CREDIT AGREEMENT
AMONG
XXXXXX CO., INC.,
THE FINANCIAL INSTITUTIONS PARTIES HERETO
AND
FIRSTAR BANK MILWAUKEE, N.A.,
AS AGENT
DATED AS OF FEBRUARY 15, 1999
TABLE OF CONTENTS
Page
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1. Definitions 1
2. The Credit Facilities; Fees
2.1 Revolving Loans 11
2.2 Interest Rate Options 12
2.3 Borrowing Procedure for Revolving Loans 12
2.4 Continuation and Conversion Procedure 14
2.5 Commitment Fee 14
2.6 Reduction or Termination of Revolving
Loan Commitment 15
2.7 Interest Rates 15
2.8 Payments 16
2.9 Prepayments 16
2.10 Additional LIBOR Rate Loan Provisions 17
2.11 Setoff 18
2.12 Pro Rata Treatment; Sharing of Payments 18
2.13 Capital Adequacy 19
2.14 Yield Protection 19
2.15 Taxes 20
2.16 Other Fees 22
2.17 Use of Proceeds 23
2.18 Lender Withdrawal Prior to Effective
Date; Replacement Lender 23
3. Representations and Warranties
3.1 Organizations, Subsidiaries; Corporate Power 24
3.2 Authorization and Binding Effect 24
3.3 Financial Statements 24
3.4 Litigation 25
3.5 Restricted Payments 25
3.6 Indebtedness; No Default 25
3.7 Ownership of Properties; Liens and Encumbrances 25
3.8 Tax Returns Filed 26
3.9 Margin Stock 26
3.10 Investment Company 26
3.11 ERISA Liabilities 26
3.12 No Burdensome Agreements 27
3.13 Trademarks, Etc. 27
3.14 Dump Sites 27
3.15 Tanks 27
3.16 Other Environmental Conditions 27
3.17 Changes in Laws 28
3.18 Environmental Judgments, Decrees and Orders 28
3.19 Environmental Permits and Licenses 28
3.20 Year 2000 28
3.21 Accuracy of Information 28
4. Conditions for Borrowing
4.1 On or Before the Date of Execution of this Agreement 28
4.2 On or Before the Effective Date 29
4.3 On or Before Each Subsequent Borrowing Date 31
5. Affirmative Covenants
5.1 Annual Financial Statement 31
5.2 Interim Financial Statements 32
5.3 Management Letters 32
5.4 Other Financial Information 32
5.5 Books and Records; Inspection 32
5.6 Insurance 32
5.7 Condition of Property 33
5.8 Payment of Taxes 33
5.9 Compliance with Law 33
5.10 ERISA Certificate 33
5.11 Compliance with Other Loan Documents 34
5.12 Notice of Default or Claimed Default 34
6. Negative Covenants
6.1 Restricted Payments 34
6.2 Limitations on Indebtedness 35
6.3 Limitations on Guaranty Obligations 35
6.4 Limitations on Lease Obligations 35
6.5 Limitation on Liens and Encumbrances 35
6.6 Limitation on Mergers, Etc. 35
6.7 Limitation on Acquisitions, Advances and Investments 35
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6.8 Lines of Business 36
6.9 Sales of Receivables 36
6.10 Sales of Subsidiaries 36
6.11 Sale and Leaseback 36
6.12 Indebtedness to Capitalization Ratio 36
6.13 Interest Coverage Ratio 36
6.14 Indebtedness to EBITDA Ratio 36
6.15 Transactions with Affiliates 36
7. Events of Default; Remedies
7.1 Events of Default 37
7.2 Remedies 38
8. The Agent
8.1 Appointment and Duties of Agent and Issuing Bank 39
8.2 Discretion and Liability of the Agent 39
8.3 Notice of Default 39
8.4 Consultation 39
8.5 Communications To and From the Agent 40
8.6 Limitations of Agency 40
8.7 No Representation or Warranty 40
8.8 Lender Credit Decision 40
8.9 Indemnity 40
8.10 Resignation or Removal of Agent; Successor
Agent 41
9. Miscellaneous
9.1 Survival of Representations and Warranties 41
9.2 Indemnification 42
9.3 Expenses 42
9.4 Notices 42
9.5 Assignments and Participations 43
9.6 Titles 44
9.7 Parties Bound; Waiver 44
9.8 Governing Law 45
9.9 Submission to Jurisdiction; Service of
Process 45
9.10 Waiver of Jury Trial 45
9.11 Limitation of Liability 46
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9.12 Amendments 46
9.13 Counterparts 46
9.14 Entire Agreement 46
Schedules
Schedule 1.1: Existing Liens and Security Interests
Schedule 3.4: Litigation
Schedule 3.18: Environmental Matters
Schedule 3.20 Year 2000 Compliance
Schedule 6.3 Guaranty Obligations
Exhibits
Exhibit A: Form of Revolving Note
Exhibit B: Form of Notice of Borrowing
Exhibit C Form of Conversion/Continuation Notice
Exhibit D: Form of Opinion of Company Counsel
Exhibit E Form of Assignment and Assumption
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of February 15, 1999, is among
XXXXXX CO., INC., a Wisconsin corporation (the "Company"), the financial
institutions parties hereto (individually a "Lender" and collectively the
"Lenders") and FIRSTAR BANK MILWAUKEE, N.A., as agent for the Lenders (in such
capacity, the "Agent"). The parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms
have the following meanings:
"Adjusted LIBOR Rate" means, with respect to a LIBOR Rate
Loan for the relevant Interest Period, a rate per annum (rounded upward, if
necessary, to the next higher 1/16 of 1%) determined according to the following
formula:
Adjusted LIBOR Rate = LIBOR Rate
------------------------------------
1.00 - LIBOR Reserve Requirement
"Affiliate" of any Person means any other Person, directly
or indirectly controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if the controlling
Person owns 10% or more of any class of voting securities (or other ownership
interests) of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether by ownership of stock (or other ownership interests),
by contract or otherwise.
"Amortization Expense" means, for any period, the aggregate
amount reported as an expense by the Company and its Consolidated Subsidiaries
for the amortization of intangible assets on the consolidated statement of
income for such period of the Company and its Consolidated Subsidiaries.
"Applicable Margin" means (a) in the case of Base Rate
Loans, minus 100 basis points (-1.0%) per annum and (b) in the case of LIBOR
Rate Loans, plus 75 basis points (.75%) per annum.
"Base Rate" means, for any day, the higher of (a) 0.50% per
annum above the latest Federal Funds Rate for such day and (b) the Prime Rate in
effect for such day.
"Base Rate Loans" means a Revolving Loan that bears interest
at a rate determined by reference to the Base Rate.
"Borrowing Date" means each date on which a Revolving Loan
is made by a Lender to the Company.
"Business Day" means a day (other than Saturday or Sunday)
on which banks are open for business in Milwaukee , Wisconsin and, with respect
to the making, payment or rate determination of a LIBOR Rate Loan, a day on
which dealings in United States dollars are carried on in the London interbank
market.
"Capitalized Lease Obligations" means the aggregate amount
of the obligations of the Company and its Consolidated Subsidiaries under any
lease or rental arrangement which would be capitalized under GAAP and shown as a
liability on the consolidated balance sheet of the Company and its Consolidated
Subsidiaries.
"Change in Control" means the acquisition by any Person, or
two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 35% or more of the outstanding shares of
voting stock of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consolidated Subsidiaries" means Subsidiaries whose
financial statements are consolidated with those of the Company in accordance
with GAAP.
"Controlled Group" means a group of trades or businesses
(whether or not incorporated) under common control, as defined in the
regulations issued pursuant to section 414(c) of the Code or such other
regulations prescribed by the Pension Benefit Guaranty Corporation pursuant to
section 4001(b)(1) of ERISA, of which the Company is a part.
"Conversion/Continuation Notice" means a notice in
substantially the form of Exhibit C.
"Default" means any act, event, condition or omission which,
with the giving of notice or lapse of time, would constitute an Event of Default
if uncured or unremedied.
"Depreciation Expense" means, for any period, the aggregate
amount reported as an expense by the Company and its Consolidated Subsidiaries
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for the depreciation of tangible assets on the consolidated statement of income
for such period of the Company and its Consolidated Subsidiaries.
"Earnings Before Taxes" means, for any period, the Net
Earnings of the Company and its Consolidated Subsidiaries, but before income
taxes, as reported on the consolidated statement of income for such period of
the Company and its Consolidated Subsidiaries.
"Effective Date" means July 1, 1999.
"Eligible Assignee" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000, (b) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000
(provided that such bank is acting through a branch or agency located in the
United States) and (c) a Person that is primarily engaged in the business of
commercial banking and which is an Affiliate of a Lender.
"Environmental Laws" means all federal, state and local laws
including statutes, regulations, ordinances, codes, rules and other governmental
restrictions and requirements relating to the discharge of air pollutants, water
pollutants or process waste water or otherwise relating to the environment or
hazardous substances including, but not limited to, the Federal Solid Waste
Disposal Act, the Federal Clean Air Act, the Federal Clean Water Act, the
Federal Resource Conservation and Recovery Act of 1976, the Federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
regulations of the Environmental Protection Agency, regulations of the Nuclear
Regulatory Commission and regulations of any state department of natural
resources or state environmental protection agency now or at any time hereafter
in effect.
"ERISA" means, at any date, the Employee Retirement Income
Security Act of 1974, and the regulations thereunder, all as the same shall be
in effect at such date.
"Event of Default" means the occurrence of any of the events
described in section 7.1.
"Federal Funds Rate" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight, Federal funds
transactions with members of the Federal Reserve System arranged by Federal
Funds brokers on such day, as published for such day by the Federal Reserve Bank
of New York in the weekly statistical release designated as H.15(519), or any
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successor publication, on the preceding Business Day opposite the caption
"Federal Funds Rate (Effective)", or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it. In the case of a day which is not a Business
Day, the Federal Funds Rate for such day shall be the Federal Funds Rate for the
preceding Business Day.
"Firstar" means Firstar Bank Milwaukee, N.A., a national
banking association.
"GAAP" means generally accepted accounting principles in
effect in the United States from time to time.
"Guaranty Obligations" means any direct or indirect
liability or obligation of the Company or any Subsidiary under any agreement,
undertaking or arrangement under which the Company or a Subsidiary guarantees,
endorses or otherwise becomes or is liable for an obligation of any other
Person.
"Indebtedness" of a Person means, without duplication, such
Person's (a) obligations for borrowed money, (b) obligations representing the
deferred purchase price of property or services (other than accounts payable
arising in the ordinary course of such Person's business payable on terms
customary in the trade), (c) obligations, whether or not assumed, secured by a
mortgage lien, pledge or security interest on the property of such Person, (d)
obligations which are evidenced by notes, acceptances or other instruments, (e)
Capitalized Lease Obligations, (f) obligations arising pursuant to Swap
Contracts and (g) obligations for which such Person is obligated pursuant to a
letter of credit.
In the case of the Company, for purposes of the financial
covenants in section 6 of this Agreement, the Indebtedness under clause (f)
shall be valued at the Swap Termination Value if a "termination event" or "event
of default" has occurred under the Swap Contract and, at all other times, shall
be deemed to be $0.
"Indebtedness to Capitalization Ratio" means the
relationship, expressed as a numerical ratio, between:
(a) Indebtedness;
and
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(b) the sum of (i) Indebtedness and (ii) Total Equity;
all as determined without duplication in accordance with GAAP applied on a
consistent basis to the Company and its Consolidated Subsidiaries as of the date
of determination.
"Indebtedness to EBITDA Ratio" means the relationship,
expressed as a numerical ratio, between:
(a) Indebtedness, as of the date of determination;
and
(b) the sum of (i) Earnings Before Taxes, (ii) Interest
Expense, (iii) Depreciation Expense and (iv) Amortization Expense, in each case
for the four quarter period ending on the date of determination; all as
determined in accordance with GAAP applied on a consistent basis to the Company
and its Consolidated Subsidiaries; provided, however, if the Company (a)
acquires the capital stock or other ownership interests of another Person (the
"Acquired Company") which, upon completion of the transaction, becomes a
Subsidiary or (b) acquires assets from another Person (the "Acquired Assets"),
then the Earnings Before Taxes, Interest Expense, Depreciation Expense and
Amortization Expense of the Acquired Company, or, in the case of Acquired
Assets, the portion thereof attributable to the Acquired Assets, shall be added
to or subtracted from, as the case may be, those of the Company for the portion
of the four quarter period preceding the date of determination that the Company
did not own the Acquired Company or the Acquired Assets. The Company shall
separately identify any amounts relating to an Acquired Company or to Acquired
Assets in the financial covenant calculations required to be provided under
section 5.2.
