to which any of its material property is subject.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans in an aggregate principal
amount at any time outstanding up to such Lender's Revolving Committed
Amount as specified in Schedule 2.1(a) (subject to adjustment on account of
assignment pursuant to the provisions of Section 11.6(c) hereof), as such
amount may be reduced from time to time in accordance with the provisions
hereof.
"Revolving Commitment Percentage" means, with respect to each Lender,
the percentage identified as its Revolving Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 11.6(c).
"Revolving Commitment Period" means the period from and including the
Closing Date to but not including the Revolving Termination Date.
"Revolving Committed Amount" means collectively, the aggregate amount
of all of the Revolving Commitments as referenced in Section 2.1(a) and,
individually, the amount of each Lender's Revolving Commitment as specified
in Schedule 2.1(a) (subject to adjustment on account of assignment pursuant
to the provisions of Section 11.6(c)).
"Revolving Loans" is defined in Section 2.1.
"Revolving Note" or "Revolving Notes" means the promissory notes of
the Borrower in favor of each of the Lenders evidencing the Revolving Loans
provided pursuant to Section 2.1(e), individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"Revolving Termination Date" means September 4, 2008 or the earlier
termination in full of the Revolving Commitments pursuant to this
Agreement.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such division
in the business of rating securities.
"Single Employer Plan" means any Plan which is not a Multi-Employer
Plan.
"Solvent" means, with respect to any Credit Party as of a particular
date, that on such date (i) such Credit Party is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of business, (ii)
such Credit Party does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Credit Party's ability to pay as
such debts and liabilities mature in their ordinary course, (iii) such
Credit Party is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for
18
which such Credit Party's property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the
industry in which such Credit Party is engaged or is to engage, (vi) the
fair value of the property of such Credit Party is greater than the total
amount of liabilities, including, without limitation, contingent
liabilities, of such Credit Party and (v) the present fair saleable value
of the assets of such Credit Party is not less than the amount that will be
required to pay the probable liability of such Credit Party on its debts as
they become absolute and matured. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.
"Special Dividend" means the special dividend described in Step 1 of
the Recapitalization as set forth on Schedule 1.1(a).
"Specified Sales" means (i) the sale, transfer, lease or other
disposition of inventory, equipment and materials in the ordinary course of
business, (ii) the sale, transfer, lease or other disposition of machinery,
parts, equipment and real estate no longer useful in the conduct of the
business of the Borrower or any of its Subsidiaries, as appropriate, and
(iii) the sale by the Borrower of any shares of its capital stock.
"Subsidiary" means, as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person, provided that JESTA
shall not be considered a Subsidiary of the Borrower. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Credit Agreement shall refer to a Subsidiary or Subsidiaries of the
Borrower.
"Swing Line Lender" means U.S. Bank National Association.
"Swing Line Loan" means a loan made by the Swing Line Lender to the
Borrower under Section 2.2.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$20,000,000 and (b) the Aggregate Revolving Committed Amount. The Swing
Line Sublimit is part of, and not in addition to, the Aggregate Revolving
Committed Amount.
"Tender Offer" means the tender offer described in Step 4 of the
Recapitalization as set forth on Schedule 1.1(a).
"Threshold Requirement" is defined in Section 7.10.
"Transfer Effective Date" is defined in the Commitment Transfer
Supplement.
19
"Transferee" is defined in Section 11.6(f).
"Type" means, as to any Loan, its nature as a Prime Rate Loan or a
Eurodollar Loan, as the case may be.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all capitalized definitional
terms defined in this Credit Agreement shall have the defined meanings when
used in the Notes or other Credit Documents or any certificate or other
document made or delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Credit Agreement shall refer to this Credit
Agreement as a whole and not to any particular provision of this Credit
Agreement, and Section, subsection, Schedule and Exhibit references are to
this Credit Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(d) For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean
"to but excluding".
1.3 Accounting Terms and Determinations. Unless otherwise specified herein,
all terms of an accounting character used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with GAAP,
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants or otherwise required by a change in GAAP) with
the Audited Financial Statements.
ARTICLE 2
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Revolving Commitment. During the Revolving Commitment Period,
subject to the terms and conditions hereof, each Lender severally agrees to
make revolving credit loans ("Revolving Loans") to the Borrower from time
to time for the purposes hereinafter set forth; provided, however, that (i)
with regard to each Lender individually, the sum of such Lender's share of
outstanding Revolving Loans plus such Lender's Commitment Percentage of
outstanding Swing Line Loans shall not exceed such Lender's Revolving
Committed Amount, and (ii) with regard to the Lenders collectively, the sum
of the aggregate amount of outstanding Revolving Loans plus the aggregate
amount of all outstanding Swing Line Loans shall not exceed THREE HUNDRED
FIFTY MILLION DOLLARS ($350,000,000) (as such aggregate maximum amount may
be reduced from time to time as provided herein). Revolving Loans may
consist of Prime Rate Loans or Eurodollar Loans, or a combination thereof,
as the
20
Borrower may request, and may be repaid and reborrowed in accordance with
the provisions hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Revolving
Loan borrowing by written notice (or telephone notice promptly
confirmed in writing which confirmation may be by fax) to the Agent
not later than 10:30 A.M. (Milwaukee, Wisconsin time) on the Business
Day of the requested borrowing in the case of Prime Rate Loans, and on
the second Business Day prior to the date of the requested borrowing
in the case of Eurodollar Loans. Each such request for borrowing shall
be irrevocable and shall specify (A) that a Revolving Loan is
requested, (B) the date of the requested borrowing (which shall be a
Business Day), (C) the aggregate principal amount to be borrowed, and
(D) whether the borrowing shall be comprised of Prime Rate Loans,
Eurodollar Loans or a combination thereof, and if Eurodollar Loans are
requested, the Interest Period(s) therefor. A form of Notice of
Borrowing a ("Notice of Borrowing") is attached as Exhibit 2.1(b)(i).
If the Borrower shall fail to specify in any such Notice of Borrowing
(I) an applicable Interest Period in the case of a Eurodollar Loan,
then such notice shall be deemed to be a request for an Interest
Period of one month, or (II) the type of Revolving Loan requested,
then such notice shall be deemed to be a request for a Prime Rate Loan
hereunder. The Agent shall give notice to each Lender (promptly upon
receipt of each Notice of Borrowing, and in any event not later than
12:00 noon, Milwaukee, Wisconsin time, with respect to any Notice of
Borrowing delivered to the Agent pursuant to this section) of the
contents thereof and each such Lender's share thereof.
(ii) Minimum Amounts. Each Revolving Loan borrowing shall be: (A)
if a Prime Rate Loan, in a minimum aggregate amount of $250,000 and
integral multiples of $100,000 in excess thereof; and (B) if a
Eurodollar Loan, in a minimum aggregate amount of $2,500,000 and
integral multiples of $500,000 in excess thereof (or, in either case,
the remaining amount of the Revolving Commitment, if less).
(iii) Advances. Each Lender will make its Commitment Percentage
of each Revolving Loan borrowing available to the Agent for the
account of the Borrower at the office of the Agent specified in
Schedule 11.2, or at such other office as the Agent may designate in
writing, by 1:30 P.M. (Milwaukee, Wisconsin time) on the date
specified in the applicable Notice of Borrowing in Dollars and in
funds immediately available to the Agent. Such borrowing will then be
made available to the Borrower by the Agent by crediting the account
of the Borrower on the books of such office with the aggregate of the
amounts made available to the Agent by the Lenders and in like funds
as received by the Agent by the close of Agent's business on such
date.
(c) Repayment. The principal amount of all Revolving Loans shall be
due and payable in full on the Revolving Termination Date.
(d) Interest. Subject to the provisions of Section 3.1, Revolving
Loans shall bear interest as follows:
21
(i) Prime Rate Loans. During such periods as Revolving Loans
shall be comprised of Prime Rate Loans, each such Prime Rate Loan
shall bear interest at a per annum rate equal to the sum of the Prime
Rate;
(ii) Eurodollar Loans. During such periods as Revolving Loans
shall be comprised of Eurodollar Loans, each such Eurodollar Loan
shall bear interest at a per annum rate equal to the sum of the
applicable Eurodollar Rate plus the Applicable Percentage; and
Interest on Revolving Loans shall be payable in arrears on each
Interest Payment Date.
(e) Revolving Notes. The Revolving Loans shall be evidenced by a duly
executed promissory note of the Borrower to each Lender in the original
principal amount of each such Lender's Revolving Committed Amount in
substantially the form of Exhibit 2.1(e).
2.2 Swing Line Loans.
(a) During the Revolving Commitment Period, subject to the terms and
conditions set forth in this Credit Agreement, the Swing Line Lender agrees
to make Swing Line Loans to the Borrower as the Borrower may from time to
time request for the purposes permitted hereby; provided, however, that (i)
the aggregate principal amount of all outstanding Swing Line Loans shall
not exceed the Swing Line Sublimit, (ii) the Loans of each Lender shall not
exceed such Lender's Revolving Commitment and (iii) the Loans of all
Lenders shall not exceed the Aggregate Revolving Committed Amount at any
time. This is a revolving credit and, subject to the foregoing and the
other terms and conditions hereof, the Borrower may borrow, prepay and
reborrow Swing Line Loans as set forth herein without premium or penalty;
provided, however, that Swing Line Lender may terminate or suspend the
Swing Line at any time in its sole discretion upon notice to the Borrower.
Each Swing Line Loan shall bear interest at a rate equal to the rate
applicable to Prime Rate Loans or at a rate quoted by the Agent and agreed
to by the Borrower.
(b) Unless notified to the contrary by Swing Line Lender, the Borrower
may irrevocably request a Swing Line Loan upon notice to the Swing Line
Lender. There is no minimum borrowing amount for a Swing Line Loan. Each
such request for a Swing Line Loan shall constitute a representation and
warranty by the Borrower that the conditions set forth in Section 5.2 are
satisfied. Promptly after receipt of such request, the Swing Line Lender
shall obtain telephonic verification from the Agent that such Swing Line
Loan is permitted hereunder. Upon receiving such verification, the Swing
Line Lender shall make such Swing Line Loan available to the Borrower.
Without the consent of Required Lenders and the Swing Line Lender, no Swing
Line Loan shall be made during the continuation of a Default or Event of
Default. Upon the making of each Swing Line Loan, each Lender shall be
deemed to have purchased from the Swing Line Lender a risk participation
therein in an amount equal to that Lender's Commitment Percentage times the
amount of the Swing Line Loan.
(c) Each Swing Line Loan shall bear interest at a fluctuating rate per
annum equal to the rate of interest payable on Prime Rate Loans or at the
rate quoted by the Agent and agreed to by the Borrower and interest shall
be payable upon demand of the Swing Line Lender, on the last day of each
month and on the Revolving Termination Date. The Swing Line Lender
22
shall be responsible for invoicing the Borrower (or notifying the Agent to
so invoice the Borrower) for such interest. The interest payable on Swing
Line Loans is solely for the account of the Swing Line Lender, except
following any funding of a risk participation under clause (f) below.
(d) The Borrower shall repay each Swing Line Loan on the earliest of
(i) upon demand made by Swing Line Lender and (ii) the Revolving
Termination Date. The Borrower shall repay the principal amount of each
Swing Line Loan by payment directly to Swing Line Lender or by Swing Line
Lender debiting the Borrower's deposit account at Swing Line Lender not
later than 10:00 a.m. (Milwaukee, Wisconsin time) for payments hereunder.
If the conditions precedent set forth in Section 5.2 can be satisfied, the
Borrower may request a Revolving Loan to repay Swing Line Lender, or,
failing to make such request, the Borrower shall be deemed to have
requested a Revolving Loan of Prime Rate Loans on such payment date
pursuant to subsection (f) below. Swing Line Lender shall promptly notify
the Agent of each Swing Line Loan and each payment thereof.
(e) If the Borrower fails to timely make any principal or interest
payment on any Swing Line Loan, Swing Line Lender shall notify the Agent of
such fact and the unpaid amount. The Agent shall promptly notify each
Lender of its pro rata share of such amount by 11:00 a.m. (Milwaukee,
Wisconsin time). Each Lender shall make funds in an amount equal to its pro
rata share of such amount available to the Agent at the Agent's payment
office not later than the 2:00 p.m. (Milwaukee, Wisconsin time) for
payments hereunder on the same Business Day. The obligation of each Lender
to make such payment shall be absolute and unconditional and shall not be
affected by the occurrence of an Event of Default or any other occurrence
or event. Any such payment shall not relieve or otherwise impair the
obligation of the Borrower to repay the Swing Line Lender for any amount of
Swing Line Loans, together with interest as provided herein.
