1
Exhibit 10.5(a)
1997 Plexus 10-K
PLEXUS CORP.
00 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000
CREDIT AGREEMENT
March 20, 1997
Firstar Bank Milwaukee,
National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Bank One, Wisconsin
000 Xxxx Xxxxxxxxx Xxxxxx
P.O. Box 2033
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies/Gentlemen:
Plexus Corp., a Wisconsin corporation with its principal offices located in the
City of Neenah, Wisconsin, (the "Company"), hereby requests that each of you
(collectively the "Banks" and individually a "Bank") agree to lend the Company
the amount of the commitment (the "Commitment") set opposite your name below,
to wit:
Name of Bank Amount Percent of Total
------------ ------ ----------------
Firstar Bank Milwaukee,
National Association $18,000,000 45%
Xxxxxx Trust and Savings
Bank $15,000,000 37.5%
Bank One, Wisconsin $ 7,000,000 17.5%
----------- -----
$40,000,000 100%
2
The failure of any one or more of the Banks to lend in accordance with its
Commitment shall not relieve the other Banks of their several obligations
hereunder, but no Bank shall be liable in respect to the obligation of any
other Bank hereunder or be obligated in any event to lend in excess of its
Commitment. Such loans shall be on the terms and conditions set forth below:
ARTICLE I
LOANS AND NOTES
1.1 Revolving Credit. From time to time prior to July 31, 2002 or the
earlier termination in full of the Commitments (in either case the "Termination
Date"), and subject to all of the terms and conditions of this Agreement, the
Company may obtain loans from each of the Banks, pro rata up to the amount of
such Bank's outstanding Commitment, repay such loans and reborrow hereunder.
Each loan from each Bank shall be in a minimum principal amount of $100,000 or
a multiple of $50,000 in excess of such amount (except as provided in Section
2.1 with respect to Adjusted LIBOR Rate Loans), and shall be evidenced by a
single promissory note of the Company (a "Revolving Credit Note" or a "Note")
in the form of Exhibit 1.1 annexed hereto, payable to the order of the lending
Bank. The Notes shall be executed by the Company and delivered to the Banks
prior to the initial loans. Although the Notes shall be expressed to be
payable in the full amounts specified above, the Company shall be obligated to
pay only the amounts actually disbursed to or for the account of the Company,
together with interest on the unpaid balance of sums so disbursed which remains
outstanding from time to time, at the rates and on the dates specified herein
or in the Notes, together with the other amounts provided herein.
1.2 Use of Proceeds. The Company represents, warrants and agrees that:
(a) The proceeds of the loans made hereunder will be used solely for
the following purposes: (i) contemporaneously with the making of the
initial loans hereunder, except as otherwise provided in Section 1.7, the
proceeds of such initial loans shall be used to the extent necessary to
pay all indebtedness outstanding under the Amended and Restated Revolving
Credit Agreement dated as of March 18, 1996 among Electronic Assembly
Corporation and the Banks, as amended (the "EAC Credit Agreement"); and
(ii) all other proceeds shall be used for working capital and other lawful
corporate purposes.
(b) No part of the proceeds of any loan made hereunder will be used to
"purchase" or "carry" any "margin stock" or to extend credit to others
for the purpose of "purchasing" or "carrying" any "margin stock" (as such
terms are defined in the Regulation U of the Board of Governors of the
Federal Reserve System), and the assets of the Company and its
Subsidiaries do not include, and neither the Company nor any Subsidiary
has any present intention of acquiring, any such security.
2
3
1.3 Agent's Fees. The Company shall pay to the Agent, for the Agent's own
account, such fees as the Company and the Agent may agree upon in writing for
the Agent's services as such hereunder (the "Agent's Fees").
1.4 Commitment Fee. The Company shall pay to the Agent for the account of
each Bank a commitment fee computed at the rate of 1/8 of 1% per annum on the
difference existing from time to time between (a) the amount of such Bank's
Commitment (as reduced pursuant to section 1.5), and (b) the outstanding unpaid
principal balance of sums disbursed to the Company by such Bank hereunder.
Such commitment fees shall accrue for the period from the date of this
Agreement to the Termination Date, and shall be payable quarterly in arrears on
the later of (i) the twentieth day of the first month in each calendar quarter
or (ii) five days after the Company's receipt of an invoice for such fees from
the Agent.
1.5 Termination or Reduction of the Commitments. The Company shall have
the right, upon five Business Days' prior written notice to each Bank, to
ratably reduce in part the Commitments on any interest payment date, provided,
however, that each partial reduction of the Commitment of each Bank shall be in
the amount of $1,000,000 or an integral multiple thereof, and provided,
further, that no reduction shall reduce the Commitment of any Bank to an amount
less than the aggregate amount of the loans of such Bank outstanding hereunder
at the time. The entire Commitments of all of the Banks may be terminated in
whole at any time upon five Business Days' prior written notice to each Bank.
1.6 Optional Prepayment. The Notes may be prepaid in whole or in part at
the option of the Company on any interest payment date without premium or
penalty; provided, however, that prepayment of an Adjusted LIBOR Rate Loan
prior to the last day of the Interest Period applicable thereto shall be
subject to the provisions of Sections 2.11 and 2.12. All prepayments of
Adjusted LIBOR Rate Loans shall be accompanied by interest accrued on the
amount prepaid through the date of prepayment.
1.7 Special Provisions for Assumption of Certain LIBOR Rate Loans.
Notwithstanding any contrary provision of this Agreement, on the date of the
initial loans made hereunder, the Company shall assume the obligations of
Electronic Assembly Corporation with respect to all LIBOR-based loans then
outstanding under the EAC Credit Agreement for the remainder of the interest
periods then in effect for such loans, so that such loans shall not be
considered to have been prepaid under the EAC Credit Agreement. Such loans
shall continue to bear interest at the rates determined pursuant to the EAC
Credit Agreement for the remainder of the interest periods then in effect, and
such loans shall be deemed to be Adjusted LIBOR Rate Loans to the Company
hereunder in all other respects and for all purposes of this Agreement.
ARTICLE II
ADMINISTRATION OF CREDIT
3
4
2.1 Elective Rates of Interest on Loans. The unpaid principal balance of
the Notes may be comprised of Variable Rate Loans and/or Adjusted LIBOR Rate
Loans as elected by the Company from time to time in accordance with the
procedures set forth below; provided, however, that each Adjusted LIBOR Rate
Loan must be in a minimum amount of $1,500,000 or a multiple of $50,000 in
excess of that amount; provided, further, that no election of an Adjusted LIBOR
Rate Loan shall become effective if any Default or Event of Default has
occurred and is continuing; and provided, further, that no more than ten
different Interest Periods for Adjusted LIBOR Rate Loans may be outstanding at
any one time. Each notice of election of an Adjusted LIBOR Rate Loan shall be
irrevocable.
2.2 Borrowing Procedure. The Company will request a loan hereunder by
written notice in the form of Exhibit 2.2 annexed hereto, or by telephonic
notice (which notice shall be confirmed in writing if the Agent so requests),
which notices will be irrevocable, to the Agent not later than 12:00 noon,
Milwaukee time, on the proposed Borrowing Date, or, in the case of an Adjusted
LIBOR Rate Loan, not later than 10:30 a.m. (Milwaukee time) on the date three
Business Days before the proposed Borrowing Date. In the event of any
inconsistency between the telephonic notice and the written confirmation
thereof, the telephonic notice will control. Each such request will be
effective upon receipt by the Agent and will specify (i) the amount of the
requested loan; (ii) the proposed Borrowing Date; (iii) whether such loan will
bear interest at the Variable Rate or at the Adjusted LIBOR Rate; and (iv) in
the case of an Adjusted LIBOR Rate Loan, the Interest Period therefor.
Upon its receipt of such notice from the Company, the Agent shall give
notice of such borrowing request to the other Banks not later than 1:30 p.m.
(Milwaukee time) on the Borrowing Date. Each Bank shall have its respective
portion of the loans available to the Agent in Milwaukee in immediately
available funds not later than 3:30 p.m., Milwaukee time, on the Borrowing
Date. Out of the funds received from each Bank for the making of the loans
hereunder, the Agent will make a loan to the Company in such amount on behalf
of such Bank. Notes and other required documents delivered to the Agent for
the account of each Bank shall be promptly delivered to such Bank, or in
accordance with instructions received from it, together with copies of such
other documents received in connection with the borrowing as such Bank shall
request.
Unless the Agent shall have been notified by telephone, confirmed promptly
thereafter in writing, by a Bank not later than 3:30 p.m., Milwaukee time, on a
Borrowing Date that such Bank will not make available to the Agent such Bank's
pro rata share of the requested loan, the Agent may assume that such Bank has
made such amount available to the Agent and, in reliance upon such assumption,
make available to the Company on such Borrowing Date a corresponding amount.
If and to the extent that such Bank, without giving such notice, shall not have
so made such amount available to the Agent, such Bank and the Company severally
agree to repay the Agent forthwith on demand such corresponding amount 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 (i)
in the case of the Company, the Variable Rate, and (ii) in the case of such
Bank, the Federal Funds Rate for each of the first three days (or fraction
4
5
thereof) after the date of demand and the Variable Rate for each day (or
fraction thereof) thereafter.
2.3 Conversion. The Company may elect from time to time, subject to the
terms and conditions of the Notes and this Agreement, to convert all or a
portion of a Variable Rate Loan into an Adjusted LIBOR Rate Loan or to convert
all or a portion of an Adjusted LIBOR Rate Loan into a Variable Rate Loan;
provided, however, that any conversion of an Adjusted LIBOR Rate Loan will
occur on the last day of the Interest Period applicable thereto.
2.4 Automatic Conversion. A Variable Rate Loan will continue as a Variable
Rate Loan unless and until converted into an Adjusted LIBOR Rate Loan. At the
end of the applicable Interest Period for an Adjusted LIBOR Rate Loan, such
Adjusted LIBOR Rate Loan will automatically be converted into a Variable Rate
Loan unless the Company shall have given the Agent notice in accordance with
section 2.5 requesting that, at the end of such Interest Period, all or a
portion of such Adjusted LIBOR Rate Loan be continued as an Adjusted LIBOR Rate
Loan for an additional Interest Period.