"Interest Coverage Ratio" means the relationship, expressed
as a numerical ratio, between:
(a) the sum of (i) Earnings Before Taxes and (ii)
Interest Expense;
and
(b) Interest Expense;
all as determined without duplication in accordance with GAAP applied on a
consistent basis to the Company and its Consolidated Subsidiaries for the four
quarter period ending on the date of determination.
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"Interest Expense" means, for any period, the aggregate
amount which would be reported as paid, incurred, or accrued as interest expense
on the consolidated statement of income for such period of the Company and its
Consolidated Subsidiaries.
"Interest Period" means, with respect to a LIBOR Rate Loan,
a period of one, two or three months commencing on (and including) a Business
Day selected by the Company pursuant to section 2.4(a) or 2.5(c) of this
Agreement and ending on (but excluding) the day which corresponds numerically to
such date one, two or three months thereafter (or, if such month has no
numerically corresponding date, on the last Business Day of such month),
provided that:
(a) if an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is in a new
calendar month in which case such Interest Period shall end on the immediately
preceding Business Day); and
(b) no Interest Period may end later than the Maturity
Date, in the case of a Revolving Loan.
"Lease Obligations" means, at any date, the obligations of
the Company or any Subsidiary under leases of real or personal property
(including taxes, insurance, maintenance and similar expenses which the Company
or a Subsidiary is required to pay under any such lease) whether or not such
obligations are reflected as liabilities on the consolidated balance sheet of
the Company or in a note thereto excluding, however, Capitalized Lease
Obligations.
"LIBOR Rate" means, with respect to a LIBOR Rate Loan for
the applicable Interest Period, the interest rate at which deposits in United
States dollars, in an amount approximately equal to the requested LIBOR Rate
Loan and having a maturity approximately equal to the requested Interest Period,
are offered to the Agent by prime banks in the London interbank market at
approximately 11 a.m. (London time) two Business Days prior to the first day of
such Interest Period. The LIBOR Rate determined by the Agent shall, in the
absence of manifest error, be conclusive.
"LIBOR Rate Loan" means a Revolving Loan bearing interest at
a rate determined by reference to the Adjusted LIBOR Rate.
"LIBOR Reserve Requirement" means, with respect to a LIBOR
Rate Loan for the applicable Interest Period, the percentage (expressed as a
decimal) equal to the maximum aggregate reserve requirements (including,
6
without limitation, any marginal, special, emergency and supplemental reserves)
established by the Board of Governors of the Federal Reserve System for
"eurocurrency liabilities" (as defined in Regulation D of such Board), or for
other liabilities which include deposits of the type used in determining the
LIBOR Rate, having a term approximately equal to the applicable Interest Period.
"Loan" means an extension of credit by a Lender to the
Company in the form of a Revolving Loan.
"Loan Documents" means this Agreement, the Notes and all
other documents, instruments and agreements related to or executed in connection
with this Agreement and the transactions contemplated hereby.
"Majority Lenders" means the Lenders holding in the
aggregate at least 51% of the aggregate outstanding principal balance of the
Loans or, if there are no Loans outstanding, Lenders whose aggregate Percentage
is at least 51%.
"Maturity Date" means June 29, 2000, or such earlier date on
which the Agent declares the Notes to be, or the Notes automatically become,
immediately due and payable pursuant to section 7.2 of this Agreement.
"Multiemployer Plan" means any pension benefit plan subject
to Title IV of ERISA as defined in section 4001(a)(3) of ERISA, to which the
Company, any of its Subsidiaries or any member of the Controlled Group is
required to contribute on behalf of its employees.
"Net Earnings" means, for any period, the excess of:
(a) all revenues and income derived from operations in
the ordinary course of business (excluding extraordinary gains and profits upon
the disposition of investments and fixed assets),
over
(b) all expenses and other proper charges against
income (including payment or provision for all applicable income and other
taxes, but excluding extraordinary losses and losses upon the disposition of
investments and fixed assets),
all as determined for such period in accordance with GAAP applied on a
consistent basis to the Company and its Consolidated Subsidiaries.
"Note" means a Revolving Note and "Notes" means all
Revolving Notes.
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"Notice of Borrowing" means a notice in substantially the
form of Exhibit B.
"Percentage" means, for each Lender:
(a) a percentage equal to such Lender's Revolving Loan
Commitment divided by the aggregate Revolving Loan Commitments of all Lenders;
or,
(b) if the aggregate Revolving Loan Commitments of all
Lenders have been terminated, a percentage equal to the outstanding principal
amount of Loans made by such Lender divided by the aggregate outstanding
principal amount of Loans made by all Lenders;
and the Percentage of each Lender as of the date of execution of this Agreement
is set forth opposite its signature hereto.
"Permitted Liens" means (a) security interests and liens
listed on Schedule 1.1 attached hereto, provided that the Indebtedness secured
thereby shall not be renewed, extended or increased; (b) liens for taxes,
assessments or governmental charges not delinquent or being contested in good
faith by the Company or any Subsidiary for which adequate reserves are
established and maintained in accordance with GAAP; (c) construction lien claims
not delinquent; (d) purchase money security interests or liens on any property
to be used by the Company or a Subsidiary in the normal course of its business,
and created or incurred simultaneously with the acquisition of such property, if
such security interest or lien is limited to the property so acquired and the
aggregate Indebtedness incurred by the Company and its Subsidiaries during any
fiscal year which is secured by such security interests and liens does not
exceed $2,000,000; (e) liens or deposits in connection with worker's
compensation or other insurance or to secure the performance of bids, trade
contracts (other than for borrowed money), leases, public or statutory
obligations, surety or appeal bonds or other obligations of like nature incurred
in the ordinary course of business; (f) security interests or liens in respect
of capital assets acquired pursuant to capitalized leases, provided the
aggregate Capitalized Lease Obligations (determined in accordance with GAAP)
under all capitalized leases does not exceed $2,000,000; and (h) easements,
restrictions, minor title irregularities and similar matters which have no
material adverse effect as a practical matter upon the ownership or use of its
property by the Company or any Subsidiary.
"Permitted Swap Contract" means a Swap Contract between the
Company and a Lender (or any Affiliate of a Lender); provided that such
agreement is entered into in the ordinary course of business by the Company for
8
the purpose of mitigating the Company's risks with respect to interest rate
volatility and not for the purpose of speculation.
"Person" means any natural person, corporation, limited
liability company, joint venture, partnership, association, trust or other
entity or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means any pension benefit plan subject to Title IV of
ERISA, including any Multiemployer Plan, maintained by the Company, any of its
Subsidiaries or any member of the Controlled Group or any such Plan to which the
Company, any of its Subsidiaries or any member of the Controlled Group is
required to contribute on behalf of its employees.
"Prime Rate" means the rate of interest announced by the
Agent from time to time as its base rate for interest rate determinations. The
Prime Rate may or may not be the lowest interest rate charged by the Agent.
"Quoted Rate" means, as to a Swing Line Loan, the per annum
rate of interest quoted to the Company by Firstar as the rate of interest
applicable to the Swing Line Loan requested by the Company.
"Quoted Rate Loan" means a Swing Line Loan that bears
interest based on the Quoted Rate.
"Reportable Event" means a reportable event as that term is
defined in ERISA.
"Restricted Payments" means dividends or other distributions
by the Company or any Subsidiary based upon the stock or other ownership
interest of the Company or any Subsidiary (except dividends payable to the
Company and dividends payable solely in stock of the Company) and purchases,
redemptions and other acquisitions, direct or indirect, by the Company or any
Subsidiary, of the stock or other ownership interest of the Company or any
Subsidiary.
"Revolving Loan" means a Loan made by a Lender to the
Company pursuant to section 2.1 of this Agreement.
"Revolving Loan Commitment" means the obligation of each
Lender to make Revolving Loans to the Company. The total Revolving Loan
Commitment of the Lenders is $100,000,000 as of the date of the execution of
this Agreement and is subject to reduction from time to time pursuant to section
2.6 and is further subject to reduction and reinstatement pursuant to section
2.18. The
9
Revolving Loan Commitment of each Lender as of the date of execution of this
Agreement is set forth opposite its signature hereto.
"Revolving Note" means a promissory note of the Company in
the form of Exhibit A, appropriately completed, evidencing Revolving Loans made
by a Lender to the Company and "Revolving Notes" means each Revolving Note.
"Subordinated Debt" means Indebtedness for borrowed money of
the Company or any of its Subsidiaries, the payment of which is fully
subordinated, in a manner satisfactory to the Lenders, to the prior payment of
the Notes.
"Subsidiary" means as of a particular date (a) any
corporation more than 50% of whose outstanding stock having ordinary voting
power for the election of directors shall at the time be owned or controlled by
the Company or by one of its Subsidiaries and (b) any limited liability company
more than 50% of whose outstanding ownership interests shall at the time be
owned or controlled by the Company or by one of its Subsidiaries.
"Swap Contract" means any agreement (including any master
agreement and the schedules thereto) designed to protect at least one of the
parties thereto from fluctuations in interest rates, exchange rates or forward
rates including, but not limited to, dollar-denominated or cross-currency
interest rate exchange agreements, forward currency exchange agreements,
interest rate swap, cap or collar agreements, forward rate currency or interest
rate options, puts and warrants.
"Swap Termination Value" means, in respect to any Swap
Contract, the termination value determined in accordance with such Swap Contract
after taking into account any legally enforceable netting agreement.
"Swing Line Loan" means a Revolving Loan made to the Company
by Firstar pursuant to Section 2.1(b). Swing Line Loans shall be a subfacility
of Firstar's Revolving Loan Commitment and thus, a subfacility of the Lenders'
total Revolving Loan Commitment.
"Term Loan" means an advance by a Lender to the Company with
a duration of one, three or five years to be used by the Company to finance (or
refinance Revolving Loans made to finance) the acquisition of the business
and/or assets of another Person. Term Loans will be made only upon the execution
and delivery of an amendment to this Agreement containing terms and conditions
acceptable to the Company and all of the Lenders.
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"Total Equity" means the aggregate amount shown as
shareholders' equity as reported on the consolidated balance sheet of the
Company and its Consolidated Subsidiaries.
"Type" means, with respect to any Revolving Loan, its nature
as a Base Rate Loan or as a LIBOR Rate Loan.
2. The Credit Facilities; Fees.
2.1 Revolving Loans.
(a) During the period from the Effective Date to the
Maturity Date, each Lender will make Revolving Loans to the Company, subject to
the terms and conditions hereof, in an amount equal to such Lender's Percentage
of the amount of Revolving Loans requested by the Company on the applicable
Borrowing Date, up to the maximum amount at any time outstanding of such
Lender's Revolving Loan Commitment; provided, however, that the Lenders shall
have no obligation to make Revolving Loans to the Company if, after giving
effect thereto, the sum of the aggregate outstanding principal amount of
Revolving Loans would exceed the total Revolving Loan Commitments. Within such
maximum amount Revolving Loans may be made, repaid and made again. The Revolving
Loans made by a Lender shall be evidenced by a Revolving Note payable to the
order of such Lender and shall be payable on the Maturity Date. Although each
Revolving Note shall be expressed to be payable in the amount of the payee
Lender's Revolving Loan Commitment on the Effective Date, the Company shall be
obligated to pay only the amount of Revolving Loans actually disbursed to or for
the account of the Company by the payee Lender, together with interest on the
unpaid balance of the sums so disbursed, which remain outstanding from time to
time as shown on the records of the payee Lender. Except as set forth below, the
Revolving Loans made by the Lenders on a Borrowing Date shall be made ratably in
accordance with each Lender's Percentage.
(b) The parties agree that for ease of administration
and to avoid frequent transfers of funds, Firstar may at its option and from
time to time make Swing Line Loans to the Company without proportionate loans by
the other Lenders. Notwithstanding any provision of this Agreement to the
contrary:
(i) The aggregate outstanding principal amount of
all outstanding Swing Line Loans shall not exceed $5,000,000;
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(ii) The Company may request a Swing Line Loan by
a telephonic request therefor to Firstar not later than 3 p.m., Milwaukee,
Wisconsin time on the requested Borrowing Date;
(iii) Swing Line Loans shall be evidenced by the
Revolving Note payable to the order of Firstar;
(iv) Swing Line Loans shall be Base Rate Loans or
Quoted Rate Loans, at the option of the Company; and
(v) Swing Line Loans may be prepaid at any time in
whole or in part without premium or penalty and all payments of principal and
interest made by the Company on Swing Line Loans shall be made to and retained
by Firstar.