(f) If the conditions precedent set forth in Section 5.2 can be
satisfied on any date the Borrower is obligated to, but fails to, repay a
Swing Line Loan, the funding by Lenders pursuant to the previous subsection
shall be deemed to be a borrowing of Prime Rate Loans (without regard to
the minimum amount therefor) deemed requested by the Borrower. If the
conditions precedent set forth in Section 5.2 cannot be satisfied on the
date the Borrower is obligated to make, but fails to make, such payment,
the funding by Lenders pursuant to the previous subsection shall be deemed
to be a funding by each Lender of its participation in such Swing Line
Loan, and each Lender making such funding shall thereupon acquire a pro
rata participation, to the extent of its payment, in the claim of Swing
Line Lender against the Borrower in respect of such payment and shall
share, in accordance with that pro rata participation, in any payment made
by the Borrower with respect to such claim. Any amounts made available by a
Lender under its risk participation shall be payable by the Borrower upon
demand of the Agent, and shall bear interest at a rate per annum equal to
the Prime Rate plus 2% per annum.
2.3 [Reserved]
23
ARTICLE 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate. Upon the occurrence, and during the continuance, of an
Event of Default, the principal of and, to the extent permitted by law, interest
on the Loans and any other amounts owing hereunder or under the other Credit
Documents shall bear interest, payable on demand, at a per annum rate which is
equal to the rate which would otherwise be applicable (or if no rate is
applicable, whether in respect of interest, fees or other amounts, then the
Prime Rate) plus 2%.
3.2 Extension and Conversion. The Borrower shall have the option, on any
Business Day, to extend existing Loans into a subsequent permissible Interest
Period or to convert Loans into Loans of another Type; provided, however, that
(i) except as provided in Sections 3.6 and 3.7, Eurodollar Loans may be
converted into Prime Rate Loans only on the last day of the Interest Period
applicable thereto, (ii) Eurodollar Loans may be extended, and Prime Rate Loans
may be converted into Eurodollar Loans, only if no Default or Event of Default
is in existence on the date of extension or conversion, (iii) Loans extended as,
or converted into, Eurodollar Loans shall be subject to the terms of the
definition of "Interest Period" set forth in Section 1.1 and shall be in such
minimum amounts as provided in Section 2.l(b)(ii) and (iv) any request for
extension or conversion of a Eurodollar Loan which shall fail to specify an
Interest Period shall be deemed to be a request for an Interest Period of one
month. Each such extension or conversion shall be effected by the Borrower by
giving a Notice of Extension/Conversion in the form of Exhibit 3.2 (or telephone
notice promptly confirmed in writing) to the Agent prior to 10:30 A.M.
(Milwaukee, Wisconsin time) on the Business Day of, in the case of the
conversion of a Eurodollar Loan into a Prime Rate Loan and on the second
Business Day prior to, in the case of the extension of a Eurodollar Loan as, or
conversion of a Prime Rate Loan into, a Eurodollar Loan, the date of the
proposed extension or conversion, specifying the date of the proposed extension
or conversion, the Loans to be so extended or converted, the Types of Loans into
which such Loans are to be converted and, if appropriate, the applicable
Interest Periods with respect thereto. Each request for extension or conversion
shall constitute a representation and warranty by the Borrower of the matters
specified in paragraphs (a) and (b), and in (c) or (d), of Section 5.2. In the
event the Borrower fails to request extension or conversion of any Eurodollar
Loan in accordance with this Section, or any such conversion or extension is not
permitted or required by this Section, then such Loans shall be automatically
converted into Prime Rate Loans at the end of their Interest Period. The Agent
shall give each Lender notice as promptly as practicable of any such proposed
extension or conversion affecting any Loan.
3.3 Reductions in Commitments and Prepayments.
(a) Reductions in Revolving Commitment. The Borrower may from time to
time permanently reduce the Aggregate Revolving Committed Amount in whole
or in part without premium or penalty except as provided in Section 3.10
upon three (3) Business Days' prior written notice to the Agent; provided
that after giving effect to any such voluntary reduction the sum of
Revolving Loans plus Swing Line Loans then outstanding shall not exceed the
Aggregate Revolving Committed Amount, as reduced. Except as otherwise
specified herein,
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partial reductions in the Aggregate Revolving Committed Amount shall in
each case be in a minimum aggregate amount of $5,000,000 and integral
multiples of $500,000 in excess thereof.
(b) Mandatory Prepayment on Revolving Loans. If at any time the
aggregate amount of all outstanding Revolving Loans plus the aggregate
amount of all outstanding Swing Line Loans shall exceed the Aggregate
Revolving Committed Amount, as reduced from time to time, the Borrower
shall immediately make payment on the Swing Line Loans and then, if
necessary, on the Revolving Loans in an amount sufficient to eliminate the
deficiency. Any such payments shall be applied first to Prime Rate Loans
and then to Eurodollar Loans in direct order of their Interest Period
maturities.
(c) Voluntary Prepayments. Loans may be prepaid in whole or in part
without premium or penalty except as provided in Section 3.10. Any partial
prepayment shall be (i) if a Prime Rate Loan, in a minimum aggregate amount
of $250,000 and integral multiples of $100,000 in excess thereof; and (ii)
if a Eurodollar Loan, in a minimum aggregate amount of $2,500,000 and
integral multiples of $500,000 in excess thereof (or, in either case, the
remaining outstanding principal balance of the Revolving Loans). Except as
otherwise specified herein, amounts prepaid on the Revolving Loans may be
reborrowed in accordance with the provisions hereof.
3.4 Fees.
(a) Upfront Fee. The Borrower agrees to pay to the Agent, for the
benefit of the Lenders, the upfront fee (the "Upfront Fee") referred to in
that certain Lenders' fee letter of even date herewith. The Upfront Fee
shall be earned and payable as set forth in such letter.
(b) Unused Facility Fee. The Borrower agrees to pay to the Agent, for
the ratable benefit of the Lenders, an unused facility fee (the "Unused
Facility Fee") in an amount equal to the product of (i) the average daily
unused portion of the Revolving Committed Amount, as the same may be
reduced from time to time hereunder, (computed on a quarterly basis in
arrears as of the last day of each June, September, December and March
commencing on the last day of the calendar quarter during which the Closing
Date occurs, based upon the daily utilization for that quarter as
calculated by the Agent) multiplied by (ii) the Applicable Percentage
divided by four. The Unused Facility Fee shall be due and payable quarterly
in arrears on the last day of each June, September, December and March
commencing on the last day of the calendar quarter during which the Closing
Date occurs, through the Revolving Termination Date (provided, that if the
last day of any such quarter is not a Business Day, then such payment shall
be due on the first Business Day thereafter). The Unused Facility Fee shall
be fully earned and payable on each such payment date. For purposes of
computing the Unused Facility Fee under this subsection 3.4(b), usage of
the Swing Line Sublimit shall not be considered usage of the Revolving
Committed Amount.
(c) Other Fees. The Borrower agrees to pay to the Agent such other
closing, administrative and structuring fees referred to in that certain
Agent's fee letter of even date herewith.
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3.5 Capital Adequacy. If any Lender has reasonably determined that the
adoption or effectiveness of any applicable law, rule or regulation regarding
capital adequacy made after the date hereof, or any change therein made after
the date hereof, or any change in the interpretation or administration thereof
by any Governmental Authority, central bank or comparable agency charged with
the interpretation or administration thereof made after the date hereof, or
compliance by such Lender or its parent company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency made after the date hereof, has or
would have the effect of reducing the rate of return on such Lender's or its
parent company's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration the policies of such Lender and its parent company with respect to
capital adequacy), then, within 10 Business Days after the Borrower's receipt of
the certificate referred to in the next sentence, the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender and its
parent company for such reduction; provided that no such amounts shall be
payable with respect to reduction in rate of return incurred more than three (3)
months before such Lender demands compensation under this Section 3.5. A
certificate as to the amount of such reduction in rate of return, the good faith
basis therefor and setting forth in reasonable detail the calculations used by
the applicable Lender to arrive at the amount or amounts claimed to be due,
shall be submitted to the Borrower and the Agent. Each determination by a Lender
of amounts owing under this Section shall be rebuttably presumptive evidence of
the matters set forth therein. No demand for payment under this Section shall be
made unless the Lender shall make comparable demands of other similarly situated
borrowers. The provisions of this Section shall survive termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.6 Inability To Determine Interest Rate. If prior to the first day of any
Interest Period, the Agent shall have reasonably determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, the
Agent shall give telecopy or telephonic notice thereof to the Borrower and the
Lenders as soon as practicable thereafter. If such notice is given (a) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as Prime Rate Loans, (b) any Loans that were to have been
converted on the first day of such Interest Period to or continued as Eurodollar
Loans shall be converted to or continued as Prime Rate Loans and (c) any
outstanding Eurodollar Loans shall be converted, on the first day of such
Interest Period, to Prime Rate Loans. Until such notice has been withdrawn by
the Agent, no further Eurodollar Loans shall be made or continued as such, nor
shall the Borrower have the right to convert Prime Rate Loans to Eurodollar
Loans.
3.7 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof occurring after the Closing Date shall make it unlawful for
any Lender to make or maintain Eurodollar Loans as contemplated by this Credit
Agreement, (a) such Lender shall promptly give written notice of such
circumstances to the Borrower and the Agent (which notice shall be withdrawn
whenever such circumstances no longer exist), (b) the commitment of such Lender
hereunder to make
26
Eurodollar Loans, continue Eurodollar Loans as such and convert a Prime Rate
Loan to Eurodollar Loans shall forthwith be canceled and, until such time as it
shall no longer be unlawful for such Lender to make or maintain Eurodollar
Loans, such Lender shall then have a commitment only to make a Prime Rate Loan
when a Eurodollar Loan is requested and (c) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Prime Rate
Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last day
of the then current Interest Period with respect thereto, the Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to Section
3.10.
3.8 Requirements of Law. If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
(a) (shall subject such Lender to any tax of any kind whatsoever on or
in respect of any Eurodollar Loans made by it or its obligation to make
Eurodollar Loans, or change the basis of taxation of payments to such
Lender in respect thereof except for Non-Excluded Taxes covered by Section
3.9 (including Non-Excluded Taxes imposed solely by reason of any failure
of such Lender to comply with its obligations under Section 3.9(b)) and
changes in taxes measured by or imposed upon the overall net income, or
franchise tax (imposed in lieu of such net income tax), of such Lender or
any branch or Affiliate thereof); or
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar condition or requirement against assets
held by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of funds
by, any office of such Lender which is not otherwise included in the
determination of the Eurodollar Rate hereunder;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, upon notice to the
Borrower from such Lender, through the Agent, in accordance herewith, the
Borrower shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable, provided that, in any such case, the Borrower may elect to convert
the Eurodollar Loans made by such Lender hereunder to Prime Rate Loans by giving
the Agent at least one Business Day's notice of such election, in which case the
Borrower shall promptly pay to such Lender, upon demand, without duplication,
such amounts, if any, as may be required pursuant to Section 3.10. If any Lender
becomes entitled to claim any additional amounts pursuant to this subsection, it
shall provide prompt notice thereof to the Borrower, through the Agent,
certifying (a) that one of the events described in this Section 3.8 has occurred
and describing in reasonable detail the nature of such event, (b) as to the
increased cost or reduced amount resulting from such event and (c) as to the
additional amount demanded by such Lender and a reasonably detailed
27
explanation of the calculation thereof. Such a certificate as to any additional
amounts payable pursuant to this subsection shall be submitted by such Lender,
through the Agent, to the Borrower and shall be conclusive in the absence of
manifest error. No demand for payment under this Section shall be made unless
the Lender shall make comparable demands of other similarly situated borrowers.
This covenant shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
3.9 Taxes.
(a) Except as provided below in this subsection, all payments made by
the Borrower under this Credit Agreement and any Notes shall be made free
and clear of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding taxes measured by or imposed upon the overall net
income of any Lender or any branch or Affiliate thereof, and all franchise
taxes, branch taxes, taxes on doing business or taxes on the overall
capital or net worth of any Lender, or any branch or Affiliate thereof, in
each case imposed in lieu of net income taxes, imposed: (i) by the
jurisdiction under the laws of which such Lender, branch or Affiliate is
organized or is located, or in which its principal executive office is
located, or any nation within which such jurisdiction is located or any
political subdivision thereof; or (ii) by reason of any connection between
the jurisdiction imposing such tax and such Lender, branch or Affiliate
other than a connection arising solely from such Lender having executed,
delivered or performed its obligations, or received payment under or
enforced, this Credit Agreement or any Notes. If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable
to the Agent or any Lender hereunder or under any Notes, (A) the amounts so
payable to the Agent or such Lender shall be increased to the extent
necessary to yield to the Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Credit Agreement and any
Notes, provided, however, that the Borrower shall be entitled to deduct and
withhold any Non-Excluded Taxes and shall not be required to increase any
such amounts payable to any Lender that is not organized under the laws of
the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection whenever
any Non-Excluded Taxes are payable by the Borrower, and (B) as promptly as
possible thereafter the Borrower shall send to the Agent for its own
account or for the account of such Lender, as the case may be, a certified
copy of an original official receipt received by the Borrower showing
payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when
due to the appropriate taxing authority or fails to remit to the Agent the
required receipts or other required documentary evidence, the Borrower
shall indemnify the Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Agent or any Lender as
a result of any such failure. The agreements in this subsection shall
survive the termination of this Credit Agreement and the payment of the
Loans and all other amounts payable hereunder.