2.5 Conversion and Continuation Procedure. The Company will give the
Agent written notice in the form of Exhibit 2.5 annexed hereto, or telephonic
notice (confirmed in writing if the Agent so requests), which notices will be
irrevocable, of each conversion of a Variable Rate Loan or continuation of an
Adjusted LIBOR Rate Loan not later than 10:30 a.m., Milwaukee time, on a
Business Day which is not less than three Business Days before the date of the
requested conversion or continuation, specifying (i) the requested date (which
must be a Business Day) of such conversion or continuation; (ii) the amount of
the loan to be converted or continued; (iii) whether such loan currently bears
interest at the Variable Rate or the Adjusted LIBOR Rate; and (iv) the duration
of the Interest Period to be applicable thereto.
2.6 Basis for Determining Interest Rate Inadequate or Unfair. If with
respect to an Interest Period for any Adjusted LIBOR Rate Loan:
(i) any Bank determines in good faith (which determination will be binding
and conclusive on the Company) that by reason of circumstances affecting the
London interbank market adequate and reasonable means do not exist for
ascertaining the applicable Adjusted LIBOR Rate; or
(ii) any Bank reasonably determines (which determination will be binding
and conclusive on the Company) that the Adjusted LIBOR Rate will not
adequately and fairly reflect the cost of maintaining or funding such
Adjusted LIBOR Rate Loan for such Interest Period, or that the making or
funding of Adjusted LIBOR Rate Loans has become impracticable as a result of
an event occurring after the date of this Agreement which in the opinion of
such Bank materially affects Adjusted LIBOR Rate Loans;
5
6
then, [a] such Bank will promptly notify the Company thereof, and [b] so long
as such circumstances continue, such Bank will not be under any obligation to
make any new Adjusted LIBOR Rate Loan so affected.
2.7 Changes in Law Rendering Certain Loans Unlawful. In the event that any
Regulatory Change should make it (or, in the good faith judgment of a Bank,
should raise substantial questions as to whether it is) unlawful for such Bank
to make, maintain or fund an Adjusted LIBOR Rate Loan, (i) such Bank will
promptly notify each of the other parties hereto; (ii) the obligation of such
Bank to make Adjusted LIBOR Rate Loans shall, upon the effectiveness of such
event, be suspended for the duration of such unlawfulness; and (iii) upon such
notice, any outstanding Adjusted LIBOR Rate Loan made by such Bank will
automatically convert into a Variable Rate Loan.
2.8 Increased Costs. If any Regulatory Change,
(a) shall subject any Bank to any tax, duty or other charge with respect
to any of its loans hereunder, or shall change the basis of taxation of
payments to any Bank of the principal or interest on its loans hereunder, or
any other amounts due under this Agreement in respect of such loans, or its
obligation to make loans hereunder (except for changes in the rate of tax on
the overall net income of such Bank);
(b) shall impose, modify or make applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of the
Federal Reserve System, but excluding any reserve included in the
determination of the Adjusted LIBOR Rate), special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Bank; or
(c) shall impose on any Bank any other condition affecting its loans
hereunder;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D or any other analogous law, rule or regulation, to impose
a cost on) such Bank of making or maintaining any loans hereunder, or to reduce
the amount of any sum received or receivable by such Bank under this Agreement
and any document or instrument related hereto; then upon 15 days' notice from
such Bank (which notice shall be sent to the Agent and the Company and shall be
accompanied by a statement setting forth in reasonable detail the basis of such
increased cost or other effect on the loans), the Company shall pay directly to
such Bank, on demand, such additional amount or amounts as will compensate such
Bank for such increased cost or such reduction.
2.9 Discretion of Banks as to Manner of Funding. Notwithstanding any
provision of this Agreement to the contrary, each Bank shall be entitled to
fund and maintain its funding of all or any part of its loans hereunder in any
manner it sees fit.
6
7
2.10 Capital Adequacy. If any Regulatory Change affects the treatment of
any loan hereunder of a Bank as an asset or other item included for the purpose
of calculating the appropriate amount of capital to be maintained by such Bank
or any corporation controlling such Bank and has the effect of reducing the
rate of return on such Bank's or such corporation's capital as a consequence of
the obligations of such Bank hereunder to a level below that which such Bank or
such corporation could have achieved but for such Regulatory Change (taking
into account such Bank's or such corporation's policies with respect to capital
adequacy) by an amount deemed in good faith by such Bank to be material, then,
upon 15 days' notice from such Bank, the Company shall pay to such Bank, on
demand, such additional amount or amounts as will compensate such Bank or such
corporation, as the case may be, for such reduction.
2.11 Limitation on Prepayment. A Variable Rate Loan may be prepaid at the
option of the Company in whole or in part on any interest payment date without
premium or penalty. An Adjusted LIBOR Rate Loan may be prepaid at any time at
the option of the Company; provided, however, that prepayment prior to the last
day of the Interest Period applicable thereto will require the payment by
Company of the amount (if any) required by section 2.12.
2.12 Funding Losses. The Company hereby agrees that upon demand by any
Bank (which demand shall be sent to the Agent and the Company and shall be
accompanied by a statement setting forth in reasonable detail the basis for the
calculations of the amount being claimed) the Company will indemnify such Bank
against any loss or expense which such Bank may sustain or incur (including,
without limitation, any net loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Bank to
fund or maintain Adjusted LIBOR Rate Loans and any loss of anticipated return),
as reasonably determined by such Bank, as a result of (i) any payment,
prepayment or conversion of any Adjusted LIBOR Rate Loan on a date other than
the last day of an Interest Period for such loan whether not required by any
other provisions of this Agreement, or (ii) any failure of the Company to
obtain an Adjusted LIBOR Rate Loan on a Borrowing Date or to convert a Variable
Rate Loan to an Adjusted LIBOR Rate Loan or to continue an Adjusted LIBOR Rate
Loan at the end of any Interest Period, as specified by the Company in a notice
to the Agent as set forth above.
2.13 Conclusiveness of Statements; Survival of Provisions. Determinations
and statements of any Bank pursuant to sections 2.7, 2.8, 2.10 and 2.12 shall
be rebuttably presumptive evidence of the correctness of the determinations and
statements and shall be conclusive absent manifest error. The provisions of
section 2.8, 2.10 and 2.12 shall survive the obligation of the Banks to extend
credit under this Agreement and the repayment of the loans.
2.14 Computations of Interest. All computations of interest and other
amounts due under the Notes and fees and other amounts due under this Agreement
will be based on a 360-day year using the actual number of days occurring in
the period for which such interest, fees or other amounts are payable.
7
8
2.15 Payments. Interest on all loans will be due and payable (i) in the
case of a Variable Rate Loan, monthly beginning on the last Business Day of the
month in which the Company obtains such Variable Rate Loan and on the last
Business Day of each month thereafter; (ii) in the case of an Adjusted LIBOR
Rate Loan, on the last Business Day of the applicable Interest Period; and
(iii) in the case of any loan, at the respective maturity of such loan, whether
by acceleration or otherwise. All payments and prepayments of principal,
interest and fees (other than Agent's Fees) under this Agreement and the Notes
shall be made to the Agent prior to 12:00 noon, Milwaukee time, in immediately
available funds for the ratable account of the Banks and the holders of the
Notes then outstanding, as appropriate.
2.16 Application of Payments. The Agent shall promptly distribute to each
such Bank or holder pro rata the amount of principal, interest or fees (other
than Agent's Fees) received by the Agent for the account of such holder. Any
payment to the Agent for the account of a Bank or a holder of a Note under this
Agreement shall constitute a payment by the Company to such Bank or holder of
the amount so paid to the Agent, and any Notes or portions thereof so paid
shall not be considered outstanding for any purpose after the date of such
payment to the Agent.
2.17 Pro Rata Treatment. In the event that any Bank shall receive from
the Company or any other source (other than the sale of a participation to
another commercial lender in the ordinary course of business) any payment
(other than a payment of Agent's fees) of, on account of, or for any obligation
of the Company hereunder or under the Notes (whether pursuant to the exercise
of any right of set off, banker's lien, realization upon any security held for
or appropriated to such obligation, counterclaim or otherwise) other than as
above provided, then such Bank shall immediately purchase, without recourse and
for cash, an interest in the obligations of the same nature held by the other
Banks so that each Bank shall thereafter have a percentage interest in all of
such obligations equal to the percentage interest which such Bank held in the
Notes outstanding immediately before such payment; provided, that if any
payment so received shall be recovered in whole or in part from such purchasing
Bank, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest. The Company specifically
acknowledges and consents to the preceding sentence.
2.18 Interest Following Event of Default. From and after the occurrence
and during the continuance of an Event of Default, the unpaid principal amount
of all loans and all other amounts due and unpaid under this Agreement and the
Notes will bear interest until paid computed at a rate equal to 2% per annum in
excess of the rate or rates otherwise payable hereunder.
2.19 Deposits; Set Off. The Company grants each Bank, as security for the
Notes, a lien and security interest in any and all monies, balances, accounts
and deposits (including certificates of deposit) of the Company at such Bank
now or at any time hereafter. If any Event of Default occurs hereunder or any
attachment of any balance of the Company occurs, each Bank may offset and apply
any such security toward the payment of the Note or Notes held by such Bank,
whether or not such Note or Notes, or any part thereof, shall then be due.
8
9
Promptly upon its charging any account of the Company pursuant to this section,
such Bank shall give the Company notice thereof.
ARTICLE III
CONDITIONS OF BORROWING
Without limiting any of the other terms of this Agreement, none of the
Banks shall be required to make any loan to the Company hereunder:
3.1 Representations. Unless the representations and warranties contained
in Article IV hereof continue to be true and correct on the date of such loan;
no Default or Event of Default hereunder shall have occurred and be continuing;
and there has been no material adverse change in the business operations or
financial condition of the Company and its Subsidiaries, taken as a whole,
since September 30, 1996.
3.2 Guaranties. Unless prior to the initial loan each of Electronic
Assembly Corporation and Technology Group, Inc. (each a "Guarantor" and
collectively the "Guarantors"), shall have executed and delivered to each Bank
a guaranty agreement in the form attached hereto as Exhibit 3.2 (each a
"Guaranty" and collectively the "Guaranties").