Except as expressly set forth to the contrary in this
Agreement, Swing Line Loans shall be governed by the provisions of this
Agreement applicable to Revolving Loans.
During any period that any Swing Line Loans are outstanding,
the Lenders agree that at any time, upon the request of Firstar, each Lender
will make a Revolving Loan to the Company by transferring to Firstar an amount
equal to such Lender's Percentage of the aggregate principal amount of, and
accrued interest on, the Swing Line Loans then outstanding. Such transfer shall
be considered a Revolving Loan (which shall be a Base Rate Loan) by that Lender
to the Company and a payment of the Swing Line Loans by the Company to Firstar.
If an Event of Default occurs while Swing Line Loans are outstanding, each
Lender agrees to purchase from Firstar, at any time upon Firstar's request, a
participation in such Swing Line Loans in an amount equal to such Lender's
Percentage of the then outstanding principal amount of, and accrued interest on,
the Swing Line Loans, and the principal amount of such participation shall bear
interest at the greater of the Base Rate or the interest rate in effect for such
Swing Line Loans.
2.2 Interest Rate Options. Revolving Loans, except for Swing Line
Loans, may be Base Rate Loans or LIBOR Rate Loans, or a combination thereof. The
Company shall select the Type of Revolving Loan (and in the case of LIBOR Rate
Loans, the applicable Interest Period) in accordance with sections 2.3(a) and
2.4(c). The aggregate principal amount of LIBOR Rate Loans made by the Lenders
on a Borrowing Date, or pursuant to an election by the Company to either (a)
convert Base Rate Loans to LIBOR Rate Loans or (b) continue LIBOR Rate Loans,
shall be in a minimum amount of $1,000,000 and in integral multiples of $100,000
above such minimum. After giving effect to any
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advance under section 2.1 or conversion or continuation under section 2.4, there
may not be more than 10 different Interest Periods in effect.
2.3 Borrowing Procedure for Revolving Loans.
(a) The Company shall request Revolving Loans by submitting
a Notice of Borrowing to the Agent. The Notice of Borrowing must be received by
the Agent (i) in the case of LIBOR Rate Loans, not later than 11 a.m.,
Milwaukee, Wisconsin time, on a Business Day which is three Business Days prior
to the requested Borrowing Date (which must be a Business Day) and (ii) in the
case of Base Rate Loans, not later than 11 a.m., Milwaukee, Wisconsin time, on
the requested Borrowing Date (which must be a Business Day). Each Notice of
Borrowing must specify the amount of the requested Revolving Loans, the Type of
requested Revolving Loans and, if the Company requests LIBOR Rate Loans, the
applicable Interest Period. The aggregate amount of each type of Revolving Loans
made on each Borrowing Date shall be in a minimum amount of $1,000,000 and in
integral multiples of $100,000 above such minimum. Each Notice of Borrowing
shall be irrevocable and shall constitute a certification by the Company that
the borrowing conditions specified in sections 4.3(b) and 4.3(c) will be
satisfied on the specified Borrowing Date. The Agent will promptly notify the
Lenders of the requested Revolving Loans. On or before 3 p.m., Milwaukee,
Wisconsin time, on the specified Borrowing Date each Lender shall deposit its
Percentage of the requested Revolving Loans with the Agent in immediately
available funds. Upon fulfillment of the applicable borrowing conditions, the
Agent shall deposit the Revolving Loans in the Company's account maintained with
the Agent or as the Company may otherwise direct in writing.
(b) Unless the Agent shall have been notified by telephone,
confirmed promptly thereafter in writing, by a Lender not later than 2 p.m.,
Milwaukee, Wisconsin time, on a Borrowing Date that such Lender will not make
available to the Agent such Lender's Percentage of the requested Revolving
Loans, the Agent may assume that such Lender has made such amount available to
the Agent and, in reliance upon such assumption, the Agent may (but shall not be
required) to make available to the Company on such Borrowing Date a
corresponding amount. If and to the extent that such Lender shall not have so
made such amount available to the Agent and the Agent in such circumstances has
made such amount available to the Company, such Lender shall on the Business Day
following the Borrowing Date make such amount, together with interest at the
Federal Funds Rate for each day during such period, available to the Agent. If
such amount is so made available, such payment to the Agent shall constitute
such Lender's Revolving Loan on the Borrowing Date for all purposes of this
Agreement. If such amount is not made available to the Agent on the Business Day
following the Borrowing Date, the Agent shall notify the Company of such
13
failure to fund and, upon demand by the Agent, the Company shall pay such amount
to the Agent for the Agent's account together with interest thereon, for each
day from the date the Agent made such amount available to the Company to the
date such amount is repaid to the Agent, at the interest rate specified in
section 2.7(a).
(c) The failure of any Lender to make a Revolving Loan shall
not relieve any other Lender of its obligation hereunder to make a Revolving
Loan on the applicable Borrowing Date, but no Lender shall be responsible for
the failure of any other Lender to make the Revolving Loan to be made by such
other Lender on the applicable Borrowing Date.
2.4 Continuation and Conversion Procedure.
(a) Base Rate Loans shall continue as Base Rate Loans unless
and until converted into LIBOR Rate Loans. The Company may elect from time to
time, subject to the terms and conditions of this Agreement, to convert all or
any part of the outstanding Base Rate Loans into LIBOR Rate Loans.
(b) At the end of the applicable Interest Period for LIBOR
Rate Loans, such LIBOR Rate Loans shall be automatically converted into Base
Rate Loans unless the Company shall have given the Agent notice in accordance
with section 2.4(c) requesting that, at the end of such Interest Period, such
LIBOR Rate Loans continue as LIBOR Rate Loans.
(c) The Company shall deliver a Conversion/ Continuation
Notice to the Agent for each conversion of Base Rate Loans or continuation of
LIBOR Rate Loans. The Conversion/Continuation Notice must be received by the
Agent not later than 11 a.m., Milwaukee time, at least three Business Days prior
to the date of the requested conversion or continuation and must specify (i) the
requested date (which shall be a Business Day) of such conversion or
continuation, (ii) the amount of Loans to be converted or continued and (iii)
the duration of the Interest Periods applicable thereto.
(d) The Agent will promptly notify each Lender of its
receipt of a Conversion/Continuation Notice or, if no notice is timely provided
by the Company, the Agent will promptly notify each Lender of the details of any
automatic conversion. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Loans with
respect to which the notice was given.
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(e) Notwithstanding anything to the contrary contained in
this section, Loans may not be converted into or continued as LIBOR Rate Loans
when any Default or Event of Default has occurred and is continuing.
2.5 Commitment Fee. As consideration for the Lenders' Revolving
Loan Commitments, the Company will pay to the Agent, for the account of the
Lenders, on the last Business Day of each quarter commencing September 30, 1999
and on the Maturity Date, a commitment fee equal to .15% (15 basis points) per
annum of the daily average unused amount of the Revolving Loan Commitment during
the preceding quarter or other applicable period; provided that for purposes of
computing the commitment fee due on September 30, 1999, the applicable period
shall be the Effective Date through September 30, 1999. Commitment fees shall be
calculated for the actual number of days elapsed on the basis of a 360-day year.
2.6 Reduction or Termination of Revolving Loan Commitment.
(a) The Company may, upon seven Business Days' prior written
notice to the Agent, permanently reduce the amount of the total Revolving Loan
Commitment; provided that (i) no such reduction shall reduce the amount of the
total Revolving Loan Commitment to an amount less than the sum of the aggregate
unpaid principal balances of the Revolving Notes on the date of such reduction
and (ii) upon any termination of the Revolving Loan Commitments the Company
shall pay to the Agent, for the account of the Lenders, the outstanding
principal balance of the Revolving Notes, all accrued interest on the Revolving
Notes and all fees, expenses and other amounts payable under this Agreement
relating to the Revolving Loans as of the termination date. Each reduction in
the total Revolving Loan Commitment shall be in a minimum amount of $1,000,000.
Each reduction in the total Revolving Loan Commitment shall ratably reduce each
Lender's Revolving Loan Commitment.
(b) The total Revolving Loan Commitment shall be reduced by
the principal amount of Revolving Loans the Company and the Lenders agree to
convert to Term Loans. As the Company repays the outstanding principal under the
Term Loans, the total Revolving Loan Commitment shall be increased by the amount
of each principal repayment and the Revolving Loan Commitment of each Lender
will be ratably increased.
2.7 Interest Rates.
(a) The unpaid principal balance of Base Rate Loans
outstanding from time to time under the Revolving Notes shall bear interest
prior to the Maturity Date at an annual rate equal to the Base Rate plus the
15
Applicable Margin for Base Rate Loans, and such rate shall change on each day on
which the Base Rate changes. Accrued interest shall be due on the first Business
Day of each month, commencing August 2, 1999, and on the Maturity Date.
(b) The unpaid principal balance of each LIBOR Rate Loan
under the Revolving Notes shall bear interest during the applicable Interest
Period at the corresponding Adjusted LIBOR Rate plus the Applicable Margin for
LIBOR Rate Loans. Accrued interest for each LIBOR Rate Loan shall be due on the
last day of the applicable Interest Period, and on the Maturity Date.
(c) The unpaid principal balance of each Quoted Rate Loan
outstanding from time to time under the Revolving Notes shall bear interest
prior to the Maturity Date at an annual rate equal to the Quoted Rate. Accrued
interest for each Quoted Rate Loan shall be due on the first Business Day of
each month, commencing on the first of such dates to occur after the Borrowing
Date for such Quoted Rate Loan.
(d) Notwithstanding the provisions of sections 2.7(a),
2.7(b), and 2.7(c) above, upon the occurrence and during the continuance of an
Event of Default, the unpaid principal balance of each Note shall, upon notice
from the Agent to the Company (which notice the Agent may send in its discretion
and shall send at the direction of the Majority Lenders), bear interest at an
annual rate equal to the Base Rate plus one percentage point (the "Default
Rate"), payable upon demand. On and after the Maturity Date, the unpaid
principal balance of the Revolving Notes and all accrued interest thereon shall
bear interest at the Default Rate and shall be payable upon demand.
(e) Interest shall be calculated for the actual number of
days elapsed on the basis of a 360-day year.
2.8 Payments. All payments of principal and interest on the Notes
and of all fees due hereunder shall be made at the office of the Agent, for the
account of the Lenders, in immediately available funds not later than 12 noon,
Milwaukee, Wisconsin time, on the date due; funds received after that time shall
be deemed to have been received on the next Business Day. Whenever any payment
to be made shall otherwise be due on a day which is not a Business Day, such
payment shall be made on the next succeeding Business Day and such extension of
time shall be included in computing interest and fees, if any, in connection
with such payment. The Agent may charge any account of the Company at the Agent
or at any Lender for any payment due under the Notes, or any fee or expense
payable hereunder, on or after the date due. Except as otherwise provided in
section 2.12, the Agent shall forward to each Lender,
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promptly after receipt (and in any event no later than 2 p.m. on the following
Business Day), such Lender's Percentage of such payments received by the Agent.
2.9 Prepayments. The Company shall make a mandatory prepayment of
the Revolving Notes if and to the extent that the sum of the aggregate
outstanding principal balances of the Revolving Notes exceeds the Revolving Loan
Commitment. The Company may at any time repay, without premium or penalty, Base
Rate Loans in a minimum amount of $ 100,000 (or, if less, all outstanding Base
Rate Loans). The Company may at any time repay, without premium or penalty,
Quoted Rate Loans. The Company may prepay LIBOR Rate Loans (in a minimum amount
of $1,000,000 and in integral multiples of $100,000 above such minimum) at any
time; provided, that, in the event of a prepayment of a LIBOR Rate Loan on any
day other than the last day of the applicable Interest Period, the Company shall
also pay to the Agent for the account of the Lenders on the prepayment date the
amounts referred to in section 2.10(c).
The Company will give the Agent notice of any optional prepayment
of the Revolving Notes not later than 12 noon, Milwaukee, Wisconsin time, on the
Business Day prior to the prepayment date, specifying the prepayment date (which
must be a Business Day) and the amount to be prepaid. The amount of such
prepayment and any amounts related thereto shall be due and payable on the
specified prepayment date.