(b) At least five Business Days prior to the first day on which
interest or Fees are payable hereunder for the account of any Lender, each
Lender that is not incorporated under the laws of the United States of
America, or a state thereof, agrees that it will deliver to each of
28
the Borrower and the Agent two duly completed copies of United States
Internal Revenue Service Form W-8ECI or W-8BEN, certifying in either case
that such Lender is entitled to receive payments under this Agreement and
the Notes without deduction or withholding of any United States federal
income taxes. Each Lender which so delivers a Form W-8ECI or W-8BEN further
undertakes to deliver to each of the Borrower and the Agent two additional
copies of such form (or a successor form) on or before the date that such
form expires (currently, three successive calendar years) or becomes
obsolete or after the occurrence of any event requiring a change in the
most recent forms so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by the
Borrower or the Agent, in each case certifying that such Lender is entitled
to receive payments under this Credit Agreement and the Notes without
deduction or withholding of any United States federal income taxes, unless
an event (including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which
would prevent such Lender from duly completing and delivering any such form
with respect to it and such Lender advises the Borrower and the Agent that
it is not capable of receiving payments without any deductions or
withholding of United States federal income tax.
3.10 Indemnity. The Borrower agrees to indemnify each Lender and to hold
each Lender harmless from any loss or expense which such Lender may sustain or
incur (other than through such Lender's gross negligence or willful misconduct)
as a consequence of (a) default by the Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after the Borrower has given
a notice requesting the same in accordance with the provisions of this Credit
Agreement, (b) default by the Borrower in making any prepayment of a Eurodollar
Loan after the Borrower has given a notice thereof in accordance with the
provisions of this Credit Agreement or (c) the making of a prepayment of
Eurodollar Loans on a day which is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the excess,
if any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to the
last day of the applicable Interest Period (or, in the case of a failure to
borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Eurodollar Loans provided for herein over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank Eurodollar market, provided, however, that the
amount of such lost interest, if any, shall be discounted to a present value as
of the date of the indemnification payment, using as the applicable discount
rate(s) the rate(s) of per annum interest used by such Lender in making the
computations pursuant to the foregoing clause (ii). Any Lender seeking indemnity
under this Section shall furnish a certificate to the Agent and the Borrower
setting forth in reasonable detail the basis for such Lender's indemnity claim.
This covenant shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
3.11 Pro Rata Treatment. Except to the extent otherwise provided herein:
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(a) Loans. Each Loan, each payment or prepayment of principal of any
Loan, each payment of interest on the Loans, each payment of Fees (other
than fees payable to the Agent for its own account pursuant to Section
3.4), each reduction of the Revolving Committed Amount, and each conversion
or extension of any Loan, shall be allocated pro rata among the Lenders in
accordance with the respective Commitment Percentages relating to such
respective Loans.
(b) Advances. Unless the Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its Commitment Percentage of such borrowing available
to the Agent, the Agent may assume that such Lender is making such amount
available to the Agent, and the Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Agent by such Lender within the time
period specified therefor hereunder, such Lender shall pay to the Agent, on
demand, such amount with interest thereon at a rate equal to the Federal
Funds Rate for the period until such Lender makes such amount immediately
available to the Agent. A certificate of the Agent submitted to any Lender
with respect to any amounts owing under this subsection shall be conclusive
in the absence of manifest error. If such Lender's Commitment Percentage of
such borrowing is not made available to the Agent by such Lender within two
business Days of the date of the related borrowing, (i) the Agent shall
notify the Borrower of the failure of such Lender to make such amount
available to the Agent and the Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to Prime Rate
Loans hereunder, on demand, from the Borrower and (ii) then the Borrower
may, without waiving any rights it may have against such Lender, (x)
request any one or more of the Lenders to increase its Commitment
Percentage and make such borrowing available, which request each such
Lender may in its sole discretion approve or deny, and (y) if any Lender
serving as Agent shall deny a request submitted to it pursuant to the
foregoing clause (x), borrow a like amount on an unsecured basis from any
commercial bank for a period ending on the date upon which such Lender does
in fact make such borrowing available; provided, however, that at the time
any such replacement borrowing is made and at all times while such amount
is outstanding the Borrower would be permitted to borrow such amount
pursuant to Section 2.1 of this Credit Agreement.
3.12 Sharing of Payments. The Lenders agree among themselves that, in the
event that any Lender shall obtain payment in respect of any Loan or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a participation in such Loans and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such
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payment shall, by repurchase of a participation theretofore sold, return its
share of that benefit (together with its share of any accrued interest payable
with respect thereto) to each Lender whose payment shall have been rescinded or
otherwise restored. The Borrower agrees that any Lender so purchasing such a
participation may, to the fullest extent permitted by law, exercise all rights
of payment, including setoff, banker's lien or counterclaim, with respect to
such participation as fully as if such Lender were a holder of such Loan or
other obligation in the amount of such participation. Except as otherwise
expressly provided in this Credit Agreement, if any Lender or the Agent shall
fail to remit to the Agent or any other Lender an amount payable by such Lender
or the Agent to the Agent or such other Lender pursuant to this Credit Agreement
on the date when such amount is due, such payments shall be made together with
interest thereon for each date from the date such amount is due until the date
such amount is paid to the Agent or such other Lender at a rate per annum equal
to the Federal Funds Rate. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section 3.12 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders under this Section 3.12 to share in the benefits of
any recovery on such secured claim.
3.13 Place and Manner of Payments. Except as otherwise specifically
provided herein, all payments hereunder shall be made to the Agent in Dollars in
immediately available funds, without offset, deduction, counterclaim or
withholding of any kind, at its offices at the Agent's office specified in
Schedule 11.2 not later than 1:00 P.M. (Milwaukee, Wisconsin time) on the date
when due. Payments received after such time shall be deemed to have been
received on the next succeeding Business Day. The Agent may, at the Borrower's
request, debit the amount of any such payment which is not made by such time to
Account No. 112045887 maintained by the Borrower with the Agent or any other
account which may be maintained by the Borrower with the Agent and designated
for such purpose by the Borrower. The Borrower shall, at the time it makes any
payment under this Credit Agreement, specify to the Agent the Loans, Fees or
other amounts payable by the Borrower hereunder to which such payment is to be
applied (and in the event that it fails so to specify, or if such application
would be inconsistent with the terms hereof, the Agent shall distribute such
payment to the Lenders in such manner as the Agent may determine to be
appropriate in respect of obligations owing by the Borrower hereunder, subject
to the terms of Section 3.11). The Agent will distribute such payments to such
Lenders, if any such payment is received prior to 1:00 p.m. (Milwaukee,
Wisconsin time) on a Business Day in like funds as received prior to the end of
such Business Day and otherwise the Agent will distribute such payment to such
Lenders on the next succeeding Business Day. Whenever any payment hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day, except that in
the case of Eurodollar Loans, if the extension would cause the payment to be
made in the next following calendar month, then such payment shall instead be
made on the next preceding Business Day. All computations of interest and fees
shall be made on the basis of actual number of days elapsed over a year of 360
days except computations of interest on Prime Rate Loans, which shall be made on
the basis of actual number of days elapsed over a year of 365 or 366 days, as
applicable. Interest shall accrue from and include the date of borrowing, but
exclude the date of payment.
3.14 [Reserved]
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3.15 Transfers at Borrower's Request. In the event that any Lender requests
payment by the Borrower of any additional amounts pursuant to Section 3.5, 3.7,
3.8 or 3.9, then, provided that no Default or Event of Default has occurred and
is continuing at such time, the Borrower may, at its own expense (such expense
to include any transfer fee payable to the Agent under Section 11.6(b)), and in
its sole discretion require such Lender to transfer and assign in whole or in
part, without recourse (in accordance with and subject to the terms and
conditions of Section 11.6(b)), all or part of its interests, rights and
obligations under this Credit Agreement to an Eligible Transferee which shall
assume such assigned obligations; provided that (i) the other Lenders may, by
written notice to the Agent, the Lenders and the Borrower, in their respective
discretion, elect to assume such Lender's Revolving Commitment, pro rata based
upon the respective Commitment Percentages of the other Lenders so electing to
assume such Lender's Revolving Commitments hereunder, (ii) such Eligible
Transferee which is not a Lender shall be reasonably acceptable to the Required
Lenders, (iii) such assignment shall not relieve the Borrower from its
obligations to pay such additional amounts that may be due in accordance with
Section 3.5, 3.7, 3.8 or 3.9, (iv) such assignment shall not conflict with any
law, rule or regulation or order of any court or other Governmental Authority
and (v) the Borrower or such Eligible Transferee shall have paid to the
assigning Lender in immediately available funds the principal of and interest
accrued to the date of such payment on the Loans made by it hereunder and all
accrued Fees and other amounts owed to it hereunder.
ARTICLE 4
GUARANTY
4.1 The Guaranty. Each of the Credit Parties hereby jointly and severally
guarantees to each Lender and the Agent as hereinafter provided the prompt
payment of the Credit Party Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in
accordance with the terms thereof. The Credit Parties hereby further agree that
if any of the Credit Party Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration or otherwise), the
Credit Parties will, jointly and severally, promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Credit Party Obligations, the same will be
promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration or otherwise) in accordance with the terms of such
extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any other
of the Credit Documents, the guaranty obligations of each Credit Party hereunder
shall be limited to an aggregate amount equal to the largest amount that would
not render its obligations hereunder subject to avoidance under Section 548 of
the U.S. Bankruptcy Code or any comparable provisions of any applicable state
law.
4.2 Obligations Unconditional. The obligations of the Credit Parties under
Section 4.1 hereof are joint and several, absolute and unconditional,
irrespective of the value, genuineness, validity or enforceability of any of the
Credit Documents, or any other agreement or instrument referred to therein, or
any substitution, release or exchange of any other guarantee
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of or security for any of the Credit Party Obligations, and, to the fullest
extent permitted by applicable law, irrespective of any other circumstance
whatsoever which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, it being the intent of this Section 4.2 that
the obligations of the Credit Parties hereunder shall be absolute and
unconditional under any and all circumstances other than indefeasible payment in
full. Without limiting the generality of the foregoing, it is agreed that the
occurrence of any one or more of the following shall not alter or impair the
liability of any Credit Party hereunder which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to any Credit
Party, the time for any performance of or compliance with any of the Credit
Party Obligations shall be extended, or such performance or compliance
shall be waived;
(b) any of the acts mentioned in any of the provisions of any of the
Credit Documents or any other agreement or instrument referred therein
shall be done or omitted;
(c) the maturity of any of the Credit Party Obligations shall be
accelerated, or any of the Credit Party Obligations shall be modified,
supplemented or amended in any respect, or any right under any of the
Credit Documents or any other agreement or instrument referred to therein
shall be waived or any other guarantee of any of the Credit Party
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Agent or any Lender or
Lenders as security for any of the Credit Party Obligations shall fail to
attach or be perfected; or
(e) any of the Credit Party Obligations shall be determined to be void
or voidable (including, without limitation, for the benefit of any creditor
of any Credit Party) or shall be subordinated to the claims of any Person
(including, without limitation, any creditor of any Credit Party).
With respect to its obligations hereunder, each Credit Party hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Lender exhaust any right,
power or remedy or proceed against any Person under any of the Credit Documents
or any other agreement or instrument referred to therein, or against any other
Person under any other guarantee of, or security for, any of the Credit Party
Obligations.
4.3 Reinstatement. The obligations of the Credit Parties under this
Section 4 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Person in respect of the Credit Party
Obligations is rescinded or must be otherwise restored by any holder of any of
the Credit Party Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and each Credit Party agrees that it
will indemnify each of the Agent and each Lender on demand for all reasonable
costs and expenses (including, without limitation, reasonable attorneys' fees)
incurred by the Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
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4.4 Certain Additional Waivers. Without limiting the generality of the
provisions of any other Section of this Section 4, each Credit Party further
agrees that it shall have no right of recourse to security for the Credit Party
Obligations. Each of the Credit Parties further agrees that it shall have no
right of subrogation, reimbursement or indemnity, nor any right of recourse to
security, if any, for the Credit Party Obligations until indefeasible payment in
full of all such obligations shall have been made.
4.5 Remedies. The Credit Parties agree that, as between the Credit
Parties, on the one hand, and the Agent and the Lenders, on the other hand, the
Credit Party Obligations may be declared to be forthwith due (and payable as
provided in Section 9 hereof and shall be deemed to have become automatically
due and payable in the circumstances provided in said Section 9) for purposes of
Section 4.1 hereof notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing such Credit Party Obligations from
becoming automatically due and payable) as against any other Person and that, in
the event of such declaration (or such Credit Party Obligations being deemed to
have become automatically due and payable), such Credit Party Obligations
whether or not due and payable by any other Person) shall forthwith become due
and payable by the Credit Parties for purposes of said Section 4.1.