3.3 Insurance Certificate. Unless prior to the initial loan the Banks
shall have received evidence satisfactory to them that the Company maintains
hazard and liability insurance coverage reasonably satisfactory to the Banks.
3.4 Form U1. Unless prior to the initial loan the Company shall have
executed and delivered to the Banks a Federal Reserve Form U1 provided for in
Regulation U of the Board of Governors of the Federal Reserve System, and the
statements made therein shall be such, in the opinion of the Banks, as to
permit the transactions contemplated hereby without violation of Regulation U.
3.5 Counsel Opinion. Unless prior to the initial loan the Banks shall
have received from their special counsel and from Company's counsel,
satisfactory opinions as to such matters relating to the Company and its
Subsidiaries, the validity and enforceability of this Agreement, the loans to
be made hereunder and the other documents required by this Article III as the
Banks shall reasonably require. The Company shall execute and/or deliver to
the Banks or their respective counsel such documents concerning its corporate
status and the authorization of such transactions as may be requested.
3.6 Proceedings Satisfactory. Unless all proceedings taken in connection
with the transactions contemplated by this Agreement, and all instruments,
authorizations and other documents applicable thereto, shall be satisfactory in
form and substance to the Banks and their respective counsel.
9
10
3.7 Violation of Environmental Laws. If in the opinion of the Banks there
exists any uncorrected violation by the Company or any Subsidiary of an
Environmental Law or any condition which requires, or may require, a cleanup,
removal or other remedial action by the Company or any Subsidiary under any
Environmental Laws.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to make the loans as provided herein, the
Company represents and warrants to the Banks as follows as of the date of this
Agreement and each request by the Company for a loan or other extension of
credit hereunder shall constitute a representation and warranty by the Company
that all such representations and warranties remain true on and as of the date
of such requested loan or extension of credit:
4.1 Organization. The Company and each of its Subsidiaries is a
corporation duly organized and existing in good standing or active status under
the laws of the jurisdiction under which it was incorporated, and has all
requisite power and authority, corporate or otherwise, to conduct its business
and to own its properties. Set forth in Schedule 4.1 hereto is a complete and
accurate list of all of its Subsidiaries, showing as of the date hereof (as to
each such Subsidiary) the jurisdiction of its incorporation, the number of
shares of each class of capital stock authorized, the number outstanding and
the percentage of the outstanding shares of each such class owned (directly or
indirectly) by the Company. All of the outstanding stock of each Subsidiary
has been legally and validly issued, is fully paid and non-assessable except as
provided by Section 180.0622 of the Wisconsin Business Corporation Law, and is
owned by the Company free and clear of all pledges, liens, security interests
and other charges or encumbrances. The Company and each of its Subsidiaries is
duly licensed or qualified to do business in all jurisdictions in which such
qualification is required, and failure to so qualify could have a material
adverse effect on the property, financial condition or business operations of
the Company or any Subsidiary.
4.2 Authority. The execution, delivery and performance of this Agreement
and the Notes are within the corporate powers of the Company, have been duly
authorized by all necessary corporate action and do not and will not (i)
require any consent or approval of the stockholders of the Company, (ii)
violate any provision of the articles of incorporation or by-laws of the
Company or of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to the
Company or any Subsidiary; (iii) require the consent or approval of, or filing
or registration with, any governmental body, agency or authority; or (iv)
result in a breach of or constitute a default under, or result in the
imposition of any lien, charge or encumbrance upon any property of the Company
or any Subsidiary pursuant to, any indenture or other agreement or instrument
under which the Company or any Subsidiary is a party or by which it or its
properties may be bound or affected. This Agreement constitutes, and each of
the Notes and Loan Documents when executed and delivered hereunder will
constitute, legal, valid and binding obligations of the Company or other
10
11
signatory enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy or similar laws affecting the
enforceability of creditors' rights generally.
4.3 Investment Company Act of 1940. Neither the Company nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
4.4 Employee Retirement Income Security Act. All Plans are in compliance
in all material respects with the applicable provisions of ERISA. Neither the
Company nor any Subsidiary has incurred any material "accumulated funding
deficiency" within the meaning of section 302(a)(2) of ERISA in connection with
any Plan. There has been no Reportable Event for any Plan, the occurrence of
which would have a materially adverse effect on the Company or any Subsidiary,
nor has the Company or any Subsidiary incurred any material liability to the
Pension Benefit Guaranty Corporation under section 4062 of ERISA in connection
with any Plan. There are no Unfunded Liabilities relating to any Plans.
Neither the Company nor any Subsidiary is a member of any Multiemployer Plan.
4.5 Financial Statements. The audited consolidated balance sheet of the
Company and its Subsidiaries as of September 30, 1996, and the audited
consolidated statements of income, changes in shareholders' equity and cash
flows of the Company and its Subsidiaries for the year ended on that date, as
certified by Coopers & Xxxxxxx L.L.P. and heretofore furnished to the Banks,
are correct and complete and truly represent the financial condition of the
Company and such Subsidiaries as of September 30, 1996, and the results of
their operations for the fiscal year ended on that date. Since such date there
has been no material adverse change in the property, financial condition or
business operations of the Company or any Subsidiary.
4.6 Dividends and Redemptions. The Company has not, since September 30,
1996, paid or declared any dividend, or made any other distribution on account
of any shares of any class of its stock, or redeemed, purchased or otherwise
acquired, directly or indirectly, any shares of any class of its stock, except
as permitted by this Agreement. The Company is not a party to any agreement
which may require it to redeem, purchase or otherwise acquire any shares of any
class of its stock.
4.7 Liens. The Company and each Subsidiary has good and marketable title
to all of its assets, real and personal, free and clear of all liens, security
interests, mortgages and encumbrances of any kind, except Permitted Liens. All
owned and leased buildings and equipment of the Company and its Subsidiaries
are in good condition, repair and working order in all material respects and,
to the best of the Company's knowledge and belief, conform in all material
respects to all applicable laws, regulations and ordinances.
4.8 Contingent Liabilities. Neither the Company nor any Subsidiary has
any guarantees or other contingent liabilities outstanding (including, without
limitation, liabilities by way of agreement, contingent or otherwise, to
purchase, to provide funds for payment, to supply funds to or otherwise invest
in the debtor or otherwise to assure the creditor against loss), except those
permitted by section 5.9 hereof.
11
12
4.9 Taxes. Except as expressly disclosed in the financial statements
referred to in section 4.5 above, neither the Company nor any Subsidiary has
any material outstanding unpaid tax liability (except for taxes which are
currently accruing from current operations and ownership of property, which are
not delinquent), and no tax deficiencies have been proposed or assessed against
the Company or any Subsidiary. The most recent completed audit of the
Company's federal income tax returns was for the Company's income tax year
ending September 30, 1993, and all taxes shown by such returns (together with
any adjustments arising out of such audit, if any) have been paid.
4.10 Absence of Litigation. Neither the Company nor any Subsidiary is a
party to any litigation or administrative proceeding, nor so far as is known by
the Company is any litigation or administrative proceeding threatened against
it or any Subsidiary, which in either case (i) relates to the execution,
delivery or performance of this Agreement, the Notes, or any of the Loan
Documents, (ii) could, if adversely determined, cause any material adverse
change in the property, financial condition or the conduct of the business of
the Company or any Subsidiary, (iii) asserts or alleges the Company or any
Subsidiary violated Environmental Laws, (iv) asserts or alleges that Company or
any Subsidiary is required to cleanup, remove, or take remedial or other
response action due to the disposal, depositing, discharge, leaking or other
release of any hazardous substances or materials, (v) asserts or alleges that
Company or any Subsidiary is required to pay all or a portion of the cost of
any past, present or future cleanup, removal or remedial or other response
action which arises out of or is related to the disposal, depositing,
discharge, leaking or other release of any hazardous substances or materials by
Company or any Subsidiary.
4.11 Absence of Default. No event has occurred which either of itself or
with the lapse of time or the giving of notice or both, would give any creditor
of the Company or any Subsidiary the right to accelerate the maturity of any
indebtedness of the Company or any Subsidiary for borrowed money. Neither the
Company nor any Subsidiary is in default under any other lease, agreement or
instrument, or any law, rule, regulation, order, writ, injunction, decree,
determination or award, non-compliance with which could materially adversely
affect its property, financial condition or business operations.
4.12 No Burdensome Agreements. Neither the Company nor any Subsidiary is
a party to any agreement, instrument or undertaking, or subject to any other
restriction, (i) which materially adversely affects or may in the future so
affect the property, financial condition or business operations of the Company
or any Subsidiary, or (ii) under or pursuant to which the Company or any
Subsidiary is or will be required to place (or under which any other person may
place) a lien upon any of its properties securing indebtedness either upon
demand or upon the happening of a condition, with or without such demand.
4.13 Trademarks, etc. The Company and its Subsidiaries possess 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 might result in a material adverse
effect on the Company or any Subsidiary.
12
13
4.14 Full Disclosure. No information, exhibit or report furnished by the
Company or any Subsidiary to any Bank in connection with the negotiation or
execution of this Agreement contained any material misstatement of fact as of
the date when made or omitted to state a material fact or any fact necessary to
make the statements contained therein not misleading as of the date when made.
4.15 Fiscal Year. The fiscal year of the Company and each Subsidiary ends
on September 30 of each year.
4.16 Environmental Conditions. To the Company's knowledge after
reasonable investigation, there are no conditions existing currently or likely
to exist during the term of this Agreement 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. Neither the Company nor any Subsidiary is
subject to any judgment, decree, order or citation related to or arising out of
Environmental Laws and neither the Company nor any Subsidiary has been named or
listed as a potentially responsible party by any governmental body or agency in
a matter arising under any Environmental Laws.