2.10 Additional LIBOR Rate Loan Provisions
(a) If any Lender determines that the making or maintaining
of a LIBOR Rate Loan would violate any applicable law, rule regulation or
directive, whether or not having the force of law, then the obligation of the
Lenders to make or continue LIBOR Rate Loans, or to convert Base Rate Loans into
LIBOR Rate Loans, shall be suspended until the Agent notifies the Company that
the circumstances causing such suspension no longer exist. During any such
period, all LIBOR Rate Loans shall automatically convert into Base Rate Loans at
the end of the applicable Interest Period or sooner if required by law.
(b) If the Agent is unable to determine the LIBOR Rate in
respect of a requested Interest Period or the Majority Lenders are unable to
obtain deposits of United States dollars in the London interbank market in the
applicable amounts and for the requested Interest Period, then, upon notice from
the Agent to the Company, the obligation of the Lenders to make or continue
LIBOR Rate Loans, or to convert Base Rate Loans into LIBOR Rate Loans, shall be
suspended until the Agent notifies the Company that the circumstances causing
such suspension no longer exist.
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(c) If any Lender shall incur any loss or expense (including
any loss or expense incurred by reason of a liquidation or redeployment of
deposits or other funds acquired by such Lender to make, continue or maintain
any portion of a LIBOR Rate Loan, or to convert any portion of a Base Rate Loan
into a LIBOR Rate Loan) as a result of: (i) any conversion or repayment or
prepayment of the principal amount of LIBOR Rate Loan on a date other than the
last day of the Interest Period applicable thereto (whether as a result of
acceleration, prepayment or otherwise); (ii) any Revolving Loan not being made
as a LIBOR Rate Loan in accordance with the Notice of Borrowing therefor; or
(iii) any Revolving Loan not being continued as, or converted into, a LIBOR Rate
Loan in accordance with the Continuation/ Conversion Notice therefore, then,
upon written notice from such Lender to the Company, the Company shall, within
ten days of its receipt thereof, pay to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense. Such written notice (which shall include calculations in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Company.
2.11 Setoff. Each Lender shall, upon the occurrence and during
the continuance of an Event of Default, have the right to apply to the payment
of any Note held by such Lender (whether or not then due) any and all balances,
credits, deposits, accounts or monies of the Company then or thereafter
maintained with such Lender. Each Lender agrees to promptly notify the Company
and the Agent after any such setoff and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such setoff and application.
2.12 Pro Rata Treatment; Sharing of Payments.
(a) Except as otherwise provided in this Agreement, all
payments of principal, interest and fees made by the Company shall be
distributed pro rata to the Lenders according to their respective Percentages.
If any Lender shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of setoff or otherwise) in excess of its pro rata
share of payments then or therewith obtained by all Lenders, such Lender shall
immediately purchase, without recourse and for cash, from the other Lenders,
such participations in the Notes of such other Lenders so that each Lender shall
thereafter have a percentage interest in all of such obligations equal to such
Lender's Percentage; provided, however, that if any payment so received shall be
recovered in whole or in part from such purchasing Lender, the purchase shall be
rescinded and the purchase price restored to the extent of any such recovery,
but without interest. The Company agrees that any Lender so purchasing a
participation from another Lender pursuant to this section may, to the fullest
extent
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permitted by law, exercise all of its rights of payment (including its right of
setoff) with respect to such participation as if such Lender were the direct
creditor of the Company in the amount of such participation.
(b) Notwithstanding anything to the contrary contained in
this Credit Agreement, any Lender that fails to make available to the Agent its
pro rata share of any Loan as, when and to the full extent required by the
provisions of this Credit Agreement, shall be deemed delinquent ("a "Delinquent
Lender") until such time as such delinquency is satisfied. A Delinquent Lender
shall be deemed to have assigned any and all payments due to it from the Company
to the Agent and the nondelinquent Lenders for application to, and reduction of,
their respective pro rata shares of all outstanding Loans. The Delinquent Lender
hereby authorizes the Agent to (i) retain such payments to the extent the Agent
funded such delinquency or (ii) distribute such payments to the nondelinquent
Lenders in proportion to their respective pro rata shares of all outstanding
Loans to the extent the nondelinquent Lenders funded such delinquency. A
Delinquent Lender shall be deemed to have satisfied in full a delinquency when
and if, as a result of the application of the assigned payments to the Agent
and/or the nondelinquent Lenders, all advances funded by the Agent have been
repaid in full and the Lenders' respective pro rata shares of all outstanding
Loans have returned to their respective Percentages.
2.13 Capital Adequacy. As used in this section, the term
"Regulatory Change" means any change enacted or issued after the date of this
Agreement of any (or the adoption after the date of this Agreement of any new)
federal or state law, regulation, interpretation, direction, policy or
guideline, or any court decision, which affects (or, in the case of a court
decision would, if the decision were applicable to any Lender, affect) the
treatment of any Loan or any commitment of any Lender hereunder as an asset or
other item included for the purpose of calculating the appropriate amount of
capital to be maintained by such Lender or any corporation controlling such
Lender. If such Regulatory Change has the effect of reducing the rate of return
on such Lender's or such corporation's capital as a consequence of the Loans or
commitments of such Lender hereunder to a level below that which such Lender or
such corporation could have achieved but for such Regulatory Change (taking into
account such Lender's or such corporation's policies with respect to capital
adequacy) by an amount deemed in good faith by such Lender to be material, then
from time to time following notice by such Lender to the Company of such
Regulatory Change, within ten days after demand from such Lender, the Company
shall pay to such Lender such additional amount or amounts as will compensate
such Lender or such corporation, as the case may be, for such reduction.
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2.14 Yield Protection. If any law or any governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any interpretation thereof, or the compliance of any Lender therewith,
(a) subjects any Lender to any tax, duty, charge or
withholding on or from payments due from the Company (excluding federal taxation
of the overall net income of any Lender and any such tax, duty, charge or
withholding in effect as of the date of this Agreement), or changes the basis of
taxation of payments to any Lender in respect of its Loans or other amounts due
it hereunder (excluding federal taxation of the overall net income of any
Lender);
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
lender (other than reserves and assessments taken into account in determining
the interest rate applicable to LIBOR Rate Loans) with respect to its Loans or
any Letter of Credit; or
(c) imposes any other condition the result of which is to
increase the cost to any Lender of making, funding or maintaining the Loans or
reduces any amount received by any Lender in connection with the Loans or
requires any Lender to make any payment calculated by reference to the amount of
Loans held or interest received by it, by an amount deemed material by such
Lender;
then, within ten days of demand by such Lender, the Company shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable thereto.
2.15 Taxes.
(a) Any and all payments by the Company hereunder or under
the Notes shall be made, in accordance with sections 2.08 and 2.09 free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding in the case of each Lender and the Agent, taxes imposed on or
measured by net income or overall gross receipts, and capital and franchise
taxes imposed on it (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
Subject to the provisions of subsection 2.15(h) below, if the Company shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender or the Agent, (i) the sum payable
shall be increased as may be necessary so that after making all required
deductions
20
(including deductions applicable to additional sums payable under this section
2.15) such Lender or the Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Company shall make such deductions and (iii) the Company shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Company agrees to pay any present and
future stamp and documentary taxes and any other excise and property taxes,
charges and similar levies which arise from any payment made hereunder or under
the Notes or the other Loan Documents or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or the Notes or
the other Loan Documents (the foregoing are collectively referred to herein as
"Other Taxes").
(c) Except to the extent the Company makes payments pursuant
to subsections (a) or (b) above, and subject to the provisions of subsection (h)
below, the Company will indemnify each Lender and the Agent against, and
reimburse each on demand for, the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes and Other Taxes imposed by any
jurisdiction on amounts payable under this section 2.15) incurred or paid by
such Lender or the Agent (as the case may be) or any of their respective
affiliates and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. Each Lender agrees, within a
reasonable time after receiving a written request from the Company, to provide
the Company and the Agent with such certificates as are reasonably required, and
take such other actions as are reasonably necessary, to claim such exemptions as
such Lender may be entitled to claim in respect of all or a portion of any Taxes
or Other Taxes which are otherwise required to be paid or deducted or withheld
pursuant to this section 2.15 in respect of any payments under this Agreement or
under the Notes.
(d) Within 90 days after the close of each fiscal year of
the Company, the Company will furnish to the Agent, at its address referred to
in section 11.4, the original or a certified copy of a receipt evidencing
payment of any Taxes or Other Taxes during such fiscal year.
(e) Each Lender that is not created or organized under the
laws of the United States or a political subdivision thereof shall deliver to
the Company and the Agent on the date hereof (i) [a] two duly completed copies
of IRS Form 1001 (or any successor or substitute form or forms) if such Lender
claims eligibility to receive payments hereunder and under the Notes or
21
other documents without deduction or withholding of United States federal income
tax under the provisions of an applicable tax treaty concluded by the United
States or [b] two duly completed copies of IRS Form 4224 (or any successor or
substitute form or forms) if the Lender claims such eligibility under sections
1441(c)(1) and 1442(a) of the Code. Each such Lender shall amend or deliver such
additional IRS Forms as required by law and to the extent legally entitled to do
so.
(f) Any Lender claiming any additional amounts payable
pursuant to this section 2.15 shall use its best efforts (consistent with its
internal policy and legal and regulatory restrictions) to take any actions
permissible if the taking of such action would avoid the need for, or reduce the
amount of, any such additional amounts which may thereafter accrue and would
not, in the reasonable judgment of such Lender, be otherwise disadvantageous to
such Lender including changing the jurisdiction of its lending office. If such
additional amounts cannot be eliminated by such actions, the Company shall have
the right to replace the affected Lender hereunder with a Lender not so affected
which is reasonably acceptable to the Agent and the remaining Majority Lenders
upon payment to such affected Lender of outstanding principal, accrued interest
and fees and all other amounts due pursuant to this Agreement, including any
amounts payable hereunder and under sections 2.10, 2.13 and 2.14. No replacement
of a Lender shall be made pursuant hereto if, after giving affect thereto, any
amount shall be owing the replaced Lender hereunder.
(g) Without prejudice to the survival of any other agreement
of the Company under this Agreement, the agreements and obligations of the
Company, the Lenders or the Agent contained in this section 2.15 shall survive
the payment in full of principal and interest under this Agreement and under the
Notes.
(h) Notwithstanding the provisions of section 2.15(a) and
2.15(c) above, the Company shall not be required to pay any additional amounts
thereunder to a Lender if (i) the obligation to pay such additional amounts
would not have arisen but for a failure of the Lender to comply with
requirements described in section 2.15(e) and an exemption would have been
available to such Lender or (ii) the Lender shall not have furnished the Company
with such forms or shall not have taken such other action as reasonably may be
available to it under applicable tax laws and any applicable tax treaty to
obtain an exemption from, or reduction (to the lowest applicable rate) of
withholding of such United States federal income tax and an exemption would have
been available to such Lender; provided, however, that the Company's obligation
to pay such additional amounts shall be reinstated upon receipt of such
22
forms or evidence that action with respect to obtaining such exemption or
reduction has been taken.
2.16 Other Fees. In addition to the other fees described herein:
(a) the Company shall pay to the Agent, for the ratable
account of the Lenders, a closing fee of $75,000 on the date of the execution of
this Agreement, which fee shall be fully earned on the Effective Date and shall
be refunded by a Lender only if such Lender withdraws from this Agreement
pursuant to Section 2.18(a); and
(b) the Company shall pay to Firstar, for the sole account
of Firstar, the fees set forth in that certain letter agreement dated as of
February 15, 1999 between Firstar and the Company.
2.17 Use of Proceeds. The Company shall use Loan proceeds solely
for the purpose of refinancing existing Indebtedness, corporate acquisitions,
working capital needs and for other general corporate and lawful purposes.
2.18 Lender Withdrawal Prior to Effective Date; Replacement
Lender.
(a) Each Lender may, by sending written notice to the Agent
and the Company on or prior to June 30, 1999, withdraw from this Agreement. In
such event, (i) all rights and obligations of the withdrawing Lender under this
Agreement shall immediately terminate and the withdrawing Lender shall be deemed
to no longer be a party to this Agreement and (ii) the total Revolving Loan
Commitment of the Lenders shall be reduced by the Revolving Loan Commitment of
the withdrawing Lender. The withdrawing Lender shall, at the time it sends
notice of withdrawal, refund to the Company such Lender's ratable share of the
closing fee paid by the Company pursuant to section 2.16(a). The withdrawing
Lender shall be entitled to the benefit of section 9.2 of this Agreement with
respect to matters arising prior to the date of such Lender's withdrawal.