4.6 Continuing Guarantee. The guarantee in this Section 4 is a continuing
guarantee, and shall apply to all Credit Party Obligations whenever arising.
ARTICLE 5
CONDITIONS
5.1 Conditions to Closing Date. This Credit Agreement shall become
effective on the Closing Date upon satisfaction of the following conditions
precedent:
(a) Execution of Agreement. The Agent shall have received (i) multiple
counterparts of this Credit Agreement for each Lender, executed by a duly
authorized officer of each party hereto, and (ii) for the account of each
Lender a Revolving Note.
(b) Consummation of Recapitalization Steps 1-3. The Agent shall have
received evidence satisfactory to it that Steps 1, 2 and 3 of the
Recapitalization have been consummated on or before November 30, 2003.
(c) Certificate of Financial Condition. The Agent shall have received
a Certificate of Financial Condition in the form of Exhibit 5.1(c) with
appropriate insertions and attachments.
(d) Financial Information. The Agent shall have received copies of the
Audited Financial Statements and interim quarterly company-prepared
consolidated financial statements for the Borrower and its Consolidated
Subsidiaries for each fiscal quarter ended thereafter until the Closing
Date together with such other financial information as any Lender may
reasonably request. In addition, the Agent shall have received a
certificate of an authorized financial officer of the Borrower containing
pro forma calculations demonstrating the Borrower's compliance with the
financial covenants contained in Section 7.9 hereof as of (X) the
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end of the Borrower's most recently completed fiscal quarter, after giving
effect to the consummation of Steps 1, 2 and 3 of the Recapitalization as
if such transactions had been completed on or before the end of the most
recently completed fiscal quarter (including the use of financial
information for the fourth fiscal quarter, if applicable, whether or not
the Borrower shall have delivered, as of the date of such certificate, the
financial information required pursuant to Section 7.1) and (Y) the end of
the Borrower's then-current fiscal quarter, after giving effect to such
transactions as if they had been completed on the Closing Date, using
financial projections prepared by the Borrower in good faith based upon
reasonable assumptions which are set forth in such certificate or otherwise
provided in writing to the Agent.
(e) Corporate Documents. The Agent shall have received each of the
following:
(i) Articles of Incorporation. Copies of the articles of
incorporation or other applicable charter documents of the Borrower
and each of the other Credit Parties certified to be true and complete
as of a recent date by the appropriate governmental authority of the
state of its incorporation or organization.
(ii) Resolutions. Copies of resolutions of the board of directors
of the Borrower and of each of the other Credit Parties approving and
adopting the Credit Documents, the transactions contemplated therein
and authorizing execution and delivery thereof, certified by the
secretary or assistant secretary as of the Closing Date to be true and
correct and in force and effect as of such date.
(iii) Bylaws. A copy of the Bylaws of the Borrower and of each of
the other Credit Parties certified by the secretary or assistant
secretary as of the Closing Date to be true and correct and in force
and effect as of such date.
(iv) Good Standing. Copies of certificates of good standing,
existence or its equivalent with respect to the Borrower and each of
the other Credit Parties certified as of a recent date by the
appropriate Governmental Authorities of the state of incorporation or
organization and each other state in which the failure to so qualify
and be in good standing would have a material adverse effect on the
business or operations of the Borrower or other Credit Party in such
state.
(f) Officer's Certificate. The Agent shall have received, with a
counterpart for each Lender, a certificate of a duly authorized officer of
each of the Borrower and each of the other Credit Parties dated the Closing
Date, substantially in the form of Exhibit 5.1(f) with appropriate
insertions and attachments.
(g) Legal Opinion of Counsel. The Agent shall have received, with a
copy for each Lender, an opinion of Xxxxx & Xxxxxxx, counsel for the
Borrower and the Guarantors, dated the Closing Date and addressed to the
Agent and the Lenders, in form and substance satisfactory to the Agent and
the Lenders.
(h) Fees. The Agent and the Lenders shall have received all Fees owing
pursuant to Section 3.4.
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(i) Liability and Casualty Insurance. The Agent shall have received
copies of insurance policies or certificates of insurance evidencing
liability and casualty insurance meeting the requirements set forth herein.
(j) Subsection 5.2 Conditions. The conditions specified in subsections
5.2(a) and (b) shall be satisfied on the Closing Date as if Loans were to
be made on such date.
(k) Existing Credit Agreement. The Existing Credit Agreement shall be
terminated prior to or contemporaneously with the making of the initial
Loans under this Agreement and all loans and other obligations outstanding
under the Existing Credit Agreement shall be paid in full prior to or
contemporaneously with the making of the initial Loans under this
Agreement.
(l) The Agent shall have received an authorization letter in the form
of Exhibit 5.1(l) with appropriate insertions.
(m) UCC Search Reports; Other Documents. The Agent shall have received
such UCC search reports and other approvals, opinions, documents or
materials as the Agent or any Lender shall reasonably request.
(n) Additional Matters. All documents and legal matters in connection
with the transactions contemplated by this Credit Agreement shall be
reasonably satisfactory in form and substance to the Agent and the Lenders.
(o) Closing Date. Each of the foregoing conditions precedent shall
have been satisfied on or before November 30, 2003.
5.2 Conditions to All Loans. The obligation of each Lender to make any
Extension of Credit hereunder (including the initial Loans to be made hereunder)
is subject to the satisfaction of the following conditions precedent on the date
of making such Extension of Credit:
(a) Representations and Warranties. Except as modified pursuant to
Section 6.16, the representations and warranties made by the Borrower and
the other Credit Parties herein or which are contained in any certificate
furnished at any time under or in connection herewith shall be true and
correct on and as of the date of such Extension of Credit as if made on and
as of such date.
(b) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect
to the Extension of Credit to be made on such date unless such Default or
Event of Default shall have been waived in accordance with this Credit
Agreement.
(c) Additional Conditions to Loans. If such Extension of Credit is
made pursuant to Section 2.1 or 2.2, all conditions set forth in such
Section, as applicable, shall have been satisfied.
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Each request for an Extension of Credit and each acceptance by the Borrower
of an Extension of Credit shall be deemed to constitute a representation and
warranty by the Borrower as of the date of such Extension of Credit that the
applicable conditions in this Section 5.2 have been satisfied.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make the
Loans herein provided for, each of the Credit Parties hereby represents and
warrants to the Agent and to each Lender that as of the Closing Date, and at all
times thereafter (except as specifically set forth below in this Section 6):
6.1 Financial Statements. Prior to the Closing Date the Borrower has or
will have furnished to the Lenders (a) the audited consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of December 31, 2002, and
related audited statements of income, shareholders' equity and cash flows for
the year ended on that date, together with an unqualified opinion thereon by
Ernst & Young LLP, and (b) the unaudited consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of June 15, 2003 and related
statements of income, shareholders' equity and cash flows for the periods ended
on such date, prepared by the Borrower. Such financial statements were prepared
in accordance with GAAP consistently applied throughout the periods involved,
are correct and complete and fairly present the consolidated financial condition
of the Borrower and such Subsidiaries as of such dates and the results of their
operations for the periods ended on such dates, subject, in the case of the
unaudited interim statements, to the absence of footnotes, audit and normal
year-end adjustments. Since June 15, 2003 there has been no development or event
which has had a Material Adverse Effect. Schedule 6.1 sets forth the last day of
the Borrower's fiscal quarters for the period from the third fiscal quarter of
2003 through the fiscal year end 2008.
6.2 Ownership of Properties; Liens and Encumbrances. Each of the Borrower
and its Subsidiaries has good and marketable title (or has an interest as a
lessee) to all property, real and personal, as reflected on the most recent
financial statement of the Borrower furnished to the Lenders, and all property
purported to have been acquired (or leased) since the date of such financial
statement, except property sold or otherwise disposed of in the ordinary course
of business, the property of any Subsidiaries that are sold through an asset
sale or otherwise disposed of and the return of any leased property upon the
termination of any lease subsequent to such date; and all such property is free
of any Lien except Permitted Liens. To the Borrower's knowledge, all owned and
leased buildings and equipment of the Borrower used in the Borrower's business
are in good operating condition, repair and working order, except for ordinary
wear and tear and insured losses, and, to the Borrower's knowledge, conform to
all applicable laws, ordinances and regulations the violation of which would
have a Material Adverse Effect. To the Borrower's knowledge, the Borrower
possesses adequate trademarks, trade names, copyrights, patents, service marks
and licenses, or rights thereto, for the present and planned future conduct of
its business substantially as now conducted, without any known conflict with the
rights of others which would result in a Material Adverse Effect.
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6.3 Corporate Existence; Compliance with Law. Each of the Borrower and its
Subsidiaries (a) is duly incorporated, validly existing and in good standing (or
similar concept under applicable law, including, without limitation, the concept
of active status under the laws of the State of Wisconsin) under the laws of the
jurisdiction of its incorporation, (b) has the corporate power and authority and
the legal right to own and operate all its material property, to lease the
material property it operates as lessee and to conduct the business in which it
is currently engaged, (c) is duly qualified as a foreign limited liability
company or corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification and (d) is in compliance with all
Requirements of Law; except to the extent that the failure to comply with any of
(a) through (d) would not, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
6.4 Corporate Power; Authorization; Enforceable Obligations. Each of the
Borrower and the other Credit Parties has full power and authority and the legal
right to make, deliver and perform the Credit Documents to which it is party and
has taken all necessary limited liability company or corporate action to
authorize the execution, delivery and performance by it of the Credit Documents
to which it is party. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or with the execution,
delivery or performance of any Credit Document by the Borrower or the other
Credit Parties (other than those which have been obtained or which the failure
to obtain would not, in the aggregate, have a Material Adverse Effect) or with
the validity or enforceability of any Credit Document against the Borrower or
the Guarantors. Each Credit Document to which it is a party has been duly
executed and delivered on behalf of the Borrower or the other Credit Parties, as
the case may be. Each Credit Document to which it is a party constitutes a
legal, valid and binding obligation of the Borrower or the Guarantors, as the
case may be, enforceable against the Borrower or the other Credit Parties, as
the case may be, in accordance with its terms.
6.5 No Legal Bar; No Default. The execution, delivery and performance of
the Credit Documents, the borrowings thereunder and the use of the proceeds of
the Loans will not violate any Requirement of Law the violation of which would
reasonably be expected to have a Material Adverse Effect or any Contractual
Obligation of the Borrower or its Subsidiaries the violation of which would
reasonably be expected to have a Material Adverse Effect (except those as to
which waivers or consents have been obtained), and will not result in, or
require, the creation or imposition of any Lien (other than Permitted Liens) on
any of its or their respective properties or revenues pursuant to any
Requirement of Law or Contractual Obligation. Neither the Borrower nor any of
its Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which would reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
6.6 No Material Litigation. Except as set forth in the Audited Financial
Statements, no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Borrower and the other Credit Parties, threatened by or against the Borrower or
any of its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to the Credit Documents or any Loan or any of the
transactions
38
contemplated hereby, or (b) which, if adversely determined, would
reasonably be expected to (i) cause an adverse financial effect on the Borrower
or any of its Subsidiaries in excess of $20,000,000 or (ii) have a Material
Adverse Effect.
6.7 Investment Company Act. Neither the Borrower nor any of the other
Credit Parties is an "investment company", or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
6.8 Federal Regulations. No part of the proceeds of any Loan hereunder
will be used directly or indirectly for any purpose which violates, or which
would be inconsistent with, the provisions of Regulation T, U or X of the Board
of Governors of the Federal Reserve System as now and from time to time
hereafter in effect. The Borrower and its Subsidiaries taken as a group do not
own "margin stock" except margin stock which is a Permitted Investment, but only
to the extent otherwise permitted by this Agreement.
6.9 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" within the meaning of Section 412 of the Code (or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code, except to the extent that any such occurrence or failure to comply
would not reasonably be expected to have a Material Adverse Effect. No
termination of a Single Employer Plan has occurred resulting in any liability
that has remained underfunded, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period which would reasonably be expected to have
a Material Adverse Effect. The present value of all accrued benefits under each
Single Employer Plan (based on those assumptions used to fund such Plans) did
not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by an amount which, as determined in
accordance with GAAP, would reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any Commonly Controlled Entity is currently
subject to any liability for a complete or partial withdrawal from a
Multiemployer Plan which would reasonably be expected to have a Material Adverse
Effect. For purposes of this Section 6.9 only, the parties hereto agree that
"Material Adverse Effect" shall include any event referred to in this Section
6.9 which would or could be reasonably expected to cause a reduction in
Consolidated Net Worth of ten percent (10%) or more.
6.10 Environmental Matters. Except as set forth in Schedule 6.10 and except
to the extent that all of the following, in the aggregate, would not reasonably
be expected to have a Material Adverse Effect:
(a) To the knowledge of the Borrower and the other Credit Parties, the
facilities and properties owned, leased or operated by the Borrower or any
of its Subsidiaries (the "Properties") do not contain any Materials of
Environmental Concern in amounts or concentrations which (i) constitute a
violation of, or (ii) could give rise to liability under, any Environmental
Law.