13
14
ARTICLE V
NEGATIVE COVENANTS
While any part of the credit granted to the Company is available and while
any part of the principal of or interest on any Note remains unpaid, the
Company shall not do any of the following, or permit any Subsidiary to do any
of the following, without the prior written consent of the Required Banks:
5.1 Restriction of Indebtedness. Create, incur, assume or have
outstanding any indebtedness for borrowed money or the deferred purchase price
of any asset (including obligations under Capitalized Leases), except:
(a) the Notes issued under this Agreement;
(b) other indebtedness outstanding on September 30, 1996, and shown on the
financial statements referred to in section 4.5 above, including renewals,
extensions and refundings of such indebtedness, provided that the principal
amount of such indebtedness shall not be increased;
(c) indebtedness secured by liens described in section 9.1(w)(iv),
provided such indebtedness does not exceed an aggregate of $7,000,000
outstanding at any one time; and
(d) unsecured indebtedness which has been subordinated in right of payment
to the Company's obligations under this Agreement and the Notes in a manner
satisfactory to the Banks.
5.2 Restriction on Liens. Create or permit to be created or allow to
exist any mortgage, pledge, encumbrance or other lien upon or security interest
in any property or asset now owned or hereafter acquired by the Company or any
Subsidiary, except Permitted Liens.
5.3 Sale and Leaseback. Enter into any agreement providing for the
leasing by the Company or a Subsidiary of property which has been or is to be
sold or transferred by the Company or a Subsidiary to the lessor thereof, or
which is substantially similar in purpose to property so sold or transferred.
5.4 Dividends and Redemptions. Pay or declare any dividend, or make any
other distribution on account of any shares of any class of its stock, or
redeem, purchase or otherwise acquire directly or indirectly, any shares of any
class of its stock, except for:
(a) dividends payable in shares of stock of the Company;
(b) dividends paid to the Company by a wholly-owned Subsidiary;
14
15
(c) redemptions of stock of the Company made with the proceeds of sales
of stock of the Company occurring within 30 days of the date of any such
redemption; and
(d) so long as no Default or Event of Default has occurred and is
continuing, cash dividends paid by the Company which do not exceed in the
aggregate for all such dividends paid after September 30, 1996, 40% of the
Consolidated Net Earnings of the Company and its Subsidiaries, after
subtracting all net losses, accumulated during the period after September 30,
1996 and prior to the payment of the dividend with respect to which the
determination is made, taken as a single accounting period.
5.5 Acquisitions and Investments. Acquire any other business or make any
loan, advance or extension of credit to, or investment in, any other person,
corporation, partnership or other entity, including investments acquired in
exchange for stock or other securities or obligations of any nature of the
Company or any Subsidiary, or create or participate in the creation of any
Subsidiary or joint venture, except:
(a) investments in accounts, chattel paper, and notes receivable, arising
or acquired in the ordinary course of business;
(b) investments in bank certificates of deposit (but only with FDICinsured
commercial banks having a combined capital and surplus in excess of $1
billion), open market commercial paper maturing within one year having the
highest rating of either Standard & Poors Corporation or Xxxxx'x Investors
Service, Inc., U.S. Treasury Bills subject to repurchase agreements and
shortterm obligations issued or guaranteed by the United States Government or
any agency thereof;
(c) Investments in openend diversified investment companies of recognized
financial standing investing solely in shortterm money market instruments
consisting of securities issued or guaranteed by the United States
Government, its agencies or instrumentalities, time deposits and certificates
of deposit issued by domestic banks or London branches of domestic banks,
bankers acceptances, repurchase agreements, high grade commercial paper and
the like;
(d) loans and advances made to suppliers, employees, officers and agents
of the Company and its Subsidiaries in the ordinary course of business,
consistent with the Company's past practices;
(e) investments in a Guarantor by the Company and investments in the
Company by a Subsidiary;
(f) cash investments in Plexus General Partnership Corp., a wholly-owned
subsidiary of the Company ("General Partner"), provided that (A)
15
16
the General Partner shall not make any investments of the kind described
above in any Person except for a cash investment of up to $750,000 in
Plexus Home Automation Limited Partnership, a Wisconsin limited
partnership ("Partnership"), of which General Partner shall be the
managing general partner, or engage in any business other than through its
investment in the Partnership, and (B) such investments by Company in the
General Partner shall be limited to the amounts necessary to enable the
General Partner to make such permitted investments in the Partnership and
other amounts reasonably required by the General Partner in the ordinary
course of its business;
(g) other investments outstanding on September 30, 1996, and shown
on the financial statements referred to in section 4.5 above, provided
that such investments shall not be increased; and
(h) other investments which may not exceed $1,000,000 in the
aggregate in any fiscal year without the consent of the Required Banks.
5.6 Liquidation; Merger; Disposition of Assets. Liquidate or
dissolve; or merge with or into or consolidate with or into any other
corporation or entity except a merger of a wholly-owned Subsidiary into the
Company or another wholly-owned Subsidiary; or sell, lease, transfer or
otherwise dispose of all or any substantial part of its property, assets or
business (other than sales made in the ordinary course of business), or any
stock of any Subsidiary.
5.7 Accounts Receivable. Discount or sell with recourse, or sell for
less than the face amount thereof, any of its notes or accounts receivable,
whether now owned or hereafter acquired.
5.8 Contingent Liabilities. Guarantee or become a surety or
otherwise contingently liable (including, without limitation, liable by way of
agreement, contingent or otherwise, to purchase, to provide funds for payment,
to supply funds to or otherwise invest in the debtor or otherwise to assure the
creditor against loss) for any obligations of others, except (i) the
Guaranties, (ii) pursuant to the deposit and collection of checks and similar
items in the ordinary course of business, and (iii) guaranties by the Company
of the trade obligations of the Guarantors incurred in the ordinary course of
business.
5.9 Affiliates. Suffer or permit any transaction with any Affiliate,
except on terms not less favorable to the Company or Subsidiary than would be
usual and customary in similar transactions with non-affiliated persons.
5.10 Fiscal Year. Change its fiscal year.
5.11 Derivatives. Enter into any interest rate, commodity or foreign
currency exchange, swap, collar, floor, cap, option or similar agreement except
to hedge against actual interest rate, foreign currency or commodity exposure.
Notwithstanding the foregoing or any other provision of this Agreement, the
Company may from time to time enter into hedging
16
17
arrangements of the type described above with one or more of the Banks (or
their affiliates), provided that the Company's obligations in respect of such
hedging arrangements shall at all times be unsecured.
ARTICLE VI
AFFIRMATIVE COVENANTS
While any part of the credit granted to the Company is available and while
any part of the principal of or interest on any Note remains unpaid, and unless
waived in writing by the Required Banks, the Company shall:
6.1 Financial Status. Maintain:
(a) Consolidated Tangible Net Worth at all times in the amount of at
least $48,000,000; and
(b) Consolidated Debt to Worth Ratio at all times of not more than 1.50 to
1.0; and
(c) Consolidated Fixed Charge Coverage Ratio as of each fiscal quarter-end
of at least 2.00 to 1.0 for the four fiscal quarters then ended.
6.2 Insurance. Maintain insurance in such amounts and against such risks
as is customary by companies engaged in the same or similar businesses and
similarly situated.
6.3 Corporate Existence; Obligations. Do, and cause each Subsidiary to
do, all things necessary to: (i) maintain its corporate existence (except for
mergers permitted by section 5.6) and all rights and franchises necessary or
desirable for the conduct of its business; (ii) comply with all applicable
laws, rules, regulations and ordinances, and all restrictions imposed by
governmental authorities, including those relating to environmental standards
and controls; and (iii) pay, before the same become delinquent and before
penalties accrue thereon, all taxes, assessments and other governmental charges
against it or its property, and all of its other liabilities, except to the
extent and so long as the same are being contested in good faith by appropriate
proceedings in such manner as not to cause any material adverse effect upon its
property, financial condition or business operations, with adequate reserves
provided for such payments.
6.4 Business Activities. Continue to carry on its business activities in
substantially the manner such activities are conducted on the date of this
Agreement and not make any material change in the nature of its business.
6.5 Properties. Keep and cause each Subsidiary to keep its properties
(whether owned or leased) in good condition, repair and working order, ordinary
wear and tear and
17
18
obsolescence excepted, and make or cause to be made from time to time all
necessary repairs thereto (including external or structural repairs) and
renewals and replacements thereof.
6.6 Accounting Records; Reports. Maintain and cause each Subsidiary to
maintain a standard and modern system for accounting in accordance with
generally accepted principles of accounting consistently applied throughout all
accounting periods and consistent with those applied in the preparation of the
financial statements referred to in section 4.5; and furnish to the Banks such
information respecting the business, assets and financial condition of the
Company and its Subsidiaries as any Bank may reasonably request and, without
request, furnish to the Banks:
(a) Within 45 days after the end of each of the first three quarters of
each fiscal year of the Company (i) consolidated balance sheets of the
Company and all of its Subsidiaries as of the close of such quarter and of
the comparable quarter in the preceding fiscal year; and (ii) consolidated
statements of income and cash flow of the Company and all of its Subsidiaries
for such quarter and for that part of the fiscal year ending with such
quarter and for the corresponding periods of the preceding fiscal year; all
in reasonable detail and certified as true and correct (subject to audit and
normal year-end adjustments) by the chief financial officer of the Company;
and
(b) As soon as available, and in any event within 90 days after the close
of each fiscal year of the Company, a copy of the audit report for such year
and accompanying consolidated financial statements of the Company and its
Subsidiaries, as prepared by independent public accountants of recognized
standing selected by the Company and satisfactory to the Required Banks,
which audit report shall be accompanied by an opinion of such accountants, in
form satisfactory to the Required Banks, to the effect that the same fairly
present the financial condition of the Company and its Subsidiaries and the
results of its and their operations as of the relevant dates thereof; and
(c) As soon as available, copies of all reports or materials submitted or
distributed to shareholders of the Company or filed with the SEC or other
governmental agency having regulatory authority over the Company or any
Subsidiary or with any national securities exchange; and
(d) Promptly after the furnishing thereof, copies of any statement or
report furnished to any other holder of obligations of the Company or any
Subsidiary pursuant to the terms of any indenture, loan or similar agreement
and not otherwise required to be furnished to the Banks pursuant to any other
clause of this section 6.6; and
(e) Promptly, and in any event within 10 days, after Company has knowledge
thereof a statement of the chief financial officer of the Company describing:
(i) any event which, either of itself or with the lapse of time or the
18
19
giving of notice or both, would constitute a Default hereunder or a default
under any other material agreement to which the Company or any Subsidiary is
a party, together with a statement of the actions which the Company proposes
to take with respect thereto; (ii) any pending or threatened litigation or
administrative proceeding of the type described in section 4.10; and (iii)
any fact or circumstance which is materially adverse to the property,
financial condition or business operations of the Company or any Subsidiary;
and
(f)(i) Promptly, and in any event within 30 days, after the Company knows
that any Reportable Event with respect to any Plan has occurred, a statement
of the chief financial officer of the Company setting forth details as to
such Reportable Event and the action which the Company proposes to take with
respect thereto, together with a copy of any notice of such Reportable Event
given to the Pension Benefit Guaranty Corporation if a copy of such notice is
available to the Company, (ii) promptly after the filing thereof with the
Internal Revenue Service, copies of each annual report with respect to each
Plan administered by the Company and (iii) promptly after receipt thereof, a
copy of any notice (other than a notice of general application) the Company,
any Subsidiary or any member of the Controlled Group may receive from the
Pension Benefit Guaranty Corporation or the Internal Revenue Service with
respect to any Plan administered by the Company.