(b) The Company and the Lenders may agree, on or before the
Effective Date, to add a new financial institution to this Agreement to replace
the withdrawing Lender. To do so, the Company, the Agent, the Lenders and the
new Lender shall execute an amendment or supplement to this Agreement which sets
forth the Revolving Loan Commitment of the new Lender and contains an agreement
that the new Lender will be bound by the provisions of this Agreement.
23
Such amendment or supplement shall address such other matters as are mutually
agreeable to the Company, the Agent, the Lenders and the new Lender. Upon the
execution and delivery of such amendment or supplement, the new Lender shall be
a party to this Agreement and shall be a "Lender" for all purposes of the
Agreement and the total Revolving Loan Commitment of the Lenders shall be
increased by the Revolving Loan Commitment of the new Lender.
3. Representations and Warranties. In order to induce the Lenders to
make the Loans, the Company represents and warrants to the Lenders that:
3.1 Organization; Subsidiaries; Corporate Power. The Company is a
corporation validly existing under the laws of the State of Wisconsin and (a)
the Company has filed with the Wisconsin Department of Financial Institutions
the required annual report for its most recently completed report year, (b) the
Company is not the subject of a proceeding under Wisconsin Statutes section
180.1421 to cause its dissolution, (c) no filing has been made with the
Wisconsin Department of Financial Institutions of a decree of dissolution with
respect to the Company and (d) neither the shareholders nor the Board of
Directors of the Company have taken any action authorizing the liquidation or
dissolution of the Company. The Company is duly qualified as a foreign
corporation to do business and is in good standing in every jurisdiction in
which the nature of its business or the ownership of its properties requires
such qualification and in which the failure to so qualify would materially
adversely affect the business operations or financial condition of the Company.
Schedule 3.1 contains the name, state of incorporation and number of authorized
and outstanding shares of each class of stock of each Subsidiary and the number
thereof owned by the Company. Each Subsidiary is validly existing and in good
standing in the state of its incorporation and each is duly qualified as a
foreign corporation and is in good standing in every jurisdiction in which the
nature of its business or the ownership of its properties requires such
qualification and in which the failure to so qualify would materially adversely
affect the business operations or financial condition of such Subsidiary. The
Company and each Subsidiary has the corporate power to own its properties and
carry on its business as currently being conducted.
3.2 Authorization and Binding Effect. The execution and delivery
by the Company of the Loan Documents to which it is a party, and the performance
by the Company of its obligations thereunder, are within its corporate power,
have been duly authorized by proper corporate action on the part of the Company,
are not in violation of any existing law, rule or regulation of any governmental
agency or authority, any order or decision of any court, the Articles of
Incorporation or By-Laws of the Company or the terms of any agreement,
restriction or undertaking to which the Company is a party or by which it is
bound,
24
and do not require the approval or consent of the shareholders of the Company,
any governmental body, agency or authority or any other person or entity. The
Loan Documents to which the Company is a party, when executed and delivered,
will constitute the valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by bankruptcy, insolvency or
similar laws of general application affecting the enforcement of creditors'
rights and except to the extent that general principles of equity might affect
the specific enforcement of such Loan Documents.
3.3 Financial Statements. The Company has furnished to the
Lenders (a) the consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 1997, and related statements of income, retained
earnings and cash flows for the year ended on that date, certified by Xxxxxx
Xxxxxxxx LLP, and (b) the consolidated balance sheet of the Company and its
Consolidated Subsidiaries dated September 30, 1998 and related statements of
income and retained earnings for the period ended on such date, prepared by the
Company. 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 Company 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 interim statements, to
normal year-end adjustments. There has been no material adverse change in the
condition or prospects of the Company or its Consolidated Subsidiaries,
financial or otherwise, since the date of the most recent financial statement
furnished to the Lenders.
3.4 Litigation. Except for the matters described on Schedule 3.4,
there is no litigation or administrative proceeding pending or, to the knowledge
of the Company, threatened against or affecting the Company or any Subsidiary or
the properties of the Company or any Subsidiary which if determined adversely
would have a material adverse effect upon the business, financial condition or
properties of the Company or such Subsidiary.
3.5 Restricted Payments. The Company has not, since the date of
the most recent financial statements referred to in section 3.3, made any
Restricted Payments except for Restricted Payments permitted under section 6.1.
3.6 Indebtedness; No Default. Neither the Company nor any
Subsidiary has any outstanding Indebtedness, Guaranty Obligations or Lease
Obligations, except those permitted under sections 6.2, 6.3 and 6.4. There
exists no default nor has any act or omission occurred which, with the giving of
notice or the passage of time, would constitute a default under the provisions
of (a) any instrument evidencing such Indebtedness, Guaranty Obligations or
Lease Obligations or any agreement relating thereto or (b) any other agreement
or
25
instrument to which the Company or any Subsidiary is a party and which is
material to the financial condition, business operations or prospects of the
Company or such Subsidiary.
3.7 Ownership of Properties; Liens and Encumbrances. The Company
and each Subsidiary has good and marketable title to all property, real and
personal, reflected on the most recent financial statement of the Company
furnished to the Lenders, and all property purported to have been acquired since
the date of such financial statement, except property sold or otherwise disposed
of in the ordinary course of business subsequent to such date; and all such
property is free of any lien, security interest, mortgage, encumbrance or charge
of any kind or any agreement not to grant a security interest, mortgage or lien,
except Permitted Liens. All owned and leased buildings and equipment of the
Company and each Subsidiary are in good condition, repair and working order
(reasonable wear and tear excepted) and, to the Company's knowledge, conform in
all material respects to all applicable laws, ordinances and regulations.
3.8 Tax Returns Filed. The Company and each Subsidiary has filed
when due all federal and state income and other tax returns which are required
to be filed. The Company has paid or made provision for the payment of all taxes
shown on such returns, and on all assessments received by it to the extent that
such taxes or assessments have become due, except any such taxes or assessments
which are being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP have been established. The Company has
no knowledge of any liabilities which may be asserted against it or any
Subsidiary upon audit of its federal or state tax returns.
3.9 Margin Stock. The Company will not use, directly or
indirectly, any part of the proceeds of any Note for the purpose of purchasing
or carrying, or to extend credit to others for the purpose of purchasing or
carrying, any margin stock within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System, or any amendments thereto. Neither the
Company nor any Subsidiary is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying margin stock.
3.10 Investment Company. The Company is not an "investment
company" or a company controlled by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
3.11 ERISA Liabilities. The Company has no knowledge of the
occurrence of any event with respect to any Plan which could result in a
liability of the Company or any Subsidiary or any member of the Controlled
26
Group to any Plan, the Internal Revenue Service or to the Pension Benefit
Guaranty Corporation other than the payment of contributions in the normal
course or premiums (but not a late payment charge) pursuant to section 4007 of
ERISA. With respect to any Plan there is no (a) accumulated funding deficiency
within the meaning of section 412(a) of the Code; (b) nondeductible contribution
to any Plan within the meaning of section 4972 of the Code; (c) excess
contribution within the meaning of section 4979(c) of the Code which would
result in tax under section 4979(a) of the Code; (d) prohibited transaction
within the meaning of ERISA section 406 which is not exempt under ERISA section
408; (e) failure to make required contributions to any Multiemployer Plan; or
(f) withdrawal or partial withdrawal from any Multiemployer Plan within the
meaning of ERISA sections 4203 and 4205.
3.12 No Burdensome Agreements. Neither the Company nor any
Subsidiary is a party to or bound by any agreement, instrument or undertaking,
or subject to any other restriction (a) which materially adversely affects, or
is likely in the future to so affect, the property, financial condition or
business operations of the Company or any Subsidiary or (b) under or pursuant to
which the Company or any Subsidiary is or will be required to grant (or under
which any other Person may obtain) a security interest or lien upon any of its
property (other than a Permitted Lien), either upon demand or upon the
fulfillment of a condition, with or without demand.
3.13 Trademarks, Etc. The Company and each Subsidiary possesses
adequate trademarks, trade names, copyrights, patents, permits, service marks
and licenses, or rights thereto, for the present and planned future conduct of
their respective businesses substantially as now conducted, without any known
conflict with the rights of others which would result in a material adverse
effect on the Company or any Subsidiary.
3.14 Dump Sites. With respect to the period during which the
Company or any Subsidiary owned or occupied its real estate, and to the
Company's knowledge after reasonable investigation, with respect to the time
before the Company or any Subsidiary owned or occupied its real estate, no
person or entity has caused or permitted materials to be stored, deposited,
treated, recycled or disposed of on, under or at any real estate owned or
occupied by the Company or any Subsidiary, which materials, if known to be
present, would require cleanup, removal or some other remedial action under
Environmental Laws.
3.15 Tanks. There are not now, to the Company's knowledge after
reasonable investigation, tanks or other facilities on, under, or at any real
estate owned or occupied by the Company or any Subsidiary which
27
contain materials which, if known to be present in soils or ground water, would
require cleanup, removal or some other remedial action under Environmental Laws.
3.16 Other Environmental Conditions. There are no conditions
existing which would subject the Company or any Subsidiary to damages,
penalties, injunctive relief or cleanup costs under any Environmental Laws or
which require or are likely to require cleanup, removal, remedial action or
other response pursuant to Environmental Laws by the Company or any Subsidiary.
3.17 Changes in Laws. To the Company's knowledge after reasonable
investigation, there are no proposed or pending changes in Environmental Laws
that would adversely affect the Company or any Subsidiary.
3.18 Environmental Judgments, Decrees and Orders. Neither the
Company nor any Subsidiary is subject to any judgment, decree, order or citation
related to or arising out of Environmental Laws. Except as set forth in Schedule
3.18, neither the Company nor any Subsidiary has been named as a potentially
responsible party by a governmental body or agency in a matter arising under any
Environmental Law.
3.19 Environmental Permits and Licenses. The Company and each
Subsidiary has all permits, licenses and approvals required under Environmental
Laws.
3.20 Year 2000. Except as set forth on Schedule 3.20 attached
hereto, the information technology systems used by the Company and its
Subsidiaries in their business operations accurately process date/time data
(including without limitation calculating, comparing and sequencing) from, into
and between the twentieth and twenty-first centuries, the year 1999 and 2000 and
leap year calculations.
3.21 Accuracy of Information. All information furnished by the
Company to the Lenders is true, 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.
4. Conditions for Borrowing. The Lenders' obligations to make Loans is
subject to the satisfaction, on or before the following Borrowing Dates, of the
following conditions:
28
4.1 On or Before the Date of Execution of this Agreement. The
Agent shall have received the following, all in form, detail and content
satisfactory to the Lenders:
(a) Certified Articles of Incorporation. A copy of the
Articles of Incorporation of the Company, certified as of a recent date by the
Wisconsin Department of Financial Institutions.
(b) Certificates of Status and Good Standing. Certificates
of status and good standing with respect to the Company, issued as of a recent
date by the Secretary of State (or comparable governmental authority) of each
state in which the Company is incorporated or is qualified to transact business
as a foreign corporation.
(c) Closing Certificate. Copies, certified by the Secretary
of the Company to be true and correct and in full force and effect on the
Closing Date, of (i) the By-Laws of the Company; (ii) resolutions of the Board
of Directors of the Company authorizing the execution and delivery of the Loan
Documents to which the Company is a party; and (iii) a statement containing the
names and titles of the officer or officers of the Company authorized to sign
such Loan Documents, together with true signatures of such officers.
(d) Proceedings Satisfactory. Such other documents as the
Lenders may reasonably request; and all proceedings taken in connection with the
transactions contemplated by this Agreement, and all instruments, authorizations
and other documents applicable thereto, shall be satisfactory to the Lenders.
(e) Fees. The fees set forth in section 2.16 hereof.
4.2 On or Before the Effective Date. The Agent shall have
received the following, in form, detail and content satisfactory to the Lenders:
(a) Notes. The Revolving Notes, duly executed by the
Company.
(b) Personal Property Searches. Searches of the appropriate
public offices demonstrating that no security interest, tax lien, judgment lien
or other charge or encumbrance is of record affecting the Company or its
properties except those which are acceptable to the Agent.
(c) Financial Statements. Financial statements of the
Company for the year ended December 31, 1998 and for the quarter ended
29
March 31, 1999 which comply with the requirements of sections 5.1 and 5.2,
respectively.
(d) Termination of GE Capital Financing. Evidence that the
Company has terminated its financing arrangements with GE Capital Corporation
("GECC") as of the Effective Date and paid to GECC all amounts owed thereunder
together with GECC's release of its security interests in and liens upon the
properties of the Company and the agreement of GECC to provide such termination
statements, mortgage satisfactions and other, similar documents as may
reasonably be requested to evidence such release.