(b) To the knowledge of the Borrower and the other Credit Parties, the
Properties and all operations at the Properties are in compliance, and have
in the last five years
39
been in compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Borrower or any of its
Subsidiaries (the "Business").
(c) Neither the Borrower nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business,
nor do the Borrower nor the other Credit Parties have knowledge or reason
to believe that any such notice will be received or is being threatened.
(d) To the knowledge of the Borrower and the other Credit Parties,
Materials of Environmental Concern have not been transported or disposed of
from the Properties in violation of, or in a manner or to a location which
could give rise to liability under any Environmental Law, nor have any
Materials of Environmental Concern been generated, treated, stored or
disposed of at, on or under any of the Properties in violation of, or in a
manner that could give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower and the other Credit Parties,
threatened, under any Environmental Law to which the Borrower or any
Subsidiary is or will be named as a party with respect to the Properties or
the Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect
to the Properties or the Business.
(f) To the knowledge of the Borrower and the other Credit Parties,
there has been no unremediated release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of the Borrower or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could give rise to liability under
Environmental Laws.
6.11 Use of Proceeds. The Loans hereunder may be used for repayment in full
on the Closing Date of all loans and other obligations outstanding under the
Existing Credit Agreement and for working capital and other general corporate
purposes not prohibited by this Credit Agreement, but expressly including
(subject to the restrictions contained in Sections 8.4, 8.5 and 8.10, the
Recapitalization, the purchase of some or all of the equity or assets of other
businesses, and the issuance of Dividends.
6.12 Subsidiaries. Set forth on Schedule 6.12 is a complete and accurate
list of all Subsidiaries of the Borrower. The outstanding capital stock and
other equity interests of all such Subsidiaries is validly issued, fully paid
and nonassessable (except as otherwise required by statute) and is owned, free
and clear of all Liens.
6.13 Taxes. Except with respect to a $2.1 million liability for employment
taxes as set forth under "Management's Discussion and Analysis of Financial
Condition and Results of
40
Operation - Other" on page 82 of Amendment No. 3 to Form S-4 Registration
Statement (Registration No. 333-105209) under the Securities Act of 1933 filed
by the Borrower on July 24, 2003 with the Securities and Exchange Commission, to
the knowledge of the Borrower and the other Credit Parties, each of the Borrower
and its Subsidiaries has filed, or caused to be filed, all material tax returns
(federal, state, local and foreign) required to be filed and paid all taxes
shown thereon to be due (including interest and penalties), except for such
taxes (i) which are not yet delinquent or (ii) as are being contested in good
faith and by proper proceedings, and against which adequate reserves are being
maintained in accordance with GAAP. The Borrower is not aware of any proposed
material tax assessments against it or any of its Subsidiaries. The most recent
completed audit of the Borrower's federal income tax returns was for the
Borrower's income tax year ending December 31, 1996, and all taxes shown by such
returns (together with any adjustments arising out of such audit, if any) have
been paid.
6.14 Solvency. The Borrower, individually, and the Borrower and its
Subsidiaries, collectively, are and, after execution of this Credit Agreement on
the Execution Date and after giving effect to the Indebtedness and Guarantee
Obligations incurred hereunder on and after the Closing Date, will be Solvent.
6.15 Accuracy of Information. All information furnished by the Borrower to
the Lenders is correct and complete in all material respects as of the date
furnished and does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make such information not misleading.
6.16 Amendments to Schedule 6.12. To the extent otherwise permitted by this
Agreement, the Borrower may, from time to time, amend Schedule 6.12 by
delivering (effective upon receipt) to the Agent and each Lender a copy of such
amended Schedule 6.12 which shall (i) be dated the date of delivery, (ii) be
certified by a duly authorized officer of the Borrower as true, complete and
correct as of such date as delivered in replacement for the Schedule 6.12
previously in effect, and (iii) show in reasonable detail (by blacklining or
other appropriate graphic means) the changes from the predecessor Schedule 6.12.
6.17 Recapitalization. Steps 1, 2 and 3 of the Recapitalization were
consummated as of the Closing Date as set forth in Schedule 1.1(a). Step 4 of
the Recapitalization will be consummated as set forth in Schedule 1.1(a) on or
before January 31, 2004, and thereafter the Recapitalization will be fully
consummated as set forth in Schedule 1.1(a). Not less than five Business Days
prior to the purchase of Class B Shares pursuant to Step 4 of the
Recapitalization, the Borrower will deliver to the Agent a certificate of an
authorized financial officer of the Borrower containing pro forma calculations
demonstrating the Borrower's compliance with the financial covenants contained
in Section 7.9 hereof as of (X) the end of the Borrower's most recently
completed fiscal quarter, after giving effect to the consummation of Step 4 of
the Recapitalization as if such transaction had been completed on or before the
end of the most recently completed fiscal quarter (including the use of
financial information for the fourth fiscal quarter, if applicable, whether or
not the Borrower shall have delivered, as of the date of such certificate, the
financial information required pursuant to Section 7.1) and (Y) the end of the
Borrower's then-current fiscal quarter, after giving effect to such transaction
as if it had been completed on the projected consummation date of Step 4 of the
Recapitalization, using financial
41
projections prepared by the Borrower in good faith based upon reasonable
assumptions which are set forth in such certificate or otherwise provided in
writing to the Agent.
ARTICLE 7
AFFIRMATIVE COVENANTS
For so long as this Credit Agreement is in effect and until the
Commitments have terminated, no Note remains outstanding and unpaid and the
Credit Party Obligations, together with interest, Fees and all other amounts
owing to the Agent or any Lender hereunder, are paid in full, the Borrower
shall, and in the case of subsections 7.3, 7.4, 7.5, 7.6 and 7.8 shall cause
each of its Subsidiaries, to:
7.1 Annual Financial Statement. Furnish to the Agent within 90 days after
the end of each fiscal year of the Borrower a copy for each Lender of a balance
sheet of the Borrower as of the close of such fiscal year and related statements
of income, retained earnings and cash flows for such year, setting forth in each
case in comparative form corresponding figures from the preceding annual audit,
prepared in accordance with GAAP applied on a consistent basis, audited by a
nationally recognized firm of independent certified public accountants selected
by the Borrower, and accompanied by an unqualified opinion thereon by such
accountants to the effect that such financial statements present fairly, in all
material respects, the financial position of the Borrower and all Consolidated
Subsidiaries as of the end of such fiscal year, and the results of their
operations and their cash flows for such fiscal year, in accordance with GAAP,
and that such audit was conducted in accordance with generally accepted auditing
practices. Each such annual statement shall be accompanied by a certificate of
an authorized financial officer of the Borrower containing the calculations
demonstrating the Borrower's compliance or noncompliance with the financial
covenants contained in Section 7.9 hereof. The Borrower will furnish to the
Agent within 90 days after the end of each fiscal year of the Borrower a copy
for each Lender of a statement of income, including statements of revenues and
expenses for each of the Borrower's business segments and corporate charges. All
such financial statements, and the financial statements referred to in Section
7.2 hereof, except as provided herein, shall be furnished in consolidated form
for the Borrower and all Consolidated Subsidiaries which it may at the time
have.
7.2 Interim Financial Statements.
(a) Furnish to the Agent within 45 days after the end of the first
three fiscal quarters of each fiscal year of the Borrower, a copy for each
Lender of the Borrower's 10-Q, prepared in the manner set forth in Section
7.1 hereof for the annual statements, certified to be accurate and complete
by an authorized financial officer of the Borrower, subject to audit,
footnotes and normal year-end adjustments, and accompanied by the
certificate of such officer (i) to the effect that there exists no Default
or Event of Default or, if any Default or Event of Default exists,
specifying the nature thereof, the period of existence thereof and what
action the Borrower proposes to take with respect thereto, and (ii)
containing the calculations demonstrating the Borrower's compliance or
noncompliance with the financial covenants contained in Section 7.9 hereof;
provided, however, in the event the Borrower's 10-Q is not filed
42
within such 45 day period, the Borrower shall furnish to the Agent and
Lenders within such 45 day period a balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of each such period and related
statements of income including a statement of revenues and expenses for
each of the Borrower's business segments and corporate charges,
shareholders' equity and cash flows for the period from the beginning of
the fiscal year to the end of such quarter and month, prepared and
certified as set forth above.
(b) Furnish to the Agent, (i) contemporaneously with the filing or
mailing thereof, copies for each Lender of all material of a financial
nature filed with the Securities Exchange Commission or sent to the
shareholders of the Borrower, and (ii) such other financial information as
any Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, in
accordance with industry practice (subject, where applicable, to specified grace
periods) all its material obligations of whatever nature and any additional
costs that are imposed as a result of any failure to so pay, discharge or
otherwise satisfy such obligations (including, without limitation, obligations
to pay taxes), except when the amount or validity of such obligations and costs
is currently being contested in good faith by appropriate proceedings and
reserves, if applicable, in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be.
7.4 Conduct of Business and Maintenance of Existence. Except as otherwise
permitted by Sections 8.4 and 8.5, continue to engage in business of the same
general type as now conducted by it on the date hereof and preserve, renew and
keep in full force and effect its corporate existence and take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its business; comply with all Contractual Obligations
and Requirements of Law applicable to it except to the extent that failure to
comply therewith would not, in the aggregate, have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all material property useful
and necessary in its business in good working order and condition (ordinary wear
and tear and insured losses excepted); maintain with financially sound and
reputable insurance companies insurance (including insurance against claims and
liabilities arising out of the manufacture or distribution of any products or
the provision of any services) with respect to its properties and businesses in
at least such amounts and against at least such risks as are usually insured
against in the same general area by companies engaged in the same or a similar
business; and furnish to the Agent, on the Closing Date and not less often than
annually thereafter, and in any event promptly upon any material change thereto,
full information as to the insurance carried.
7.6 Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its businesses and activities; and permit,
during regular business hours and upon reasonable notice by the Agent, the Agent
and, after the occurrence and during the continuance of a Default or an Event of
Default, any of the Lenders to visit and inspect any of its properties and
examine and make
43
abstracts from any of its books and records (other than materials protected by
the attorney-client privilege and materials which the Borrower may not disclose
without violation of a confidentiality obligation binding upon it) at any
reasonable time and as often as may reasonably be desired, and to discuss the
business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public accountants.
7.7 Notices. Give notice to the Agent (which shall promptly transmit such
notice to each Lender) of:
(a) immediately (and in any event within two (2) Business Days) after
the Borrower knows or has reason to know thereof, the occurrence of any
Default or Event of Default;
(b) promptly, any default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries which would
reasonably be expected to have a Material Adverse Effect;
(c) promptly, any litigation, or any investigation or proceeding
(including, without limitation, any environmental proceeding) known to the
Borrower, affecting the Borrower or any of its Subsidiaries which, if
adversely determined, would reasonably be expected to have a Material
Adverse Effect;
(d) as soon as possible and in any event within 30 days after the
Borrower knows or has reason to know thereof: (i) the occurrence or
expected occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action by
the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan; and
(e) promptly, any other development or event which would reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
responsible officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
7.8 Environmental Laws.
(a) Comply in all material respects with, and ensure compliance in all
material respects by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply in all material
respects with and maintain, and ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws except to the
44
extent that, with respect to all of the above, failure to do so would not
reasonably be expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested
in good faith by appropriate proceedings and the pendency of such
proceedings would not reasonably be expected to have a Material Adverse
Effect; and
(c) Defend, indemnify and hold harmless the Agent and the Lenders, and
their respective employees, agents, officers and directors, from and
against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known
or unknown, contingent or otherwise, arising out of, or in any way relating
to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or the Properties, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without limitation,
reasonable attorneys' fees and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification
therefore. The agreements in this paragraph shall survive repayment of the
Notes and all other amounts payable hereunder.
7.9 Financial Covenants.
(a) Consolidated Funded Debt Ratio. There shall be maintained as of
the end of each fiscal quarter, as determined for the four fiscal quarter
period preceding the date of determination, a Consolidated Funded Debt
Ratio of not greater than 3.0:1.0.
(b) Fixed Charge Coverage Ratio. There shall be maintained as of the
end of each fiscal quarter, as determined for the four fiscal quarter
period preceding the date of determination, a Fixed Charge Coverage Ratio
of not less than 1.75:1.0.
(c) Consolidated Tangible Net Worth. Consolidated Tangible Net Worth
shall not be less, as of the end of any fiscal quarter of the Borrower,
than $200,000,000.
(d) Consolidated Rent Expense. Consolidated Rent Expense shall not
exceed $40,000,000 during any fiscal year of the Borrower.
(e) Capital Expenditures. Capital Expenditures shall not exceed
$75,000,000 during any fiscal year of the Borrower.