The financial statements referred to in (a) and (b) above shall be
accompanied by a certificate by the chief financial officer or controller of
the Company setting forth detailed computations demonstrating compliance with
Section 6.1 and further stating that, as of the close of the last period
covered in such financial statements, no condition or event had occurred which
constitutes a Default or an Event of Default hereunder (or if there was such a
condition or event, specifying the same).
6.7 Inspection of Records. Permit representatives of the Banks to visit
and inspect any of the properties and examine any of the books and records of
the Company and its Subsidiaries at any reasonable time and as often as may be
reasonably desired.
6.8 Compliance with Environmental Laws. Timely comply, and cause each
Subsidiary to comply, with all applicable Environmental Laws.
6.9 Orders, Decrees and Other Documents. Provide to the Banks,
immediately upon receipt, copies of any correspondence, notice, pleading,
citation, indictment, complaint, order, decree, or other document from any
source asserting or alleging a circumstance or condition which requires or may
require a financial contribution by Company or any Subsidiary 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 Company or any Subsidiary for an alleged
violation of Environmental Laws, which in any case might reasonably be expected
to have a material adverse effect on the business, assets or financial
condition of the Company or any Subsidiary.
19
20
6.10 Agreement to Update. Advise the Banks in writing as soon as Company
becomes aware of any condition or circumstance which makes the environmental
warranties contained in this Agreement incomplete or inaccurate.
6.11 Environmental Audit. Upon the occurrence or existence of any event,
condition or circumstance which would require notification from the Company or
any Subsidiary pursuant to Section 6.9 or Section 6.10 hereof, at the request
of any Bank the Company shall permit, at its expense, an Environmental Audit
solely for the benefit of the Banks, to be conducted by the Banks or an
independent agent selected by the Banks; provided, however, that the initial
stage of such Environmental Audit shall be limited to those activities normally
included in a "Phase I" investigation, and if such initial investigation
discloses the possibility of a condition which, in the reasonable judgment of
the Banks, may subject the Company or any Subsidiary to a material liability,
cost or expense, then such Environmental Audit shall be expanded to include
those activities normally associated with a "Phase II" investigation.
ARTICLE VII
DEFAULTS
7.1 Defaults. The occurrence of any one or more of the following events
shall constitute an "Event of Default":
(a) The Company shall fail to pay (i) any interest due on any Note, or any
other amount payable hereunder (other than a principal payment on any Note)
by five days after the same becomes due; or (ii) any principal amount due on
any Note when due;
(b) The Company shall default in the performance or observance of any
agreement, covenant, condition, provision or term contained in Article V or
section 6.1 of this Agreement;
(c) The Company or other signatory other than any Bank shall default in
the performance or observance of any of the other agreements, covenants,
conditions, provisions or terms in this Agreement or any Loan Document
continuing for a period of thirty days after written notice thereof is given
to the Company by any of the Banks;
(d) Any representation or warranty made by the Company herein or any
certificate delivered pursuant hereto, or any financial statement delivered
to any Bank hereunder, shall prove to have been false in any material respect
as of the time when made or given;
(e) The Company or any Subsidiary shall fail to pay as and when due and
payable (whether at maturity, by acceleration or otherwise) all or any part
of the principal of or interest on any indebtedness of or assumed by it
having an
20
21
outstanding principal balance of $100,000 or more, or of the rentals due
under any lease or sublease requiring aggregate rental payments of
$100,000 or more, or of any other obligation for the payment of money in
the amount of $100,000 or more, and such default shall not be cured within
the period or periods of grace, if any, specified in the instruments
governing such obligations; or default shall occur under any evidence of,
or any indenture, lease, sublease, agreement or other instrument governing
such obligations, and such default shall continue for a period of time
sufficient to permit the acceleration of the maturity of any such
indebtedness or other obligation or the termination of such lease or
sublease;
(f) A final judgment which, together with all other outstanding
final judgments against the Company and its Subsidiaries, or any of them,
exceeds an aggregate of $50,000 shall be entered against the Company or
any Subsidiary and shall remain outstanding and unsatisfied, unbonded,
unstayed or uninsured after 60 days from the date of entry thereof; or any
judgment which exceeds $1,000,000 shall be entered against the Company or
any Subsidiary and shall not be covered, for the benefit of the Company or
such Subsidiary, by insurance provided by a financially responsible
insurance carrier;
(g) The Company, any Subsidiary or any Guarantor shall: (i) become
insolvent; or (ii) be unable, or admit in writing its inability to pay its
debts as they mature; or (iii) make a general assignment for the benefit
of creditors or to an agent authorized to liquidate any substantial amount
of its property; or (iv) become the subject of an "order for relief"
within the meaning of the United States Bankruptcy Code; or (v) become the
subject of a creditor's petition for liquidation, reorganization or to
effect a plan or other arrangement with creditors; or (vi) apply to a
court for the appointment of a custodian or receiver for any of its
assets; or (vii) have a custodian or receiver appointed for any of its
assets (with or without its consent); or (viii) have any of its assets
garnished, seized or forfeited, or threatened with garnishment, seizure or
forfeiture; or (ix) otherwise become the subject of any insolvency
proceedings or propose or enter into any formal or informal composition or
arrangement with its creditors;
(h) This Agreement, any Note or any Loan Document shall, at any time
after their respective execution and delivery, and for any reason, cease
to be in full force and effect or be declared null and void, or be revoked
or terminated, or the validity or enforceability thereof or hereof shall
be contested by the Company or any shareholder of the Company, or the
Company shall deny that it has any or further liability or obligation
thereunder or hereunder, as the case may be; or
(i) Any Reportable Event, which the Required Banks determine in good
faith to constitute grounds for the termination of any Plan by the Pension
Benefit Guaranty Corporation or for the appointment by the appropriate
United
21
00
Xxxxxx Xxxxxxxx Xxxxx of a trustee to administer any Plan, shall have
occurred, or any Plan shall be terminated within the meaning of
Title IV of ERISA, or a trustee shall be appointed by the
appropriate United States District Court to administer any Plan, or
the Pension Benefit Guaranty Corporation shall institute
proceedings to terminate any Plan or to appoint a trustee to
administer any Plan; or the Company or any Subsidiary shall become
a member of a Multiemployer Plan.
7.2 Termination of Commitment and Acceleration of Obligations. Upon
the occurrence of any Event of Default:
(a) As to any Event of Default (other than an Event of
Default under section 7.1(g)) and at any time thereafter, and in
each case, the Required Banks (or the Agent with the written
consent of the Required Banks) may, by written notice to the
Company, immediately terminate the obligation of the Banks to make
loans hereunder and/or declare the unpaid principal balance of the
Notes, together with all interest accrued thereon, to be
immediately due and payable; and the unpaid principal balance of
and accrued interest on such Notes shall thereupon be due and
payable without further notice of any kind, all of which are
hereby waived, and notwithstanding anything to the contrary herein
or in the Notes contained;
(b) As to any Event of Default under section 7.1(g), the
obligation of the Banks to make loans hereunder shall immediately
terminate and the unpaid principal balance of all Notes, together
with all interest accrued thereon, shall immediately and forthwith
be due and payable, all without presentment, demand, protest, or
further notice of any kind, all of which are hereby waived,
notwithstanding anything to the contrary herein or in the Notes
contained; and
(c) As to each Event of Default, the Banks shall have all the
remedies for default provided by the Loan Documents, as well as
applicable law.
7.3 Amendments, Etc. No waiver, amendment, settlement or
compromise of any of the rights of any Bank under this Agreement, any Note or
any of the Loan Documents shall be effective for any purpose unless it is in a
written instrument executed and delivered by the parties authorized to act by
this section 7.3. Subject to the provisions of this section 7.3, the Required
Banks (or the Agent with the written consent of the Required Banks) and the
Company may enter into agreements supplemental hereto for the purpose of adding
or modifying any provisions to this Agreement, the Notes, or the Loan Documents
or changing in any manner the rights of the Banks or the Company hereunder or
thereunder or waiving any Event of Default hereunder; provided, however, that
no such supplemental agreement shall, without the consent of all of the Banks:
(a) Extend the maturity of any Note or reduce the principal
amount thereof, or reduce the rate or amount or change the time of
payment of principal, interest or fees payable on any Note or
otherwise under this Agreement;
22
23
(b) Amend the definition of Required Banks;
(c) Extend the Termination Date, or increase the amount of
the Commitment of any Bank hereunder, or permit the Company to
assign its rights under this Agreement;
(d) Alter the provisions of section 2.19 of this Agreement;
(e) Amend any provision of this Agreement requiring a pro
rata sharing among the Banks;
(f) Amend this section 7.3; or
(g) Release any of the Guaranties.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent.