(e) Updated Closing Certificate. A certificate dated the
Effective Date and signed by the Secretary or Assistant Secretary of the Company
certifying that (i) the Articles of Incorporation and By-Laws of the Company
have not been amended since the date of the Closing Certificate furnished
pursuant to section 4.1(c), (ii) the Board of Directors' resolution attached to
such Closing Certificate has not been amended or revoked and is in full force
and effect and (iii) the officers of the Company who signed such Closing
Certificate continue to hold the office or offices set forth opposite their
names in such Closing Certificate.
(f) Bring-Down Certificate. A certificate dated the
Effective Date and signed by the President or any Vice President of the Company,
certifying that (i) the representations and warranties of the Company contained
in section 3 hereof are true and correct as of the Effective Date and (ii) no
Default or Event of Default exists as of the Effective Date.
(g) Opinion of Counsel. An opinion from Xxxxx X. Xxxxxx,
Esq., general counsel of the Company, in the form of Exhibit D attached hereto.
(h) Proceedings Satisfactory. Such other documents as the
Lenders may reasonably request; and all proceedings taken in connection with the
transactions contemplated by this Agreement, and all instruments, authorizations
and other documents applicable thereto, shall be satisfactory to the Lenders.
4.3 On or Before Each Subsequent Borrowing Date:
(a) Borrowing Procedure. The Company shall have complied
with the borrowing procedure specified in section 2.3.
30
(b) Representations and Warranties True and Correct. The
representations and warranties contained in section 3 hereof and in the other
Loan Documents shall be true and correct on and as of the relevant Borrowing
Date except (i) that the representations and warranties contained in section 3.3
shall apply to the most recent financial statements delivered pursuant to
sections 5.1 and 5.2 and (ii) for changes contemplated or permitted by this
Agreement.
(c) No Default. There shall exist on that Borrowing Date no
Default or Event of Default.
(d) Proceedings and Documentation. The Lenders shall have
received such instruments and other documents as they may reasonably request in
connection with the making of such Loans, and all such instruments and documents
shall be in form and content satisfactory to the Lenders.
5. Affirmative Covenants. The Company covenants that it will, at all
times on and after the Effective Date until the Lenders' Revolving Loan
Commitment has terminated or expired, and the Notes, and all fees and expenses
payable hereunder, have been paid in full:
5.1 Annual Financial Statement. Furnish to the Agent within 90
days after the end of each fiscal year of the Company a copy for each Lender of
a balance sheet of the Company and its Consolidated Subsidiaries 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, all in reasonable detail
and satisfactory in scope to the Lenders, prepared in accordance with GAAP
applied on a consistent basis, accompanied by the unqualified opinion of a firm
of independent certified public accountants selected by the Company and
satisfactory to the Lenders. Each annual financial statement shall be
accompanied by a written statement from the accounting firm which prepared the
same containing a computation showing whether or not the Company is in
compliance with the financial covenants contained in section 6. All such
financial statements, and the financial statements referred to in section 5.2,
shall be furnished in consolidated form for the Company and all Consolidated
Subsidiaries which it may at the time have.
5.2 Interim Financial Statements. Furnish to the Agent within 45
days after the end of each fiscal quarter of the Company a copy for each Lender
of the consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such fiscal quarter, together with the related
statements of income and retained earnings for the period from the beginning of
31
the fiscal year to the end of such period, prepared in the manner set forth in
section 5.1 for the annual statements, certified, subject to audit and normal
year-end adjustments, to be accurate and complete by an authorized financial
representative of the Company and accompanied by the certificate of such
representative (i) containing computations showing whether or not the Company is
in compliance with the financial covenants set forth in section 6 and (ii) 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 Company proposes to take with respect
thereto.
5.3 Management Letters. Furnish to the Agent, promptly upon
receipt, copies for each Lender of all management letters and detailed audit
reports submitted to the Company by its independent certified public
accountants.
5.4 Other Financial Information. Furnish to the Agent, as soon as
available, copies for each Lender of all reports submitted to the shareholders
of the Company in their capacity as shareholders, and such other financial
information as any Lender may from time to time reasonably request.
5.5 Books and Records; Inspection. Keep and cause each Subsidiary
to keep proper, complete and accurate books of record and account and permit any
representatives of the Agent or any Lender to visit and inspect any of the
properties and examine and copy any of the books and records of the Company or
any Subsidiary at any reasonable time and as often as may reasonably be desired.
5.6 Insurance. Maintain and cause each Subsidiary to maintain
insurance coverage as may be required by law but in any event not less than
insurance coverage, in the forms, amounts and with companies, which would be
carried by prudent management in connection with similar properties and
businesses. Without limiting the foregoing, the Company will and will cause each
Subsidiary to (a) keep all its physical property insured against fire and
extended coverage risks in amounts and with deductibles at least equal to those
generally maintained by businesses engaged in similar activities in similar
geographic areas; (b) maintain all such worker's compensation and similar
insurance as may be required by law; and (c) maintain, in amounts and with
deductibles at least equal to those generally maintained by businesses engaged
in similar activities in similar geographic areas, general public liability
insurance against claims for bodily injury, death or property damage occurring
on, in or about the properties of the Company or such Subsidiary, business
interruption insurance and product liability insurance.
32
5.7 Condition of Property. Keep and cause each Subsidiary to keep
its properties (whether owned or leased) in good condition, repair and working
order (reasonable wear and tear excepted).
5.8 Payment of Taxes. Pay and discharge, and cause each
Subsidiary to pay and discharge, all lawful taxes, assessments and governmental
charges upon it or against its properties prior to the date on which penalties
are attached thereto, unless and to the extent only that the same shall be
contested in good faith and by appropriate proceedings by the Company or the
appropriate Subsidiary and appropriate reserves with respect thereto are
established and maintained in accordance with GAAP.
5.9 Compliance with Law. Do and, except as permitted under
section 6.6, cause each Subsidiary to do all things necessary to (a) maintain
its corporate existence in its state of incorporation and maintain its
qualification as a foreign corporation in any other state where the ownership of
property or the conduct of business make qualification necessary and where the
failure to so qualify would have a material adverse effect upon its business,
operations or financial condition, (b) preserve and keep in full force and
effect its rights and franchises necessary to continue its business and (c)
comply with all applicable laws, regulations and ordinances, including all
applicable Environmental Laws, except those being contested in good faith and
involving no possibility of criminal liability, if and to the extent that the
failure to so comply would have a material adverse affect upon the Company and
its Subsidiaries taken as a whole.
5.10 ERISA Certificate. Comply and cause each Subsidiary to
comply with all applicable requirements of ERISA for each Plan and furnish to
the Agent, as soon as possible and in any event within 30 days after the Company
shall have obtained knowledge that a Reportable Event has occurred with respect
to any Plan, a certificate of an officer of the Company setting forth the
details as to such Reportable Event and the action which the Company proposes to
take with respect thereto, and a copy of each notice of a Reportable Event sent
to the Pension Benefit Guaranty Corporation by the Company and, with respect to
a Multiemployer Plan, furnish to the Agent as soon as possible after the Company
receives notice or obtains knowledge that the Company or any member of the
Controlled Group may be subject to withdrawal liability, or required to post a
bond to avoid such liability, to a Multiemployer Plan, a certificate of an
officer of the Company setting forth the details as to such event and the
actions which the Company plans to take with respect thereto.
5.11 Compliance with Other Loan Documents. Timely comply with all
of its obligations under the other Loan Documents.
33
5.12 Notice of Default or Claimed Default. Furnish to the Agent
(a) immediately upon becoming aware of any Default or Event of Default, a
written notice specifying the nature and period of existence thereof and what
action the Company is taking or proposes to take with respect thereto; (b)
immediately upon becoming aware that the holder of any other Indebtedness issued
or assumed by the Company or any Subsidiary, or the lessor under any lease as to
which the Company or any Subsidiary is the lessee, has given notice or has taken
any action with respect to a claimed default thereunder, or under any agreement
under which any such Indebtedness was issued or secured, a written notice
specifying the notice given or action taken, the nature of the claimed default
and what action the Company is taking or proposes to take with respect thereto;
(c) immediately upon receipt, copies of any correspondence, notice, pleading,
citation, indictment, complaint, order, decree or other document from any
governmental authority or court asserting or alleging a circumstance or
condition which requires or may require a financial contribution by the Company
or a cleanup, removal, remedial action or other response by or on the part of
the Company or any Subsidiary under Environmental Laws or which seeks damages or
civil, criminal or punitive penalties from the Company or any Subsidiary for an
alleged violation of Environmental Laws which, in any such case, is likely to
have a material adverse effect on the financial condition or business operations
of the Company or any Subsidiary; and (d) written notice of any condition or
event which would make the warranties contained in section 3 inaccurate, as soon
as the Company becomes aware of such condition or event.
6. Negative Covenants. The Company covenants that, without the prior
written consent of the Majority Lenders, it will not, and will not permit any
Subsidiary to, at any time on or after the Effective Date until the Lenders'
Revolving Loan Commitment has terminated or expired, and the Notes, and all fees
and expenses payable hereunder, have been paid in full:
6.1 Restricted Payments. Make any Restricted Payments except that
so long as no Default or Event of Default exists the Company may make Restricted
Payments if, after giving effect thereto, the aggregate amount of Restricted
Payments made during the period after December 31, 1997, to and including the
date of making the Restricted Payment in question, does not exceed 50% of the
Company's Net Earnings for such period computed on a cumulative basis for said
entire period.
6.2 Limitations on Indebtedness. Create, incur, assume or permit
to exist any Indebtedness except (a) Indebtedness owed to the Lenders hereunder;
(b) Indebtedness secured by Permitted Liens; (c) Subordinated Debt; (d)
Indebtedness permitted under section 6.7(e); and (e) Indebtedness arising in
connection with a Permitted Swap Contract.
34
6.3 Limitations on Guaranty Obligations. Create, incur, assume or
permit to exist any Guaranty Obligations except for (a) the endorsement of
negotiable or nonnegotiable instruments for collection in the ordinary course of
business, and (b) Guaranty Obligations in favor of a Lender; and (c) Guaranty
Obligations described on Schedule 6.3 existing on the date of this Agreement,
provided that the principal amount thereof shall not be increased.
6.4 Limitations on Lease Obligations. Permit the aggregate Lease
Obligations of the Company and its Subsidiaries to exceed $1,000,000 due in any
fiscal year of the Company.
6.5 Limitations on Liens and Encumbrances. Create, assume or
permit to exist any mortgage, security interest, lien or charge of any kind,
including any restriction against mortgages, security interests, liens or
charges upon any of its other property or assets, whether now owned or hereafter
acquired, except for Permitted Liens.
6.6 Limitations on Mergers, Etc. Merge or consolidate with or
into any other corporation or entity or sell, lease, transfer or otherwise
dispose of in a single transaction or a series of transactions, all or a
substantial part of its assets (other than sales made in the ordinary course of
business), except that any Subsidiary may merge into, or transfer all or a
substantial part of its assets to the Company or to a Subsidiary wholly owned by
the Company.
6.7 Limitations on Acquisitions, Advances and Investments.
Acquire stock issued by a corporation, all or substantially all of the assets of
any Person, an ownership interest in any limited liability company or any
partnership or joint venture interest or make any loan, advance or extension of
credit to any Person except (a) the purchase of United States government bonds
and obligations; (b) extensions of credit to customers in the ordinary course of
business of the Company or any Subsidiary; (c) the purchase of bank certificates
of deposit issued by a bank having a long-term certificate of deposit rating of
A or better from Standard & Poor's Rating Services (or an equivalent rating from
another national rating agency), (d) commercial paper with a maturity not
exceeding 90 days; (e) investments of the Company in any Subsidiary in existence
on the Closing Date, and loans and advances to wholly owned Subsidiaries of the
Company and advances by any Subsidiary to the Company or to another wholly owned
Subsidiary; (f) deposits in deposit accounts at banks; (g) investments in bank
repurchase agreements; (h) loans and advances to employees and agents in the
ordinary course of business for travel and entertainment expenses and similar
items; (i) partnership and joint ventures entered into in the ordinary course of
business; (j) nonhostile acquisitions of the assets or 100% of the stock or
other
35
ownership interest of a Person; and (k) the purchase by the Company of its stock
to the extent permitted under section 6.1.
6.8 Lines of Business. Engage or permit any Subsidiary to engage
in any business other than those in which it is now engaged and any business
directly related thereto if, as a result thereof, the general nature of the
businesses engaged in by the Company and its Subsidiaries on a consolidated
basis would be substantially changed from the general nature of their businesses
as of the Closing Date.