7.10 Additional Subsidiary Guarantors.
(a) If a Subsidiary of the Borrower which is not a Guarantor hereunder
(a "Non-Guarantor Subsidiary") shall at any time constitute more than
either
45
(i) 10% of Consolidated Total Assets, or
(ii) 10% of Consolidated EBITDA,
then the Borrower will promptly notify the Agent thereof, and promptly cause
such Non-Guarantor Subsidiary to become a Guarantor hereunder by way of
execution of a Joinder Agreement.
(b) In addition to the requirements set forth in the foregoing clause
(a), if the Non-Guarantor Subsidiaries shall, as a group, at any time
constitute in the aggregate more than either
(i) 10% of Consolidated Total Assets, or
(ii) 10% of Consolidated EBITDA,
(collectively, the "Threshold Requirement"), then the Borrower will promptly
notify the Agent thereof, and promptly cause one or more of the Non-Guarantor
Subsidiaries to become a Guarantor hereunder by way of execution of a Joinder
Agreement, such that immediately after the joinder of such Subsidiaries as
Guarantors hereunder, the remaining Non-Guarantor Subsidiaries shall not, as a
group, exceed the Threshold Requirement.
7.11 Recapitalization. Consummate Steps 1, 2 and 3 of the Recapitalization
as set forth in Schedule 1.1(a) on or before the Closing Date and consummate
Step 4 of the Recapitalization as set forth in Schedule 1.1(a) on or before
January 31, 2004.
ARTICLE 8
NEGATIVE COVENANTS
For so long as this Credit Agreement is in effect and until the Revolving
Commitments have terminated, no Note remains outstanding and unpaid and the
Credit Party Obligations, together with interest, Fees and all other amounts
owing to the Agent or any Lender hereunder, are paid in full, the Borrower shall
not, and shall not permit any of its Subsidiaries, to:
8.1 Indebtedness. Contract, create, incur, assume or permit to exist any
Indebtedness; provided, however, so long as no Event of Default exists or would
result therefrom, the Borrower and its Subsidiaries may incur unsecured
Indebtedness and Indebtedness secured by Permitted Liens.
8.2 Liens. Contract, create, incur, assume or permit to exist any Lien
with respect to any of its property or assets of any kind (whether real or
personal, tangible or intangible), whether now owned or hereafter acquired,
except for Permitted Liens.
8.3 Nature of Business. Except as otherwise permitted by Section 8.4,
alter the character of its business in any material respect from that conducted
as of the Closing Date.
46
8.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
(a) dissolve, liquidate or wind up its affairs, sell, transfer, lease
or otherwise dispose of any substantial part of its property or assets
outside of the ordinary course of business or agree to do so at a future
time except the following, without duplication, shall be expressly
permitted:
(i) Specified Sales;
(ii) the sale, lease or transfer of property or assets by a
Credit Party to a domestic Credit Party;
As used herein, "substantial part" shall mean property and assets, the book
value of which, when added to the book value of all other assets sold, leased or
otherwise disposed of by the Borrower and its Subsidiaries (other than in the
ordinary course of business), shall in any fiscal year exceed 15% of
Consolidated Net Worth, in each case determined as of the end of the immediately
preceding fiscal year; or
(b) purchase, lease or otherwise acquire (in a single transaction or a
series of related transactions) all or any substantial part of the property
or assets of any Person other than purchases or other acquisitions of
inventory, leases, materials, property and equipment in the ordinary course
of business, (except as otherwise limited or prohibited herein), or enter
into any transaction of merger or consolidation, except for (i) investments
or acquisitions permitted pursuant to Section 8.5, (ii) the merger or
consolidation of the Borrower with or into another Credit Party, provided
that in any such case the Borrower shall be the surviving entity, (iii) the
merger or consolidation of any wholly-owned Subsidiary with or into any
other wholly-owned Subsidiary, (iv) the merger or consolidation of any
wholly-owned Subsidiary with or into the Borrower provided that in any such
case the Borrower shall be the surviving entity, and (v) so long as no
Event of Default exists or would result therefrom, purchases of
substantially all of the assets or capital stock of any Person, whether or
not such transaction involves a merger or consolidation, provided that in
any such case the Borrower shall have delivered, not less than five
Business Days prior to the consummation of such purchase of assets or
capital stock, to the Agent and each of the Lenders a certificate of an
authorized financial officer of the Borrower containing pro forma
calculations demonstrating the Borrower's compliance with the financial
covenants contained in Section 7.9 hereof as of (X) the end of the
Borrower's most recently completed fiscal quarter, after giving effect to
such transaction as if it had been completed on or before the end of the
most recently completed fiscal quarter (including the use of financial
information for the fourth fiscal quarter, if applicable, whether or not
the Borrower shall have delivered, as of the date of such certificate, the
financial information required pursuant to Section 7.1) and (Y) the end of
the Borrower's then-current fiscal quarter, after giving effect to such
transaction as if it had been completed on the projected closing date for
such purchase, using financial projections prepared by the Borrower in good
faith based upon reasonable assumptions which are set forth in such
certificate or otherwise provided in writing to the Agent and the Lenders;
provided further that the foregoing requirement shall only apply if the
aggregate cash and non-cash consideration for any such purchase exceeds
$10,000,000.
47
8.5 Advances, Investments and Loans. The Borrower will not, nor will it
permit any Subsidiary to, lend money or extend credit or make advances to any
Person, or purchase or acquire any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any Person except for
Permitted Investments.
8.6 Guarantee Obligations. Contract, create, incur, assume or permit to
exist any Guarantee Obligations, except Permitted Guarantee Obligations.
8.7 Transactions with Affiliates. Except pursuant to the May 2003
Shareholders Agreement or as permitted in subsections (iii) and (ix) of the
definition of Permitted Investments, in connection with the Recapitalization, or
as set forth in the Audited Financial Statements, enter into any transaction or
series of transactions, whether or not in the ordinary course of business, with
any officer, director, shareholder or Affiliate (other than a Credit Party)
other than on terms and conditions substantially as favorable as would be
obtainable in a comparable arm's-length transaction with a Person other than an
officer, director, shareholder or Affiliate (other than a Credit Party).
8.8 Ownership of Subsidiaries. Create, form or acquire a Subsidiary,
unless any such Subsidiary shall become an Additional Credit Party, if required,
in accordance with the provisions of Section 7.10.
8.9 Fiscal Year. Change its fiscal year, except the Borrower may change
its fiscal year once after the Execution Date to a fiscal year that has four
fiscal quarters of 13 weeks each, and a fiscal year-end approximately at the end
of the calendar year.
8.10 Dividends. Make any payment, distribution or Dividend (other than a
dividend or distribution payable solely in stock or equity interest of the
Person making the dividend or distribution) on or any payment on account of the
purchase, redemption or retirement of, or any other distribution on, any
partnership interest, limited liability company interest, share of any class of
stock or other ownership interest in such Person (collectively,
"Distributions"); provided, notwithstanding the foregoing, so long as no Event
of Default exists or would result therefrom, the Borrower and its Subsidiaries
may make Distributions.
ARTICLE 9
EVENTS OF DEFAULT
Upon the occurrence of any of the following events (each an "Event of
Default"):
(a) The Borrower shall fail to pay any principal on any Note when due
in accordance with the terms thereof or hereof; or the Borrower shall fail
to pay any interest on any Note or any Fee or other amount payable
hereunder when due in accordance with the terms thereof or hereof and such
failure shall continue unremedied for five (5) Business Days or any
Guarantor shall fail to pay on the Guaranty in respect of any of the
foregoing or in respect of any other Guarantee Obligations thereunder; or
48
(b) Any representation or warranty made or deemed made by the Borrower
or other Credit Party herein, or in any of the other Credit Documents or
which is contained in any certificate, document or financial or other
statement furnished by the Borrower or other Credit Party at any time under
or in connection with this Agreement shall prove to have been incorrect,
false or misleading in any material respect on or as of the date made or
deemed made; or
(c) The Borrower shall (i) default in the due performance or
observance of Section 7.7(a), 7.9 or Section 8, (ii) default in the
observance or performance of Section 7.1 or 7.2 and such default shall
continue unremedied for a period of 10 days or more after written notice
thereof from the Agent or the Required Lenders, or (iii) default in the
observance or performance of any other term, covenant or agreement
contained herein, or in any of the other Credit Documents (other than as
described in subsections 9(a), 9(b), 9(c)(i) or 9(c)(ii) above), and such
default shall continue unremedied for a period of 30 days or more after
written notice thereof from the Agent or the Required Lenders; or
(d) The Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the
Notes) in a principal amount outstanding of at least $5,000,000 in the
aggregate for the Borrower and its Subsidiaries or in the payment of any
matured Guarantee Obligation in a principal amount outstanding of at least
$5,000,000 in the aggregate for the Borrower and its Subsidiaries beyond
the period of grace (not to exceed 30 days), if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee
Obligation was created and such Indebtedness or Guarantee Obligation has
matured by its terms or is accelerated or is overtly threatened to be
accelerated (except any such Indebtedness or Guarantee Obligations which
the Borrower and its Subsidiaries are disputing in good faith and for which
they have established adequate reserves or Indebtedness owing by one
Subsidiary to the Borrower or another Subsidiary that is not being
accelerated and for which no enforcement or collection action has been
commenced); or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness in a principal
amount outstanding of at least $5,000,000 in the aggregate for the Borrower
and its Subsidiaries or Guarantee Obligation in a principal amount
outstanding of at least $5,000,000 in the aggregate for the Borrower and
its Subsidiaries or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to cause,
or the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries shall cause or
overtly threaten to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; or
(e) (i) The Borrower or any other Credit Party shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or the Borrower or any other Credit Party shall make a
general assignment for
49
the benefit of its creditors; or (ii) there shall be commenced against the
Borrower or any other Credit Party any case, proceeding or other action of
a nature referred to in clause (i) above which (X) results in the entry of
an order for relief or any such adjudication or appointment or (Y) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Borrower or any other Credit Party any
case, proceeding other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part
of its assets which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the Borrower or any
other Credit Party shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) the Borrower or any other
Credit Party shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(f) One or more judgments or decrees shall be entered against the
Borrower or any other Credit Party and such judgments or decrees shall not
have been paid and satisfied, vacated, discharged, stayed or bonded pending
appeal within 60 days from the entry thereof and involve in the aggregate a
liability (to the extent not paid when due or covered by insurance) of
$1,000,000 or more; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Borrower, any of its
Subsidiaries or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of,
any Multiemployer Plan or (vi) any other similar event or condition shall
occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(h) any Person or group of Persons which is unacceptable to the
Required Lenders obtains control of more than 50% of the issued and
outstanding voting stock of the Borrower; or
(i) The Guaranty or any provision thereof shall cease to be in full
force and effect or any Credit Party or any Person acting by or on behalf
of any Credit Party shall deny or disaffirm any Credit Party's obligations
under the Guaranty; provided, however, if the Borrower (i) sells or
otherwise disposes of all of the capital stock of a Credit Party or (ii)
sells all or substantially all of the assets of a Credit Party and
subsequently merges or dissolves such Credit
50
Party out of existence, in either case in compliance with the terms of this
Agreement, the Guaranty of such Credit Party shall terminate and such
termination shall not be deemed an Event of Default; or
(j) Any other Credit Document shall fail to be in full force and
effect;
then, and in any such event, (A) if such event is an Event of Default
specified in paragraph (e) above, automatically the Revolving Commitments
shall immediately terminate and the Loans (with accrued interest thereon),
and all other amounts under the Credit Documents shall immediately become
due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the written
consent of the Required Lenders, the Agent may, or upon the written request
of the Required Lenders, the Agent shall, by notice to the Borrower declare
the Revolving Commitments to be terminated forthwith, whereupon the
Revolving Commitments shall immediately terminate; and (ii) with the
written consent of the Required Lenders the Agent may, or upon the written
request of the Required Lenders, the Agent shall, by notice of default to
the Borrower, declare the Loans (with accrued interest thereon) and all
other amounts owing under this Agreement and the Credit Documents to be due
and payable forthwith, whereupon the same shall immediately become due and
payable. Except as expressly provided above in this Section 9, presentment,
demand, protest and all other notices of any kind are hereby expressly
waived.
ARTICLE 10
AGENCY PROVISIONS
10.1 Appointment. Each Lender hereby designates and appoints U.S. Bank
National Association as Agent hereunder of such Lender to act as specified
herein and in the other Credit Documents, and each such Lender hereby authorizes
the Agent as the agent for such Lender, to take such action on its behalf under
the provisions of this Credit Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated by the
terms hereof and of the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere herein and in the other Credit Documents, the Agent shall not
have any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Credit Agreement or any of the other Credit Documents, or
shall otherwise exist against the Agent. The provisions of this Section are
solely for the benefit of the Agent and the Lenders and none of the Credit
Parties shall have any rights as a third party beneficiary of the provisions
hereof. In performing its functions and duties under this Credit Agreement and
the other Credit Documents, the Agent shall act solely as agent of the Lenders
and does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for the Borrower or any other Credit
Party.