ARTICLE VIII
THE AGENT
8.1 Appointment and Powers. Each of the Banks hereby appoints
Firstar Bank Milwaukee, National Association as Agent for the Banks hereunder,
and authorizes the Agent to take such action as Agent on its behalf and to
exercise such powers as are specifically delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. The
duties of the Agent shall be entirely ministerial; the Agent shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement, the Notes or any related
document, or to enforce such performance, or to inspect the property (including
the books and records) of the Company or any of its Subsidiaries; and the Agent
shall not be required to take any action which exposes the Agent to personal
liability or which is contrary to this Agreement or the Notes or applicable
law. Firstar Bank Milwaukee, National Association agrees to act as Agent upon
the express terms and conditions contained in this Article VIII.
8.2 Responsibility. The Agent (i) makes no representation or
warranty to any Bank and shall not be responsible to any Bank for any oral or
written recitals, reports, statements, warranties or representations made in or
in connection with this Agreement or any Note; (ii) shall not be responsible
for the due execution, legality, validity, enforceability, genuineness,
sufficiency, collectibility or value of this Agreement or any Note or any other
instrument or document furnished pursuant thereto; (iii) may treat the payee of
any Note as the owner thereof until the Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
the Agent; (iv) may execute any of its duties under this Agreement by or
through employees, agents and attorneys in fact and shall not be answerable for
23
24
the default or misconduct of any such employee, agent or attorney in fact
selected by it with reasonable care; (v) may (but shall not be required to)
consult with legal counsel (including counsel for the borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
advice of such counsel, accountants or experts; (vi) shall be entitled to rely
upon any Note, notice, consent, waiver, amendment, certificate, affidavit,
letter, telegram, telex, cable or other document or communication believed by
it to be genuine and signed or sent by the proper party or parties, and may
rely on statements contained therein without further inquiry or investigation.
Neither the Agent nor any of its directors, officers, agents, or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement or the Notes, except for its or their own
gross negligence or willful misconduct.
8.3 Agent's Indemnification. The Banks agree to indemnify and reimburse
the Agent (to the extent not reimbursed by the Company), ratably in accordance
with their respective Commitments from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent as such in any way relating to
or arising out of this Agreement or any action taken or omitted by the Agent
under this Agreement, provided that no Bank shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Bank agrees to reimburse the Agent promptly upon demand for its ratable share
of any out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, administration or enforcement of,
or the preservation of any rights under, this Agreement to the extent that the
Agent is not reimbursed for such expenses by the Company.
8.4 Rights as a Lender. With respect to its Commitment and the Notes
issued to it, Firstar Bank Milwaukee, National Association, in its individual
capacity as a Bank, shall have, and may exercise, the same rights and powers
under this Agreement and the Notes payable to it as any other Bank has under
this Agreement and Notes, and the terms "Bank" and "Banks", unless the context
otherwise requires, shall include Firstar Bank Milwaukee, National Association
in its individual capacity as a Bank. Firstar Bank Milwaukee, National
Association and its affiliates may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of banking or
trust business with, the Company or any of its Subsidiaries and any person,
firm or corporation who may do business with or own securities of the Company
or any Subsidiary, all as if it were not the Agent, and without any duty to
account therefor to the Banks.
8.5 Credit Investigation. Each of the Banks severally represents and
warrants to each of the other Banks and to the Agent that it has made its own
independent investigation and evaluation of the financial condition and affairs
of the Company and its Subsidiaries in connection with such Bank's execution
and delivery of this Agreement and the making of its loans and has not relied
on any information or evaluation provided by any other Bank or the Agent in
connection with any of the foregoing (other than information provided by
24
25
the Company to the Agent for transmittal to the Banks in connection with the
foregoing); and each Bank represents and warrants to each other Bank and to the
Agent that it shall continue to make its own independent investigation and
evaluation of the credit-worthiness of the Company and its Subsidiaries while
the Commitments and/or the Notes are outstanding.
8.6 Resignation. The Agent may resign as such at any time upon ten
calendar days' prior written notice to the Company and the Banks, effective at
the end of said ten days or upon the earlier appointment of a successor. If
the Agent resigns, the Banks shall appoint a successor which shall be one of
the Banks, and such Bank, upon its acceptance of such appointment, shall become
the Agent upon the express conditions contained in this Article VIII. If at
any time there is no Agent acting hereunder, the Company shall make all
required payments to, and otherwise deal directly with, the Banks and/or the
holders of the Notes, as the case may be.
ARTICLE IX
MISCELLANEOUS
9.1 Accounting Terms; Definitions. Except as otherwise provided, all
accounting terms shall be construed in accordance with generally accepted
accounting principles consistently applied and consistent with those applied in
the preparation of the financial statements referred to in section 4.5, and
financial data submitted pursuant to this Agreement shall be prepared in
accordance with such principles. As used herein:
(a) the term "Adjusted LIBOR Rate" means, for any Interest Period with
respect to an Adjusted LIBOR Rate Loan, a rate per annum (rounded upward, if
necessary, to the nearest 1/16 of 1%) determined pursuant to the following
formula:
LIBOR Rate
Adjusted LIBOR Rate =
------------------------------------------ +
LIBOR Margin
1 - LIBOR Reserve Requirement
(b) the term "Adjusted LIBOR Rate Loan" means all or part of any loan
which bears interest at or by reference to the Adjusted LIBOR Rate.
(c) the term "Affiliate" means any person, firm or corporation, which,
directly or indirectly, controls, is controlled by, or is under common
control with, the Company or a Subsidiary.
25
26
(d) the term "Borrowing Date" means each date (which must be
a Business Day) on which a loan is made to the Company or on which
any loan bearing interest at one rate is converted into a loan
bearing interest at another interest rate or is continued.
(e) the term "Business Day" means any date other than a
Saturday, Sunday or other day on which banks in the States of
Wisconsin or Illinois are required or authorized to close;
provided, however, that for purposes of determining the applicable
Interest Period for an Adjusted LIBOR Rate Loan, references to
Business Day will include only those days on which dealings in
United States Dollar deposits are carried out by United States
financial institutions in the London interbank market.
(f) the term "Capitalized Lease" means any lease which is
capitalized on the books of the lessee, or should be so
capitalized under generally accepted accounting principles.
(g) the term "Consolidated Debt to Worth Ratio" means the
relationship, expressed as a numerical ratio, between:
(i) the total of all liabilities of the Company and its
Subsidiaries which would appear on a consolidated balance
sheet of the Company and its Subsidiaries in accordance with
generally accepted principles of accounting, including
capitalized lease obligations, but excluding liabilities or
obligations for payments made by customers of the Company or
any Subsidiary for goods to be purchased from the Company or
such Subsidiary, prior to the time of shipment by the
Company or such Subsidiary; and
(ii) Consolidated Tangible Net Worth.
(h) the term "Consolidated Fixed Charge Coverage Ratio" means,
for any period, the relationship, expressed as a numerical ratio,
between:
(i) the sum of (A) Consolidated Net Earnings of the Company
and its Subsidiaries for such period before payment or provision
for applicable income and other taxes, plus (B) depreciation,
amortization and all other non-cash deductions arising in the
normal course of operations and shown on the Company's financial
statements for such period, plus (C) net interest expense on
indebtedness of the Company and its Subsidiaries (including the
interest component of Capitalized Leases) for such period, plus (D)
rental expense under leases other than Capitalized Leases for such
period, and
(ii) the sum of (A) net interest expense on indebtedness of
the Company and its Subsidiaries (including the interest component
of Capitalized Leases) for such period, (B) scheduled principal
payments on indebtedness of the Company and its Subsidiaries during
such period, (C) the principal component of required payments in
respect of Capitalized Leases during such period and (D) rental
expense under leases other than Capitalized Leases for such period,
all as determined in accordance with generally accepted accounting
principles applied on a consolidated basis to the Company and its
Subsidiaries.
(i) the term "Consolidated Net Earnings" means:
26
27
(i) all revenues and income derived from operation in the
ordinary course of business (excluding extraordinary gains and
profits upon the disposition of investments and fixed assets),
Minus:
(ii) 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 in accordance with generally accepted accounting
principles as applied on a consolidated basis to the Company and
its Subsidiaries.
(j) the term "Consolidated Tangible Net Worth" means the
total of all assets properly appearing on the consolidated balance
sheet of the Company and its Subsidiaries in accordance with
generally accepted accounting principles, less the sum of the
following:
(i) the book amount of all such assets which would be treated
as intangibles under generally accepted accounting principles,
including, without limitation, all such items as good will,
trademarks, trademark rights, trade names, tradename rights,
brands, copyrights, patents, patent rights, licenses, deferred
charges and unamortized debt discount and expense;
(ii) anywrite-up in the book value of any such assets
resulting from a revaluation thereof subsequent to September 30,
1996;
(iii) all reserves (to the extent not already deducted from
assets), including reserves for depreciation, obsolescence,
depletion, insurance, and inventory valuation, but excluding
contingency reserves not allocated for any particular purpose and
not deducted from assets;
(iv) the amount, if any, at which any shares of stock of the
Company or any Subsidiary appear on the asset side of such
consolidated balance sheet;
(v) all liabilities of the Company and its Subsidiaries shown
on such balance sheet, other than liabilities subordinated to
obligations owed to the Banks by subordination agreements in form
and substance satisfactory to the Banks; and
(vi) all investments in foreign affiliates and nonconsolidated
domestic affiliates.
(k) the term "Controlled Group" means a controlled group of
corporations as defined in Section 1563 of the Internal Revenue Code of
1986, as amended, of which the Company is a part.
(l) the term "Default" means any condition or event which with the
passage of time or the giving of notice or both would constitute an Event
of Default.
27
28
(m) the term "Environmental Audit" means a review for the purpose of
determining whether the Company and each Subsidiary complies with
Environmental Laws and whether there exists any condition or circumstance
which requires or will require a cleanup, removal, or other remedial
action under Environmental Laws on the part of the Company or any
Subsidiary including, but not limited to, some or all of the following:
(i) on site inspection including review of site geology,
hydrogeology, demography, land use and population;
(ii) taking and analyzing soil borings and installing ground
water monitoring xxxxx and analyzing samples taken from such xxxxx;
(iii) taking and analyzing of air samples and testing of
underground tanks;
(iv) reviewing plant permits, compliance records and
regulatory correspondence, and interviewing enforcement staff at
regulatory agencies;
(v) reviewing the operations, procedures and documentation of
the Company and its Subsidiaries; and
(vi) interviewing past and present employees of the Company
and its Subsidiaries.