6.9 Sales of Receivables. Discount or sell with recourse, or sell
for less than the face amount thereof, any of its notes or accounts receivable.
6.10 Sales of Subsidiaries. Sell or otherwise dispose of any
stock (or other ownership interest), or securities convertible into stock (or
other ownership interest), of any Subsidiary except to the Company or to a
Subsidiary wholly owned by the Company.
6.11 Sale and Leaseback. Sell or transfer any fixed assets and
then or thereafter rent or lease as lessee any such assets.
6.12 Indebtedness to Capitalization Ratio. Permit the
Indebtedness to Capitalization Ratio to exceed 0.55 to 1.0 at any time.
6.13 Interest Coverage Ratio. Permit the Interest Coverage Ratio
to be less than 3.00 to 1.00 at any time.
6.14 Indebtedness to EBITDA Ratio. Permit the Indebtedness to
EBITDA Ratio to exceed 2.00 to 1.0 at any time.
6.15 Transactions with Affiliates. Enter into or be a party to
any transaction with any Affiliate except as otherwise provided herein or in the
ordinary course of business and upon fair and reasonable terms which are no less
favorable than a comparable arm's length transaction with an entity which is not
an Affiliate.
7. Events of Default; Remedies.
7.1 Events of Default. The occurrence of any of the following
shall constitute an Event of Default:
(a) Failure to Pay Note. The Company fails to pay (a)
principal on any Note when due, whether at a stated payment date, or a date
36
fixed by the Company for prepayment or by acceleration, or (b) interest on any
Note, or any fee or other amount payable hereunder, when due and such default in
payment of interest, fees or other amounts continues uncured for a period of
five days; or
(b) Falsity of Representations and Warranties. Any
representation or warranty made in any Loan Document or in any writing furnished
in connection with or pursuant to this Agreement or any other Loan Document is
false in any material respect on the date as of which made or as of which the
same is to be effective; or
(c) Breach of Covenants. The Company fails to comply with
any term, covenant or agreement contained in section 5 or 6 hereof; or
(d) Breach of Other Provisions. The Company fails to comply
with any other agreement contained herein and such default continues for a
period of 30 days after written notice to the Company from the Agent; or
(e) Default Under Other Agreements. The Company or any
Subsidiary fails to pay when due any other Indebtedness issued or assumed by the
Company or such Subsidiary or fails to comply with the terms of any agreement
under which such Indebtedness was created and such default continues beyond the
period of grace, if any, therein provided; or
(f) Entry of Final Judgments. A final judgment is entered
against the Company or any Subsidiary which, together with all unsatisfied final
judgments entered against the Company and all Subsidiaries, exceeds the sum of
$250,000, and such judgment shall remain unsatisfied or unstayed for a period of
60 days after the entry thereof; or
(g) ERISA Liability. Any event in relation to any Plan which
the Lenders determine in good faith could result in any of the occurrences set
forth in section 3.11 above; or
(h) Default Under Other Loan Documents. An "Event of
Default" (as defined therein) shall occur under any other Loan Document or the
party to any other Loan Document fails to timely comply with any term, covenant
or agreement contained therein; or
(i) Change In Control. Any Change in Control shall occur; or
37
(j) Insolvency, Failure to Pay Debts or Appointment of
Receiver, Etc. The Company or any Subsidiary becomes insolvent or the subject of
state insolvency proceedings, fails generally to pay its debts as they become
due or makes an assignment for the benefit of creditors; or a receiver, trustee,
custodian or other similar official is appointed for, or takes possession of any
substantial part of the property of, the Company or any Subsidiary; or
(k) Subject of United States Bankruptcy Proceedings. The
taking of corporate action by the Company or any Subsidiary to authorize such
organization to become the subject of proceedings under the United States
Bankruptcy Code; or the execution by the Company or any Subsidiary of a petition
to become a debtor under the United States Bankruptcy Code; or the filing of an
involuntary petition against the Company or any Subsidiary under the United
States Bankruptcy Code which remains undismissed for a period of 60 days; or the
entry of an order for relief under the United States Bankruptcy Code against the
Company or any Subsidiary.
7.2 Remedies. Upon the occurrence of any of the events described
in sections 7.1(a) through 7.1(j), inclusive, the Agent shall, at the direction
of the Majority Lenders, at the same or different times, take any of the
following actions:
(a) declare the Lenders' Revolving Loan Commitments to be
terminated, whereupon the Lenders' Revolving Loan Commitments shall immediately
terminate; or
(b) declare the Loans, and all accrued interest thereon, to
be immediately due and payable, whereupon the Loans, all accrued interest
thereon and all other amounts owing or payable under the Loan Documents shall be
immediately due and payable without presentment, demand, protest or notice of
any kind, all of which are expressly waived by the Company.
Promptly following the making of such declaration, the Agent
shall give notice thereof to the Company and each Lender but the failure to give
such notice shall not impair any of the effects of such declaration. Upon the
occurrence of any of the events described in section 7.1(k), the Lenders'
Revolving Loan Commitments shall immediately terminate, and the Notes, together
with accrued interest thereon and all other amounts owing or payable under the
Loan Documents shall be immediately due and payable without presentment, demand,
protest or notice of any kind, all of which are expressly waived by the Company.
8. The Agent.
38
8.1 Appointment and Duties of the Agent. The Lenders hereby
appoint Firstar, subject to the terms and conditions of this section 8, as the
Agent for the Lenders under and for purposes of this Agreement and the other
Loan Documents. Each of the Lenders hereby irrevocably, authorizes, and directs
the Agent to take such action on its behalf and to exercise such powers
hereunder as are delegated to the Agent herein, together with such powers as are
reasonably incident thereto, in connection with the administration of and
enforcement of any rights or remedies with respect to this Agreement and the
other Loan Documents. The Agent shall use reasonable diligence to examine the
face of each document received by it hereunder to determine whether such
document, on its face, appears to be what it purports to be. However, the Agent
shall not be under any duty to examine into or pass upon the validity or
genuineness of any documents received by it hereunder and the Agent shall be
entitled to assume that any of the same which appears regular on its face is
genuine and valid and what it purports to be.
8.2 Discretion and Liability of the Agent. Subject to sections
8.3, 8.5 and 9.12 hereof, the Agent shall be entitled to use its discretion with
respect to exercising or refraining from exercising any rights which may be
vested in it by, or with respect to, taking or refraining from taking any action
or actions which it may be able to take under or in respect of this Agreement
and the other Loan Documents. Neither the Agent nor any of its directors,
officers, employees, agents or representatives shall be liable for any action
taken or not taken under any Loan Document in the absence of gross negligence or
willful misconduct.
8.3 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to a failure by the Company to pay principal, interest or fees
required to be paid to the Agent, unless the Agent has actual knowledge of such
facts or has received notice from a Lender or the Company in writing that such
Lender or the Company considers that a Default or Event of Default has occurred
and is continuing and which specifies the nature thereof.
If the Agent shall acquire actual knowledge of or receive
notice from a Lender or the Company that a Default or Event of Default has
occurred, the Agent shall promptly notify the Lenders and the Company of such
Default or Event of Default.
8.4 Consultation. The Agent in good faith may consult with legal
counsel or other advisors selected by it and shall be entitled to fully rely
upon any opinion of such counsel or other advisor in connection with any action
taken or not taken by the Agent in accordance with such opinion.
39
8.5 Communications To and From the Agent. Upon any occasion
requiring or permitting an approval, consent, waiver, election or other action
on the part of the Lenders, unless action by the Agent alone is expressly
permitted hereunder, action shall be taken by the Agent for and on behalf or for
the benefit of the Lenders upon the direction of the Majority Lenders or, if
required under section 9.12, all the Lenders. The Company may rely upon any
communication from the Agent hereunder and need not inquire into the propriety
of or authorization for such communication. Upon receipt by the Agent from the
Company or any Lender of any communication calling for an action on the part of
the Lenders, the Agent will, in turn, promptly inform the other Lenders in
writing of the nature of such communication. In addition, the Agent shall
forward to each Lender, promptly after receipt, copies of information provided
by the Company pursuant to the requirements of the Loan Documents including,
without limitation, the financial statements referred to in sections 5.1 and
5.2, and the notices referred to in section 5.12.
8.6 Limitations of Agency. The Agent will act under the Loan
Documents solely as the agent of the Lenders and only to the extent specifically
set forth in the Loan Documents and will, under no circumstances, be considered
to be a fiduciary of any nature whatsoever in respect of any other Person. The
relationship between the Agent and the Lenders is that of agent and principal
only and the Agent shall not be deemed to be a trustee or fiduciary for any
Lender. The Agent may generally engage in any kind of banking or trust business
with the Company as if it were not the Agent.
8.7 No Representation or Warranty. No Lender (including the
Agent) makes to any other Lender any representation or warranty, express or
implied, or assumes any responsibility with respect to the execution, validity
or enforceability of this Agreement or the other Loan Documents.
8.8 Lender Credit Decision. Each Lender acknowledges that it has,
independent of and without reliance upon any other Lender (including the Agent)
or any information provided by any other Lender (including the Agent) and based
upon the financial statements of the Company and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independent of and without reliance upon any other Lender (including the
Agent) and based upon such documents and information as it shall deem
appropriate at that time, continue to make its own credit decision in taking or
not taking action under this Agreement and the other Loan Documents.
8.9 Indemnity. Each Lender hereby indemnifies (which indemnity
shall survive the termination of this Agreement) the Agent, pro rata
40
according to such Lender's Percentage, from and against any and all liabilities,
obligations, losses, damages, claims, costs, or expenses of any kind or nature
whatsoever including reasonable attorneys' fees which may at any time be imposed
on, incurred by, or asserted against, the Agent in any way related to or arising
out of this Agreement or the other Loan Documents and as to which the Agent is
not reimbursed by the Company; provided, however, that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted solely from the Agent's
gross negligence or willful misconduct. The Agent shall not be required to take
any action hereunder or under any other Loan Document, or to prosecute or defend
any suit in respect of the transactions contemplated hereby, unless it is
indemnified hereunder to its satisfaction. If any indemnity in favor of the
Agent shall be or become, in the Agent's determination, inadequate, the Agent
may call for additional indemnification from the Lenders and cease to do the
acts indemnified against hereunder until such additional indemnity is given.
8.10 Resignation or Removal of Agent; Successor Agent. The Agent
may resign as such at any time upon at least 30 days' prior notice to the
Company and all Lenders. The Agent may be removed at any time by the Majority
Lenders upon at least 30 days' prior notice by the Majority Lenders to the
Company and the Agent, but only for cause consisting of its gross negligence or
willful misconduct or following a declaration of insolvency by the appropriate
regulators. If the Agent at any time shall resign or be removed, the Majority
Lenders may appoint another Lender as a successor Agent which shall thereupon
become the Agent hereunder. If no successor Agent shall have been so appointed
by the Majority Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent gives notice of resignation, then the retiring
Agent may, on behalf of the Lenders, appoint the successor Agent, which shall be
one of the Lenders. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall be entitled to receive from the
retiring Agent such documents of transfer and such assignments as such successor
Agent may reasonably request, and shall thereupon succeed to and become vested
with all rights, powers, privileges and duties of the retiring Agent and the
retiring Agent shall be discharged from its duties and obligations as Agent
under this Agreement.
9. Miscellaneous.
9.1 Survival of Representations and Warranties. The Company's
representations and warranties contained in section 3 hereof shall survive
closing and execution and delivery of the Notes.
41
9.2 Indemnification. The Company agrees to defend, indemnify and
hold harmless the Agent, the Lenders and their respective directors, officers,
employees and agents from and against any and all loss, cost, expense or
liability (including reasonable attorneys' fees) incurred in connection with any
and all claims or proceedings (whether brought by a private party or
governmental agency) as a result of, or arising out of or relating to: (a)
bodily injury, property damage, abatement or remediation, environmental damage
or impairment or any other injury or damage resulting from or relating to any
hazardous or toxic substance or contaminated material (as determined under
Environmental Laws) located on or migrating into, from or through property
previously, now or hereafter owned or occupied by the Company, which the Agent
or any Lender may incur due to the making of the Loans, or otherwise;
(b) any transaction financed or to be financed, in whole or
in part, directly or indirectly, with the proceeds of any Loan; or
(c) the entering into, performance of and exercise of their
rights under this Agreement or any other Loan Document by the Agent, and the
Lenders.
This indemnity will survive the repayment of the Loans.