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10.2 Delegation of Duties. The Agent may execute any of its duties
hereunder or under the other Credit Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
10.3 Exculpatory Provisions. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection herewith or in connection with any of the other Credit
Documents except for its or such Person's own gross negligence or willful
misconduct, or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any of the Credit
Parties contained herein or in any of the other Credit Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection herewith or in connection with
the other Credit Documents, or enforceability or sufficiency herefor of any of
the other Credit Documents, or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Agent shall not be responsible to any
Lender for the effectiveness, genuineness, validity, enforceability,
collectability or sufficiency of this Credit Agreement, or any of the other
Credit Documents or for any representations, warranties, recitals or statements
made herein or therein or made by the Borrower or any Credit Party in any
written or oral statement or in any financial or other statements, instruments,
reports, certificates or any other documents in connection herewith or therewith
furnished or made by the Agent to the Lenders or by or on behalf of the Credit
Parties to the Agent or any Lender or be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or of the existence or possible existence of any Default
or Event of Default or to inspect the properties, books or records of the Credit
Parties.
10.4 Reliance on Communications. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Agent and any of the Lenders, independent
accountants and other experts selected by the Agent with reasonable care). The
Agent may deem and treat the Lenders as the owner of their respective interests
hereunder for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Agent in accordance with Section
11.6(d). The Agent shall be fully justified in failing or refusing to take any
action under this Credit Agreement or under any of the other Credit Documents
unless it shall first receive such advice or concurrence of the Required
Lenders, or all Lenders, as the case may be, as it deems appropriate. The Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder or under any of the other Credit Documents in accordance with a
request of the Required Lenders (or to the extent specifically provided in
Section 11.1, all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
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10.5 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder (other
than the failure by the Borrower to pay any principal or interest on any Note
when due in accordance with the terms thereof or hereof) unless the Agent has
received notice from a Lender or a Credit Party referring to the Credit
Document, stating that a Default or Event of Default exists, and specifying the
particulars thereof. In the event that the Agent receives such a notice or the
Borrower fails to pay any principal or interest on any Note when due, the Agent
shall give prompt notice thereof to the Lenders. The Agent shall take such
action with respect to such Default or Event of Default as shall be directed by
the Required Lenders, otherwise than an action that the Agent reasonably
believes would be a violation of law or otherwise prohibited by the Credit
Documents.
10.6 Non-Reliance on Agent and Other Lenders. Each Lender expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agent or any Affiliate thereof
hereinafter taken, including any review of the affairs of the Borrower, shall be
deemed to constitute any representation or warranty by the Agent to any Lender.
Each Lender represents to the Agent that it has, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Borrower and made its
own decision to make its Loans hereunder and enter into this Credit Agreement.
Each Lender also represents that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Credit Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, assets, property, financial or other conditions, prospects or
creditworthiness of the Borrower which may come into the possession of the Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
10.7 Indemnification. The Lenders agree to indemnify the Agent in its
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Commitment Percentages (or if the Revolving Commitments have expired
or been terminated, in accordance with the respective principal amounts of
outstanding Loans of the Lenders), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the termination of this
Credit Agreement) be imposed on, incurred by or asserted against the Agent in
its capacity as such in any way relating to or arising out of this Credit
Agreement or the other Credit Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Agent under or in connection with any of
the foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages,
53
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or willful misconduct of the Agent. If any indemnity
furnished to the Agent for any purpose shall, in the reasonable opinion of the
Agent, be insufficient or become impaired, the Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished.
10.8 Agent in its Individual Capacity. The Agent and its Affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with the Borrower or any other Credit Party as though the Agent were not Agent
hereunder. With respect to its Loans, the Agent shall have the same rights,
obligations and powers under this Credit Agreement as any Lender and may
exercise the same as though they were not Agent, and the terms "Lender" and
"Lenders" shall include the Agent in its individual capacity.
10.9 Successor Agent. The Agent may, at any time, resign upon 20 days'
written notice to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent (which shall
be a Lender) with the prior written consent of the Borrower, which consent shall
not be unreasonably withheld. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30
days after the notice of resignation, as appropriate, then the retiring Agent
shall select a successor Agent provided such successor is a Lender hereunder or
a commercial bank organized under the laws of the United States of America or of
any State thereof and has a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations as Agent,
as appropriate, under this Credit Agreement and the other Credit Documents and
the provisions of this Section 10.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Credit
Agreement.
10.10 Lead Arranger, Co-Syndication Agents, Co-Documentation Agents, Senior
Managing Agent and Managing Agents. The Lenders identified on the title page to
this Agreement as "Lead Arranger," "Co-Syndication Agents," "Co-Documentation
Agents," "Senior Managing Agent" and "Managing Agents" shall have no right,
power, obligation or liability other than those applicable to all Lenders as
such. Without limiting the foregoing, none of the Lenders so identified shall
have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on any Lender so
identified in deciding to enter into this Agreement or in taking or omitting any
action hereunder.
ARTICLE 11
MISCELLANEOUS
11.1 Amendments, Waivers. Neither this Credit Agreement, nor any of the
Notes, nor any of the other Credit Documents, nor any terms hereof or thereof
may be amended, supplemented, waived or modified except in accordance with the
provisions of this subsection. The Required Lenders may, or, with the written
consent of the Required Lenders, the Agent may,
54
from time to time, (a) enter into with the Borrower written amendments,
supplements or modifications hereto and to the other Credit Documents for the
purpose of adding, amending or deleting any provisions of this Credit Agreement
or the other Credit Documents or (b) waive, on such terms and conditions as the
Required Lenders may specify in such instrument, any of the requirements of this
Credit Agreement or the other Credit Documents or any Default or Event of
Default and its consequences; provided, however, that no such waiver and no such
amendment, waiver, supplement, modification or release shall (i) reduce the
amount or extend the scheduled date of maturity of any Loan or Note or any
installment thereon, or reduce the stated rate of any interest or fee payable
hereunder (other than interest at the increased post-default rate) or extend the
scheduled date of any payment thereof or increase the amount or extend the
expiration date of any Lender's Revolving Commitment, in each case without the
written consent of each Lender directly affected thereby, or (ii) amend, modify
or waive any provision of this Section 11.1 or reduce the percentage specified
in the definition of Required Lenders, or consent to the assignment or transfer
by the Borrower of any of its rights and obligations under this Credit
Agreement, in each case without the written consent of all the Lenders, or (iii)
amend, modify or waive any provision of Section 10 without the written consent
of the then Agent, (iv) amend Section 3.12 or 7.10 without the written consent
of all Lenders, or (v) release the obligation of any Guarantor under the
Guaranty if such release would cause the Non-Guarantor Subsidiaries, as a group,
to exceed the Threshold Requirement. Any such waiver, any such amendment,
supplement or modification and any such release shall apply equally to each of
the Lenders and shall be binding upon the Borrower, the Lenders, the Agent and
all future holders of the Notes. In the case of any waiver, the Borrower, the
Lenders and the Agent shall be restored to their former position and rights
hereunder and under the outstanding Loans and Notes and other Credit Documents,
and any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
11.2 Notices.
(a) Except as otherwise provided in Section 2, all notices, requests
and demands to or upon the respective parties hereto to be effective shall
be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made (i) when
delivered by hand, (ii) when transmitted via telecopy (or other facsimile
device) on a Business Day between the hours of 8:30 A.M. and 5:00 P.M.
(Milwaukee, Wisconsin time) or on the following Business Day (if sent after
5:00 P.M. Milwaukee, Wisconsin time) to the number set out herein, (iii)
the day following the day on which the same has been delivered prepaid to a
reputable national overnight air courier service, or (iv) the third
Business Day following the day on which the same is sent by first class
mail, postage prepaid, in each case, addressed as follows in the case of
the Borrower and the Agent, and as set forth on Schedule 11.2 in the case
of the Lenders, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the Notes:
The Credit Parties: The Journal Company
000 Xxxx Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
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with a copy to:
Xxxxx & Lardner
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxxxxxx X. Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
The Agent: U.S. Bank National Association
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxx LLP
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) Notices and other communications to the Agent and the Lenders
hereunder may be delivered or furnished by electronic communications
pursuant to procedures approved by the Agent; provided that the foregoing
shall not apply to notices pursuant to Article 2 unless otherwise agreed by
the Agent and the applicable Lender. Any of the Agent or the Borrower may,
in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by
it; provided that approval of such procedures may be limited to particular
notices or communications.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Agent or any Lender, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
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11.4 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Credit Agreement and the Notes and the making of the Loans,
provided that all such representations and warranties shall terminate on the
date upon which the Revolving Commitments have been terminated and all amounts
owing hereunder and under any Notes have been paid in full.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the preparation and execution of, and any amendment,
supplement or modification to, the Credit Documents and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, together with the reasonable fees
and disbursements of counsel to the Agent, (b) to pay out-of-pocket expenses,
including attorneys' fees, incurred by a Lender in connection with the
negotiation, preparation and execution of the Credit Documents, not to exceed
$2,500 for each Lender, and reasonable expenses, including reasonable attorneys'
fees, in connection with any future amendments or modifications hereto, (c) to
pay or reimburse each Lender and the Agent for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Credit Agreement and any other Credit Documents, including, without
limitation, the reasonable fees and disbursements of counsel to the Agent and to
the Lenders (including reasonable allocated costs of in-house legal counsel),
(d) on demand, to pay, indemnify, and hold each Lender and the Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Credit
Documents and any such other documents, and (e) to pay, indemnify, and hold each
Lender and the Agent and their Affiliates, officers, directors, shareholders,
employees and agents harmless from and against, any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of the Credit
Documents and any such other documents and the use, or proposed use, of proceeds
of the Loans (all the foregoing, collectively, the "Indemnified Liabilities");
provided, however, that the Borrower shall not have any obligation hereunder to
the Agent or any Lender with respect to Indemnified Liabilities arising from (i)
the gross negligence or willful misconduct of the Agent or any such Lender, (ii)
legal proceedings commenced against or disputes among the Agent or any Lender by
any other Lender or its participants or the Agent, or (iii) the violation by the
Agent or any such Lender of an express provision of the Credit Documents, if so
determined by a final judgment of a court of competent jurisdiction. The
agreements in this Section 11.5 shall survive repayment of the Loans, Notes and
all other amounts payable hereunder.
11.6 Successors and Assigns; Participations; Purchasing Lenders.
(a) This Credit Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Agent, all future holders of the
Notes and their respective
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successors and assigns, except that the Borrower may not assign or transfer
any of its rights or obligations under this Credit Agreement or the other
Credit Documents without the prior written consent of each Lender and no
Lender may assign or transfer any of its rights or obligations under this
Credit Agreement or the other Credit Documents without the prior written
consent of the Borrower, except as otherwise permitted by this Section
11.6.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law and, so long as no Event of
Default has occurred and is continuing, with the consent of the Borrower if
the Participant (as defined below) is not an Affiliate of such Lender
(which consent shall not be unreasonably withheld), at any time sell to one
or more banks or other entities ("Participant" or "Participants")
participating interests in any Loan owing to such Lender, any Note held by
such Lender, any Revolving Commitment of such Lender, or any other interest
of such Lender hereunder, provided, however, that at all times such Lender
shall retain for its own account interests in Loans owing to such Lender in
an aggregate outstanding principal amount which, when added to the
aggregate outstanding principal amount of any interests in Loans sold by
such Lender to Participants who are Affiliates of such Lender, equals not
less than fifty percent (50%) of the aggregate principal amount of all such
Lender's outstanding Loans. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under
this Credit Agreement to the other parties to this Credit Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Note
for all purposes under this Credit Agreement, and the Borrower and the
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Credit
Agreement. No Lender shall transfer or grant any participation under which
the Participant shall have rights to approve any amendment to or waiver of
this Credit Agreement or any other Credit Document except to the extent
such amendment or waiver would (i) extend the scheduled maturity of any
Loan or Note or any installment thereon in which such Participant is
participating, or reduce the stated rate or extend the time of payment of
interest or Fees thereon except in connection with a waiver of interest at
the increased post-default rate) or reduce the principal amount thereof, or
increase the amount of the Participant's participation over the amount
thereof then in effect it being understood that a waiver of any Default or
Event of Default shall not constitute a change in the terms of such
participation, and that an increase in any Revolving Commitment or Loan
shall be permitted without consent of any Participant if the Participant's
participation is not increased as a result thereof, or (ii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Credit Agreement. In the case of any such participation, the
Participant shall not have any rights under this Credit Agreement or any of
the other Credit Documents (the Participant's rights against such Lender in
respect of such participation to be those set forth in the agreement
executed by such Lender in favor of the Participant relating thereto) and
all amounts payable by the Borrower hereunder shall be determined as if
such Lender had not sold such participation, provided that each Participant
shall be entitled to the benefits of Sections 3.6, 3.7, 3.8, 3.9 and 11.5
with respect to its participation in the Revolving Commitments and the
Loans outstanding from time to time; provided, that no Participant shall be
entitled to receive any greater amount pursuant to such Sections than the
transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
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(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell or assign
(i) to any Lender or any Affiliate thereof, except that any such sale or
assignment shall be made only with the consent of the Borrower if such sale
or assignment would increase any amount payable by the Borrower hereunder,
or (ii) to one or more additional banks or financial institutions
("Purchasing Lenders"), except that any such sale or assignment shall be
made only with the consent of the Agent and, so long as no Event of Default
has occurred and is continuing or at any time if any such sale or
assignment would increase any amount payable by the Borrower hereunder, the
consent of the Borrower: all or any part of its rights and obligations
under this Credit Agreement and the Notes in minimum amounts of $10,000,000
(or, if less, the entire amount of such Lender's obligations) if the
Purchasing Lender is not a Lender hereunder, or with no minimum amount if
the Purchasing Lender is a Lender hereunder, pursuant to a Commitment
Transfer Supplement, executed by such Purchasing Lender, such transferor
Lender (and, in the case of a Purchasing Lender that is not then a Lender
or an Affiliate thereof so long as no Event of Default has occurred and is
continuing, by the Borrower and the Agent), and delivered to the Agent for
its acceptance and recording in the Register (as defined below). Upon such
execution, delivery, acceptance and recording, from and after the Transfer
Effective Date specified in such Commitment Transfer Supplement, (x) the
Purchasing Lender thereunder shall be a party hereto and, to the extent
provided in such Commitment Transfer Supplement, have the rights and
obligations of a Lender hereunder with a Revolving Commitment as set forth
therein, and (y) the transferor Lender thereunder shall, to the extent
provided in such Commitment Transfer Supplement, be released from its
obligations under this Credit Agreement (and, in the case of a Commitment
Transfer Supplement covering all or the remaining portion of a transferor
Lender's rights and obligations under this Credit Agreement, such
transferor Lender shall cease to be a party hereto). Such Commitment
Transfer Supplement shall be deemed to amend this Credit Agreement to the
extent, and only to the extent, necessary to reflect the addition of such
Purchasing Lender and the resulting adjustment of Commitment Percentages
arising from the purchase by such Purchasing Lender of all or a portion of
the rights and obligations of such transferor Lender under this Credit
Agreement and the Notes. On or prior to the Transfer Effective Date
specified in such Commitment Transfer Supplement, the Borrower, at its own
expense, shall execute and deliver to the Agent in exchange for the Note
delivered to the Agent pursuant to such Commitment Transfer Supplement a
new Note to the order of such Purchasing Lender in an amount equal to the
Revolving Commitment assumed by it pursuant to such Commitment Transfer
Supplement and, unless the transferor Lender has not retained a Revolving
Commitment hereunder, a new Note to the order of the transferor Lender in
an amount equal to the Revolving Commitment retained by it hereunder.