(n) the term "Environmental Laws" means all federal, state and local
laws including rules of common law, 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, the Toxic Substances Control Act, the Hazardous Materials
Transportation Act, regulations of the Environmental Protection Agency,
regulations of the Nuclear Regulatory Agency, and regulations of any
state department of natural resources or state environmental protection
agency now or at any time hereafter in effect.
(o) the term "ERISA" means the Employee Retirement Income Security
Act of 1974, as the same may be in effect from time to time.
(p) the term "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 conducted by brokers in federal funds, as
published for such day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the
average of the quotations 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.
(q) the term "Interest Period" means with respect to each Adjusted
LIBOR Rate Loan, the period commencing on the applicable Borrowing Date
and ending one, two, three or six months thereafter, as specified by the
Company in the related notice of borrowing pursuant to section 2.2, and
with respect to a Variable Rate Loan converted to an Adjusted LIBOR Rate
28
29
Loan, or in the case of a continuation of an Adjusted LIBOR Rate Loan for an
additional Interest Period, the period commencing on the date of such
conversion or continuation and ending one, two, three or six months thereafter,
as specified by the Company in the related notice pursuant to section 2.5,
provided that:
(i) any Interest Period which would otherwise end on a day
which is not a Business Day will be extended to the next succeeding
Business Day unless such Business Day falls in another calendar
month, in which case such Interest Period will end on the
immediately preceding Business Day;
(ii) any Interest Period which begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in a calendar month at the end of such Interest
Period) will, subject to clause (iii) below, end on the last
Business Day of a calendar month; and
(iii) in no event may any Interest Period extend beyond the
Termination Date.
(r) the term "LIBOR Margin" means 7/8 of 1% per annum.
(s) the term "LIBOR Rate" means, for any Interest Period with
respect to an Adjusted LIBOR Rate Loan, the per annum rate of
interest determined by the Agent to be the arithmetic average
(rounded upward, if necessary, to the nearest 1/16 of 1%) of the
offered rates for deposits in United States Dollars for the
applicable Interest Period which appear on the Telerate Screen
Page 3750 (or such other page of Telerate or such other service on
which the appropriate information may be displayed), on the
electronic communications terminals in the Agent's money center,
as of 11 a.m., London time, on the Business Day which is two
Business Days before the applicable Borrowing Date ("Calculation
Date"), except as provided below. If fewer than two offered rates
appear for the applicable Interest Period or if the appropriate
screen is not accessible as of such time, the term "LIBOR Rate"
shall mean the per annum rate of interest determined by the Agent
to be the average (rounded up, if necessary, to the nearest 1/16
of 1%) of the rates at which deposits in U.S. dollars are offered
to the Agent by four major banks in the London interbank market,
as selected by the Agent ("Reference Banks"), at approximately 11
a.m., London time, on the Calculation Date for the applicable
Interest Period and in an amount equal to the principal amount of
the applicable Adjusted LIBOR Rate Loan. The Agent will request
the principal London office of each of such Reference Banks to
provide a quotation of its rate. If at least two such quotations
are provided, the applicable rate will be the arithmetic mean of
the quotations. If fewer than two quotations are provided as
requested, the applicable rate will be the arithmetic mean of the
rates quoted by major banks in New York City, selected by the
Agent, at approximately 11 a.m., New York City time, on the
Calculation Date for loans in United States Dollars to leading
European banks for the applicable Interest Period and in an amount
equal to the principal amount of the applicable Adjusted LIBOR
Rate Loan.
(t) the term "LIBOR Reserve Requirement" means, for any
Interest Period with respect to an Adjusted LIBOR Rate Loan, the
stated maximum rate of all reserve requirements (including all
basic, supplemental, marginal, emergency and other reserves and
taking into account any transitional adjustments or other
scheduled changes in reserve requirements during such Interest
Period) that is specified on the first day of
29
30
such Interest Period by the Board of Governors of the Federal Reserve
System for determining the maximum reserve requirement with respect
to eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of such Board of Governors) applicable
to the class of banks of which any Bank is a member.
(u) the term "Loan Document" means each of this Agreement,
the Notes and the Guaranties, and the term "Loan Documents" means
this Agreement, the Notes and the Guaranties collectively.
(v) the term "Multiemployer Plan" means a multiemployer
pension plan within the meaning of the Multiemployer Pension Plan
Amendment Act, as amended from time to time.
(w) the term "Permitted Liens" means:
(i) liens outstanding on September 30, 1996, and
shown on the financial statements referred to in
section 4.5 above, and liens described on Schedule
9.1(w);
(ii) liens for taxes, assessments or governmental charges, and
liens incident to construction, which are either not delinquent or
are being contested in good faith by the Company or a Subsidiary by
appropriate proceedings which will prevent foreclosure of such
liens, and against which adequate reserves have been provided; and
easements, restrictions, minor title irregularities and similar
matters which have no adverse effect as a practical matter upon the
ownership and use of the affected property by the Company or any
Subsidiary;
(iii) liens or deposits in connection with worker's
compensation or other insurance or to secure customs' duties,
public or statutory obligations in lieu of surety, stay or appeal
bonds, or to secure performance of contracts or bids (other than
contracts for the payment of money borrowed), or deposits required
by law or governmental regulations or by any court order, decree,
judgment or rule as a condition to the transaction of business or
the exercise of any right, privilege or license; or other liens or
deposits of a like nature made in the ordinary course of business;
and
(iv) purchase money liens on property (other than inventory)
acquired in the ordinary course of business, to finance or secure a
portion of the purchase price thereof, and liens on property
acquired existing at the time of acquisition; provided that in each
case such lien shall be limited to the property so acquired and the
liability secured by such lien does not exceed either the purchase
price or the fair market value of the asset acquired.
(x) the term "Person" means an individual, partnership,
corporation, business trust, joint stock company, trust,
unincorporated association, limited liability company, joint
venture, governmental agency or authority or other entity of
whatever nature.
(y) the term "Plan" means any employee pension benefit plan
subject to Title IV of ERISA 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,
30
31
or any member of the Controlled Group is required to contribute on
behalf of any of its employees.
(z) the term "Prime Rate" means the rate of interest
announced by the Agent as its prime or reference rate for interest
rate calculations, as such rate may change from time to time. The
Prime Rate may not be the lowest interest rate charged by the
Agent.
(aa) 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 the treatment of any extensions of
credit of the Banks.
(ab) the term "Reportable Event" means a reportable event as
that term is defined in Title IV of ERISA.
(ac) the term "Required Banks" means Banks holding at least
66 b% of the aggregate Commitment, or if the Commitments have been
terminated, Banks holding at least 66 b% of the aggregate
principal amount owed by the Company hereunder.
(ad) the term "Subsidiary" means a corporation, partnership
or other entity of which the Company owns, directly or through
another Subsidiary, at the date of determination, more than 50% of
the outstanding stock (or other shares of beneficial interest)
having ordinary voting power for the election of directors,
irrespective of whether or not at such time stock of any other
class or classes might have voting power by reason of the
happening of any contingency, or holds at least a majority of
partnership or similar interests, or is a general partner, and any
other Affiliate that is included in the Company's consolidated
financial statements furnished to the Bank pursuant to section 6.6
hereof.
(ae) the term "Unfunded Liabilities" means, with regard to
any Plan, the excess of the current value of the Plan's benefits
guaranteed under ERISA over the current value of the Plan's assets
allocable to such benefits.
(af) the term "Variable Rate" means the rate per annum equal
to the Prime Rate minus 1/4 of 1% per annum.
(ag) the term "Variable Rate Loan" means any loan which bears
interest at or by reference to the Variable Rate.
9.2 Expenses; Indemnity. () The Company shall pay or reimburse
each Bank and the Agent for all reasonable out-of-pocket costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) paid
or incurred by the Agent or such Bank in connection with (i) the negotiation,
preparation, execution, delivery, and administration of this Agreement, the
Notes, the Loan Documents and any other document required hereunder or
thereunder, including without limitation any amendment, supplement,
modification or waiver of or to any of the foregoing, (ii) the enforcement,
protection or preservation of its rights under this Agreement, the Notes, the
Loan Documents and any other document required hereunder or thereunder, before
and after judgment, including without limitation defending against any claim
made against the Agent or such Bank by the Company, any
31
32
Subsidiary or any third party as a result of or in any way relating to any
matter referred to in subsection (i) or (ii) of this section; and (iii) any and
all taxes, other than taxes levied upon the net income of such Bank by the
federal government or the state (or political subdivision of a state) where
such Bank's principal office is located, which may be payable or determined to
be payable in connection with the negotiation, preparation, execution,
delivery, administration or enforcement of this Agreement, the Notes, the Loan
Documents or any other document required hereunder or thereunder or any
amendment, supplement, modification or waiver of or to any of the foregoing, or
consummation of any of the transactions contemplated hereby or thereby.
(b) The Company agrees to indemnify the Agent and each Bank against any
and all losses, claims, damages, liabilities and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred by the Agent or
such Bank arising out of, in any way connected with, or as a result of (i) any
acquisition or attempted acquisition of stock or assets of another person or
entity by the Company or any Subsidiary, (ii) the use of any of the proceeds of
any loans made hereunder by the Company or any Subsidiary for the making or
furtherance of any such acquisition or attempted acquisition, (iii) any breach
or alleged breach by the Company of or any liability or alleged liability of
the Company under any Environmental Law, or any liability or alleged liability
incurred by the Agent or such Bank under any Environmental Law in connection
with this Agreement, any Loan Document or the transactions contemplated
hereunder or thereunder, (iv) the negotiation, preparation, execution,
delivery, administration, and enforcement of this Agreement, the Notes, the
Loan Documents and any other document required hereunder or thereunder,
including without limitation any amendment, supplement, modification or waiver
of or to any of the foregoing or the consummation or failure to consummate the
transactions contemplated hereby or thereby, or the performance by the parties
of their obligations hereunder or thereunder.