9.3 Expenses. The Company agrees, whether or not the transaction
hereby contemplated shall be consummated, to pay on demand (a) all out-of-pocket
expenses incurred by the Agent or any Lender in connection with the negotiation,
execution, administration, amendment or enforcement of this Agreement and the
other Loan Documents, including reasonable counsel fees and expenses (provided
that the maximum amount of fees and expenses incurred by each Lender in
connection with the negotiation, execution, administration and amendment of this
Agreement and the other Loan Documents to be reimbursed by the Company shall not
exceed $1,000), (b) any taxes (including any interest and penalties relating
thereto) payable by any Lender (other than taxes based upon such Lender's net
income) on or with respect to the transactions contemplated by this Agreement
(the Company hereby agreeing to indemnify each Lender with respect thereto) and
(c) all out-of-pocket expenses, including reasonable counsel fees and expenses,
incurred by the Agent or any Lender in connection with any litigation,
proceeding or dispute in any way related to the Agent's and the Lenders'
relationships with the Company, whether arising hereunder or otherwise, other
than in connection with a successful action brought by the Company against a
42
Lender for such Lender's breach of its obligations to the Company. The
obligations of the Company under this section will survive payment of the Loans.
9.4 Notices. All notices provided for herein shall be in writing
and shall be (a) delivered; (b) sent by express or first-class mail; or (c) sent
by facsimile transmission and confirmed in writing provided to the recipient in
a manner described in (a) or (b), and, if to the Agent or a Lender, addressed to
it at the address set forth below its signature, and if to the Company,
addressed to it at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxx, Vice President Law/Finance, Facsimile No.
000-000-0000, or to such other address with respect to any party as such party
shall notify the others in writing; such notices shall be deemed given when
delivered or mailed or so transmitted.
9.5 Assignments and Participations.
(a) Any Lender may, with the written consent of the Company
(at all times other than during the existence of an Event of Default) and the
Agent, which consents shall not be unreasonably withheld, at any time assign and
delegate to one or more Eligible Assignees (provided that no written consent of
the Company or the Agent shall be required in connection with any assignment and
delegation by a Lender to an Eligible Assignee that is an Affiliate of such
Lender) (each an "Assignee") all, or any ratable part of all, of the Loans, the
Revolving Loan Commitment and the other rights and obligations of such Lender
hereunder, in a minimum amount of $10,000,000; provided, however, that the
Company and the Agent may continue to deal solely and directly with such Lender
in connection with the interest so assigned to an Assignee until (i) written
notice of such assignment, together with payment instructions, addresses and
related information with respect to the Assignee, shall have been given to the
Company and the Agent by such Lender and the Assignee; (ii) such Lender and its
Assignee shall have delivered to the Company and the Agent an Assignment and
Acceptance in the form of Exhibit E (an "Assignment and Acceptance") together
with any Note subject to such assignment and (iii) the assignor Lender or
Assignee has paid to the Agent a processing fee in an amount specified by the
Agent not exceeding $3,500 and has agreed to indemnify and hold the Company
harmless from and against any and all costs, expenses and liabilities resulting
from such assignment.
(b) From and after the date that the Agent notifies the
assignor Lender that it has received (and provided its consent with respect to)
an executed Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the rights and obligations of a
Lender
43
under the Loan Documents, and (ii) the assignor Lender shall, to the extent that
rights and obligations hereunder and under the other Loan Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by
the Agent that it has received an executed Assignment and Acceptance and payment
of the processing fee, (and provided that it consents to such assignment in
accordance with subsection 9.5(a)), the Company shall execute and deliver to the
Agent, a new Note evidencing such Assignee's assigned Revolving Loan Commitment
and, if the assignor Lender has retained a portion of its Loans and its
Revolving Loan Commitment, a replacement Note in the principal amount of the
Revolving Loan Commitment retained by the assignor Lender (such Note to be in
exchange for, but not in payment of, the Note held by such Lender). Immediately
upon each Assignee's making its processing fee payment under the Assignment and
Acceptance, this Agreement shall be deemed to be amended to the extent, but only
to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Revolving Loan Commitments arising therefrom. The
Revolving Loan Commitment allocated to each Assignee shall reduce the Revolving
Loan Commitment of the assigning Lender pro tanto.
(d) Any Lender may, at its option, with the written consent
of the Company (at all times other than during the existence of an Event of
Default) sell to another financial institution or institutions participating
interests in a Note payable to such Lender and, in connection with each such
sale, and thereafter, disclose to the purchaser or prospective purchaser of each
such interest financial and other information concerning the Company. The
Company agrees that if amounts outstanding under this Agreement or a Note are
due and unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each such purchaser shall be deemed
to have, to the extent permitted by applicable law, the right of setoff in
respect of its participating interest in amounts owing under this Agreement and
such Note to the same extent as if the amount of its participating interest were
owed directly to it. The Company further agrees that each such purchaser shall
be entitled to the benefits of sections 2.13 and 2.14 with respect to its
participation in the selling Lender's Revolving Loan Commitment; provided that
no such purchaser shall be entitled to receive any greater amount pursuant to
that section than the Lender would have been entitled to receive if no such sale
had occurred.
9.6 Titles. The titles of sections in this Agreement are for
convenience only and do not limit or construe the meaning of any section.
44
9.7 Parties Bound; Waiver. The provisions of this Agreement shall
inure to the benefit of and be binding upon any successor of any of the parties
hereto and shall extend and be available to any holder of a Note; provided that
the Company's rights under this Agreement are not assignable. No delay on the
part of the Agent or any Lender in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, and no single or partial exercise
of any right, power or privilege hereunder shall preclude other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein specified are cumulative and not exclusive of any
rights or remedies which the Agent or a Lender would otherwise have.
9.8 Governing Law. This Agreement is being delivered in and shall
be deemed to be a contract governed by the laws of the State of Wisconsin and
shall be interpreted and enforced in accordance with the laws of that state
without regard to the principles of conflicts of laws.
9.9 Submission to Jurisdiction; Service of Process. As a material
inducement to the Agent and the Lenders to enter into this Agreement:
(a) THE COMPANY AGREES THAT ALL ACTIONS OR PROCEEDINGS IN
ANY MANNER RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS MAY BE BROUGHT ONLY IN COURTS OF THE STATE OF WISCONSIN LOCATED IN
MILWAUKEE COUNTY OR THE FEDERAL COURT FOR THE EASTERN DISTRICT OF WISCONSIN AND
THE COMPANY CONSENTS TO THE JURISDICTION OF SUCH COURTS. THE COMPANY WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH COURT AND ANY
RIGHT IT MAY HAVE NOW OR HEREAFTER HAVE TO CLAIM THAT ANY SUCH ACTION OR
PROCEEDING IS IN AN INCONVENIENT COURT; and
(b) The Company consents to the service of process in any
such action or proceeding by certified mail sent to the address specified in
section 9.4.
Nothing contained herein shall affect the right of the Agent
or the Lenders to serve process in any other manner permitted by law.
9.10 Waiver of Jury Trial. THE COMPANY, THE AGENT AND THE LENDERS
HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THE RIGHT EACH OF THEM MAY HAVE TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM BASED ON OR ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, ANY COURSE OF
CONDUCT, COURSE OF DEALING,
45
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ANY OTHER ACTION OF ANY PARTY. THIS
PROVISION IS A MATERIAL INDUCEMENT TO THE AGENT AND THE LENDERS TO ENTER INTO
THIS AGREEMENT.
9.11 Limitation of Liability. THE COMPANY, THE AGENT AND THE
LENDERS HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR RECOVER FROM ANY
OTHER PARTY ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES, OF WHATEVER NATURE, OTHER THAN ACTUAL DAMAGES.
9.12 Amendments. No provision of this Agreement or the other Loan
Documents may be amended, modified, supplemented, changed, waived, discharged or
terminated unless the consent of the Majority Lenders and the Company is
obtained in writing, provided, however, that no such amendment, modification or
waiver which would:
(a) Modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Majority Lenders shall be effective
unless consented to by each Lender;
(b) modify this section 9.12, change the definition of
"Majority Lenders," increase any Revolving Loan Commitment or the Percentage of
any Lender, or reduce any fees payable hereunder, shall be effective unless
consented to by each Lender;
(c) extend the scheduled due date for the payment of
principal or interest on any Note (or reduce the principal amount of or rate of
interest on any Note) shall be made without the consent of the holder of such
Note;
(d) release any collateral (except as permitted herein or in
the applicable Loan Document) shall be effective unless consented to by each
Lender; or
(e) adversely affect the interests, rights, or obligations
of the Agent shall be made without the consent of the Agent.
9.13 Counterparts. This Agreement and any amendment hereof may be
executed in several counterparts, each of which shall be executed by the Agent
and the Company and be deemed to be an original and all of which together shall
constitute one instrument. This Agreement shall become effective when
counterparts hereof executed on behalf of the Company, the Agent and each
46
Lender shall have been received by the Agent and notice thereof shall have been
given by the Agent to the Company and each Lender.
9.14 Entire Agreement. This Agreement and the other Loan
Documents shall constitute the entire agreement of the parties pertaining to the
subject matter hereof and supersedes all prior or contemporaneous agreements and
understandings of the parties in connection therewith.
XXXXXX CO., INC.
BY______________________________
Its____________________________
Revolving
Loan
Commitment Percentage
---------- ----------
$25,000,000 25% FIRSTAR BANK MILWAUKEE, N.A.,
as the Agent and a Lender
BY_____________________________
Its___________________________
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Facsimile No.: 000-000-0000
47
Revolving
Loan
Commitment Percentage
---------- ----------
$17,500,000 17.5% THE FIRST NATIONAL BANK OF CHICAGO
BY_____________________________
Its___________________________
Address: Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx XX0-0000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxx
Facsimile No.: 000-000-0000
$17,500,000 17.5% U.S. BANK NATIONAL ASSOCIATION
BY_____________________________
Its___________________________
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Facsimile No.: 000-000-0000
$15,000,000 15% XXXXXX TRUST AND SAVINGS BANK
BY_____________________________
Its___________________________
Address: 000 Xxxx Xxxxxx Xxxxxx
00
00xx Xxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Sunny X. Xxxxxxx
Facsimile No.: 000-000-0000
$15,000,000 15% LASALLE NATIONAL BANK
BY_____________________________
Its___________________________
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Facsimile No.: 000-000-0000
$10,000,000 10% ST. XXXXXXX BANK, F.S.B.
BY_____________________________
Its___________________________
Address: 00000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Tans
Facsimile No.: 000-000-0000
------------- --------
$100,000,000 100%
==========================
49
SCHEDULE 1.1
Existing Liens and Security Interests
The liens and security interests arising under the March 9, 1998 Amended
and Restated Credit Agreement among Xxxxxx Co., Inc. and General Electric
Capital Corporation, as amended.
April 24, 1997 Escrow Agreement between Xxxxxx Co., Inc. and Trinity
Fitting and Flange Group, Inc. with Bank One Wisconsin Trust Company as escrow
agent.
SCHEDULE 3.1
Subsidiaries
1. Xxxxx Machine Co., Inc., a Nevada corporation
2. McLad Corporation, a Nevada corporation
SCHEDULE 3.4
Litigation
None
SCHEDULE 3.18
Environmental Matters
Xxxxxx Co., Inc. has been named as a potentially responsible party at the
following locations:
Site Status
---- ------
1) Hunts Superfund Site Consent order signed, site
Caledonia, WI remedied, monitoring continuing.
2) Xxxxxxxxx Superfund Site Site remedied, owner has
Franklin, WI monitoring responsibility.
3) ILCO Superfund Site Xxxxxx settled as a De Minimis
Leeds, AL party and dismissed.
4) Marina Cliffs Superfund Site Ladish settled as a De Minimis
South Milwaukee, WI party and dismissed.
Former subsidiary of Xxxxxx Co., Inc. was named as a potentially responsible
party at the Operating Industries Inc. site in California. The subsidiary was
liquidated with no additional assets.
SCHEDULE 3.20
Year 2000 Compliance
Xxxxxx Co., Inc. is in the process of changing its information technology system
and believes that the new system will be Year 2000 compliant.
SCHEDULE 6.3
Guaranty Obligations
Xxxxxx Co., Inc. has guaranteed the performance of its wholly-owned subsidiary,
Xxxxx Machine Co., Inc. ("Xxxxx") in connection with the purchase by Xxxxx of
the business and assets of Adco Manufacturing, Incorporated.
Xxxxxx Co., Inc. has guaranteed certain aspects of the performance and condition
of the assets of its former Industrial Products Division ("IPD") under the sale
of IPD to Trinity Fitting and Flange Company, Inc.
X-2