Except for the expense of executing and delivering such new Note to the
Agent pursuant to this Section, the Borrower shall not be obligated to pay
any transfer fees, costs or expenses to the Agent or any Lender in
connection with any such transfer. Such new Note shall be dated the Closing
Date and shall otherwise be in the form of the Note replaced thereby. The
Note surrendered by the transferor Lender shall be returned by the Agent to
the Borrower marked "canceled."
(d) The Agent shall maintain at its address referred to in Section
11.2 a copy of each Commitment Transfer supplement delivered to it and a
register (the "Register") for the recordation of the names and addresses of
the Lenders and the Revolving Commitment of, and principal amount of the
Loans owing to, each Lender from time to time. The entries in the
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Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded therein for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed by a
transferor Lender and a Purchasing Lender and, in the case of a Purchasing
Lender that is not then a Lender (or an Affiliate thereof, by the Borrower
and the Agent) together with payment to the Agent by the transferor Lender
or the Purchasing Lender, (as agreed between them) of a registration and
processing fee of $3,500 for each Purchasing Lender listed in such
Commitment Transfer Supplement, and the Notes subject to such Commitment
Transfer Supplement, the Agent shall (i) accept such Commitment Transfer
Supplement, (ii) record the information contained therein in the Register
and (iii) give prompt notice of such acceptance and recordation to the
Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any Participant
or Purchasing Lender each, (a "Transferee") and any permitted prospective
Transferee any and all financial information in such Lender's possession
concerning the Borrower and its Affiliates which has been delivered to such
Lender by or on behalf of the Borrower pursuant to this Credit Agreement or
which has been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Credit Agreement.
(g) At the time of each assignment pursuant to this Section 11.6 to a
Person which is not already a Lender hereunder and which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code)
for Federal income tax purposes, the respective assignee Lender shall
provide to the Borrower and the Agent the appropriate Internal Revenue
Service Forms (and, if applicable, a U.S. Tax Compliance Certificate)
described in Section 3.9.
(h) Nothing herein shall prohibit any Lender from pledging or
assigning any of its rights under this Credit Agreement (including, without
limitation, any right to payment of principal and interest under any Note)
to any Federal Reserve Bank in accordance with applicable laws.
11.7 Set-off. In addition to any rights and remedies of the Lenders
provided by law (including, without limitation, other rights of set-off), each
Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon the occurrence and during the continuance of any Event of
Default, to setoff and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any Affiliate, branch or agency thereof to or for the
credit or the account of the Borrower, or any part thereof in such amounts as
such Lender may elect, against and on account of the obligations and liabilities
of the Borrower to such Lender hereunder and claims of every nature and
description of such Lender against the
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Borrower, in any currency, whether arising hereunder, under the Notes or under
any documents contemplated by or referred to herein or therein, as such Lender
may elect, whether or not such Lender has made any demand for payment. The
aforesaid right of set-off may be exercised by such Lender against the Borrower
or against any trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver or execution, judgment or attachment creditor of
the Borrower, or against anyone else claiming through or against the Borrower or
any such trustee in bankruptcy, debtor in possession, assignee for the benefit
of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the occurrence of any Event of Default. Each
Lender agrees promptly to notify the Borrower and the Agent after any such
set-off and application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application.
11.8 Confidentiality. The Agent and each Lender shall hold in confidence
any material nonpublic information delivered or made available to them by the
Borrower. Notwithstanding the foregoing, nothing herein shall prevent the Agent
or any Lender from disclosing any information delivered or made available to it
by the Borrower (a) to such Lender's Affiliates, the Agent or any Lender, (b)
upon the order of any court or administrative agency, (c) upon the request or
demand of any regulatory agency or authority, (d) which has been publicly
disclosed other than as a result of a disclosure by the Agent or any Lender
which is not permitted by this Agreement, (e) to the extent reasonably required
in connection with any litigation to which the Agent, any Lender, or any of
their respective Affiliates may be a party, along with the Borrower, any
Subsidiary or any of their respective Affiliates, (f) to the extent reasonably
required in connection with the exercise of any right or remedy under this
Agreement, (g) to such Agent's or Lender's legal counsel and financial
consultants and independent auditors, and (h) to any Transferee or permitted
prospective Transferee and such Transferee or permitted prospective Transferee
agrees in writing to be bound by the duty of confidentiality under this Section
to the same extent as if it were a Lender hereunder. Further, notwithstanding
anything in this Agreement to the contrary, any party hereto (and any employee,
representative or other agent of such party) may disclose to any Person, without
limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by this Agreement and all materials of any kind (including tax
opinions or other tax analyses) provided to it relating to such tax treatment
and tax structure.
11.9 Table of Contents and Section Headings. The table of contents and the
Section and subsection headings herein are intended for convenience only and
shall be ignored in construing this Credit Agreement.
11.10 Counterparts. This Credit Agreement may be executed by one or more of
the parties to this Credit Agreement on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Credit Agreement signed by all
the parties shall be lodged with the Borrower and the Agent.
11.11 Severability. Any provision of this Credit Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such
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prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
11.12 Integration. This Credit Agreement, the Notes and the other Credit
Documents represent the agreement of the Borrower, the Agent and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Agent, the Borrower or any
Lender relative to the subject matter hereof not expressly set forth or referred
to herein or in the Notes.
11.13 Governing Law. This Credit Agreement and the Notes and the rights and
obligations of the parties under this Credit Agreement and the Notes shall be
governed by, and construed and interpreted in accordance with, the internal laws
of the State of Wisconsin without giving effect to its conflicts of law
provisions.
11.14 Consent to Jurisdiction and Venue. All judicial proceedings brought
against the Borrower or any other Credit Party with respect to this Credit
Agreement, any Note or any of the other Credit Documents shall be brought in any
state or federal court of competent jurisdiction in the State of Wisconsin, and,
by execution and delivery of this Credit Agreement, the Borrower and each of the
other Credit Parties accepts, for itself and in connection with its properties,
generally and unconditionally, the exclusive jurisdiction of the aforesaid
courts and irrevocably agrees to be bound by any final judgment rendered thereby
in connection with this Credit Agreement from which no appeal has been taken or
is available. The Borrower, each of the other Credit Parties, the Agent and the
Lenders irrevocably waive any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of forum non conveniens
which it may now or hereafter have to the bringing of any such action or
proceeding in any such jurisdiction. Nothing herein shall limit the right of any
Lender to bring proceedings against the Borrower and each of the other Credit
Parties in the court of any other jurisdiction.
11.15 Acknowledgements. Each of the Credit Parties hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of each Credit Document;
(b) neither the Agent nor any Lender has any fiduciary relationship
with or duty to the Credit Parties arising out of or in connection with
this Credit Agreement and the relationship between Agent and Lenders, on
one hand, and the Credit Parties, on the other hand, in connection herewith
is solely that of debtor and creditor; and
(c) no joint venture exists among the Lenders or among the Credit
Parties and the Lenders.
11.16 Waivers of Jury Trial. THE CREDIT PARTIES, THE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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11.17 Limitation of Liability. THE CREDIT PARTIES, THE AGENT AND THE
LENDERS HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR RECOVER FROM THE
OTHER PARTY ANY EXEMPLARY OR PUNITIVE DAMAGES.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: THE JOURNAL COMPANY (to be renamed JOURNAL
COMMUNICATIONS, INC.)
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Xxxx X. Xxxxxxxx, Executive Vice-
President and Chief Financial Officer
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Vice-President and
Treasurer
Signature Page No. 1 to Credit Agreement
LENDERS: U.S. BANK NATIONAL ASSOCIATION
in its capacity as Agent and as a Lender
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxxx X. Xxxxxx, Vice President
Signature Page No. 2 to Credit Agreement
LASALLE BANK NATIONAL ASSOCIATION
By: /s/
---------------------------------------
Its: Senior Vice President
--------------------------------------
Signature Page No. 3 to Credit Agreement
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxx Xxxxx
---------------------------------------
Its: Vice President
--------------------------------------
Signature Page No. 4 to Credit Agreement
BANK ONE, NA
By: /s/
---------------------------------------
Its: First Vice President
--------------------------------------
Signature Page No. 5 to Credit Agreement
M&I XXXXXXXX & ILSLEY BANK
By: /s/
---------------------------------------
Its: Senior Vice President
--------------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Its: Vice President
--------------------------------------
Signature Page No. 6 to Credit Agreement
SUN TRUST BANK
By: /s/ Xxxxx Xxxxx
---------------------------------------
Its:
--------------------------------------
Signature Page No. 7 to Credit Agreement
ASSOCIATED BANK, N.A.
By: /s/
---------------------------------------
Its: Vice President
--------------------------------------
Signature Page No. 8 to Credit Agreement
BANK OF AMERICA, N.A.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Its: Vice President
--------------------------------------
Signature Page No. 9 to Credit Agreement
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Its: Second Vice President
--------------------------------------
Signature Page No. 10 to Credit Agreement
WACHOVIA BANK NATIONAL ASSOCIATION
By: /s/
---------------------------------------
Its: Director
--------------------------------------
Signature Page No. 11 to Credit Agreement
NATIONAL CITY BANK OF MICHIGAN/ILLINOIS
By: /s/ Raullo X. Xxxxx
---------------------------------------
Its: Vice President
--------------------------------------
Signature Page No. 12 to Credit Agreement
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: Xxxxx X. Xxxxxxxxxxx
---------------------------------------
Its: Vice President
--------------------------------------
Signature Page No. 13 to Credit Agreement
GUARANTORS: JOURNAL COMMUNICATIONS, INC. (to be
renamed THE JOURNAL COMPANY)
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Vice-President and
Treasurer
JOURNAL SENTINEL, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Assistant Treasurer
JOURNAL BROADCAST GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Assistant Treasurer
JOURNAL HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Assistant Treasurer
JOURNAL BROADCAST CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Assistant Treasurer
Signature Page No. 14 to Credit Agreement
NORTHSTAR PRINT GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Assistant Treasurer
ADD, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Assistant Treasurer
NORLIGHT TELECOMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Assistant Treasurer
IPC PRINT SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Assistant Treasurer
JOURNAL BROADCAST GROUP OF KANSAS, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Assistant Treasurer
Signature Page No. 15 to Credit Agreement
JOURNAL BROADCAST GROUP OF TENNESSEE, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Assistant Treasurer
Signature Page No. 16 to Credit Agreement