(c) The foregoing agreements and indemnities shall remain operative and in
full force and effect regardless of termination of this Agreement, the
consummation of or failure to consummate either the transactions contemplated
by this Agreement or any amendment, supplement, modification or waiver, the
repayment of any loans made hereunder, the invalidity or unenforceability of
any term or provision of this Agreement or any of the Notes or any Loan
Document, or any other document required hereunder or thereunder, any
investigation made by or on behalf of the Agent, any Bank, the Company or any
Subsidiary, or the content or accuracy of any representation or warranty made
under this Agreement, any Loan Document or any other document required
hereunder or thereunder.
9.3 Securities Act of 1933. Each Bank represents that it is acquiring the
Notes payable to it without any present intention of making a sale or other
distribution of such Notes, provided each Bank reserves the right to sell
participations in its Notes to the extent permitted by section 9.10.
9.4 No Agency. Except as expressly provided herein, nothing in this
Agreement and no action taken pursuant hereto shall cause any Bank to be
treated as the agent of any other Bank, or shall be deemed to constitute the
Banks a partnership, association, joint venture or other entity.
9.5 Successors. The provisions of this Agreement shall inure to the
benefit of any holder of one or more of the Notes, and shall inure to the
benefit of and be binding upon any successor to any of the parties hereto. No
delay on the part of any Bank or any holder of any of the Notes in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise of any right, power or privilege hereunder
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 are not exclusive of any rights or remedies which the Banks or the holder
of any of the Notes would otherwise have.
32
33
9.6 Survival. All agreements, representations and warranties made herein
shall survive the execution of this Agreement, the making of the loans
hereunder and the execution and delivery of the Notes.
9.7 Wisconsin Law. This Agreement and the Notes issued hereunder shall be
governed by and construed in accordance with the internal laws of the State of
Wisconsin, except to the extent superseded by federal law.
9.8 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
9.9 Notices. All communications or notices required under this Agreement
shall be deemed to have been given on the date when deposited in the United
States mail, postage prepaid, and addressed as follows (unless and until any of
such parties advises the other in writing of a change in such address): (a) if
to the Company, with the full name and address of the Company as shown on this
Agreement below; and (b) if to any of the Xxxxx with the full name and address
of such Bank as shown on this Agreement above, to the attention of the officer
of the Bank executing the form of acceptance of this Agreement.
9.10 Participations. Neither the Company nor any Bank may assign its
rights under this Agreement. The Company agrees that each Bank may, at its
option, sell participations in its Notes to another financial institution or
institutions, provided each such institution has been approved in writing by
the Company and the Agent, and, in connection with each such sale, and
thereafter, disclose to any such purchaser or potential purchaser of such
interest any financial information such Bank may have concerning such Company
and its Subsidiaries.
9.11 Entire Agreement; No Agency. This Agreement and the other documents
referred to herein contain the entire agreement between the Banks and the
Company with respect to the subject matter hereof, superseding all previous
communications and negotiations, and no representation, undertaking, promise or
condition concerning the subject matter hereof shall be binding upon the Banks
unless clearly expressed in this Agreement or in the other documents referred
to herein. Nothing in this Agreement or in the other documents referred to
herein and no action taken pursuant hereto shall cause the Company to be
treated as an agent of any Bank, or shall be deemed to constitute the Banks and
the Company a partnership, association, joint venture or other entity.
9.12 No Third Party Benefit. This Agreement is solely for the benefit of
the parties hereto and their permitted successors and assigns. No other person
or entity shall have any rights under, or because of the existence of, this
Agreement.
9.13 CONSENT TO JURISDICTION. THE COMPANY HEREBY CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITUATED IN MILWAUKEE COUNTY,
WISCONSIN, AND WAIVES ANY OBJECTION BASED ON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS, WITH REGARD TO ANY ACTIONS, CLAIMS,
DISPUTES OR PROCEEDINGS RELATING TO THIS AGREEMENT, ANY NOTE, ANY OF THE LOAN
DOCUMENTS, OR ANY OTHER DOCUMENT DELIVERED HEREUNDER OR IN CONNECTION HEREWITH,
OR ANY TRANSACTION ARISING FROM OR CONNECTED TO ANY OF THE FOREGOING. THE
COMPANY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND CONSENTS TO
ALL SUCH SERVICE OF PROCESS MADE BY MAIL OR BY MESSENGER DIRECTED TO IT AT THE
ADDRESS SPECIFIED BELOW. Nothing herein shall affect the right of the Banks,
or any of them, to serve process in any manner permitted by law, or limit the
right of any Banks, or any of them, to bring proceedings against the Company or
its property or assets in the competent courts of any other jurisdiction or
jurisdictions.
33
34
9.14 WAIVER OF JURY TRIAL. THE COMPANY AND THE BANKS HEREBY JOINTLY AND
SEVERALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT, ANY NOTE, ANY OF THE LOAN DOCUMENTS, OR ANY OTHER
DOCUMENT DELIVERED HEREUNDER OR IN CONNECTION HEREWITH, OR ANY TRANSACTION
ARISING FROM OR CONNECTED TO ANY OF THE FOREGOING. THE COMPANY AND THE BANKS
EACH REPRESENT THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY GIVEN.
9.15 LIMITATION OF LIABILITY. THE COMPANY, THE AGENT AND THE BANKS HEREBY
WAIVE ANY RIGHT ANY OF THEM MAY NOW OR HEREAFTER HAVE TO CLAIM OR RECOVER FROM
ANY OTHER PARTY HERETO ANY CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES.
If the foregoing is satisfactory to you, please sign the form of
acceptance below and return a signed counterpart hereof to the Company. When
this instrument has been executed nand delivered by all of the Banks, it will
evidence a binding agreement between the Banks and the Company.
Very truly yours,
(CORPORATE SEAL) PLEXUS CORP.
Address:55 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000
By: /s/
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
thereof.
FIRSTAR BANK MILWAUKEE,
NATIONAL ASSOCIATION,
as the Agent and as a Bank
By: /s/
Title:
XXXXXX TRUST AND SAVINGS BANK
By: /s/
Title:
BANK ONE, WISCONSIN
By: /s/
Title:
34
35
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT 1.1
PROMISSORY NOTE
$____________ March 20, 1997
FOR VALUE RECEIVED, PLEXUS CORP., a Wisconsin corporation, promises to pay
to the order of ____________________ ________________________, without setoff
or counterclaim, the principal sum of __________________ Dollars
($____________) at the Main Office of Firstar Bank Milwaukee, National
Association, in Milwaukee, Wisconsin, on July 31, 2002. This Note shall bear
interest payable on the dates and at the rate or rates set forth in the Credit
Agreement referred to below. All amounts payable under this Note and the
Agreement shall be payable in lawful money of the United States of America.
This Note constitutes one of the Revolving Credit Notes issued under a
Credit Agreement dated as of March 20, 1997 (the "Credit Agreement"), among the
undersigned and Firstar Bank Milwaukee, National Association, for itself and as
Agent, and the other Banks from time to time party thereto, to which Credit
Agreement reference is hereby made for a statement of the terms and conditions
on which loans in part evidenced hereby were or may be made, and for a
description of the conditions upon which this Note may be prepaid, in whole or
in part, or its maturity accelerated.
This Note is entitled to the benefits of the Credit Agreement and all of
the Loan Documents referred to in the Credit Agreement.
This Note shall be construed in accordance with the laws (without regard
to principles of conflict of laws) of the State of Wisconsin. The undersigned
waives presentment, protest and notice of dishonor, and agrees, in the event of
default hereunder, to pay all costs and expenses of collection, including
reasonable attorneys' fees.
PLEXUS CORP.
By:
Name:
Title:
(CORPORATE SEAL)
35
36
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT 2.2
LOAN REQUEST
_______________, 19__
Firstar Bank Milwaukee,
National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Re: Credit Agreement Dated as of March 20, 1997
(the "Agreement")
Gentlemen:
The undersigned hereby applies to you, as Agent, for a loan under the
above Agreement to be made on ____________, 19__ in the principal amount of
$_____________________.
The undersigned hereby certifies as follows:
() All of the representations and warranties set forth in Article IV of
such Agreement continue to be true on the date hereof.
() At the date hereof, no Default or Event of Default under said Agreement
has occurred and is continuing.
() There has been no material adverse change in the business operations or
financial condition of the undersigned and its Subsidiaries, taken as a whole,
since ________________, 19__.
The loans will bear interest at the:
[check appropriate box]
[_____] Variable Rate
[_____] Adjusted LIBOR Rate
If the loans will bear interest at the Adjusted LIBOR Rate, the Interest
Period shall be ____ months (one, two, three or six months).
Capitalized definitional terms used and not otherwise defined herein shall
have the meanings ascribed to them in the Agreement.
36
37
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Very truly yours,
PLEXUS CORP.
By:
Title:
(CORPORATE SEAL)
37
38
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT 2.5
CONVERSION/CONTINUATION REQUEST
_______________, 19__
Firstar Bank Milwaukee, National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Re: Credit Agreement Dated as of March 20, 1997
(the "Agreement")
Gentlemen:
The undersigned elects to convert/continue the following portion of the
outstanding loans under the Agreement:
. The type of loans to be converted/continued is currently:
[check appropriate box]
[_____] Variable Rate Loans
[_____] Adjusted LIBOR Rate Loans
. The amount of loans to be converted/continued:
$_________________________
. The type of loans into which the current loans shall be converted:
[check appropriate box]
[_____] Variable Rate Loans
[_____] Adjusted LIBOR Rate Loans
. Date of Conversion/Continuation: ________________
. Duration of Interest Period: _____ months [one, two, three or six
months] (applicable only to Adjusted LIBOR Rate Loans).
38
39
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
. The amount of the Adjusted LIBOR Rate Loans into which such loans are
converted/continued:
$_____________________ (applicable only to Adjusted LIBOR Rate Loans)
. Capitalized definitional terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Agreement.
Very truly yours,
PLEXUS CORP.
By:
Title:
(Corporate Seal)
39
40
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SCHEDULE 4.1
SUBSIDIARIES
40
41
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SCHEDULE 9.1(w)
PERMITTED LIENS
41
