EXHIBIT 4.1
AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
BANDO XXXXXXXXXX SMALL BUSINESS LENDING CORPORATION,
THE FINANCIAL INSTITUTIONS PARTIES HERETO
AND
FIRSTAR BANK MILWAUKEE, N.A.,
AS AGENT
DATED AS OF APRIL 30, 1999
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 30, 1999, is
among BANDO XXXXXXXXXX SMALL BUSINESS LENDING CORPORATION, a Wisconsin
corporation (the "Company"), the financial institutions parties hereto
(individually a "Lender" and collectively the "Lenders") and FIRSTAR BANK
MILWAUKEE, N.A., as agent for the Lenders (in such capacity, the "Agent").
RECITALS
The Company, the Lenders and the Agent acknowledge the following:
A. The Company, the Lenders from time to time parties thereto and the Agent
are parties that certain Credit Agreement dated as of March 11, 1998 (the
"Original Credit Agreement").
B. The Original Credit Agreement has been amended several times and the
Company, the Lenders party hereto and the Agent desire to amend and restate the
Original Credit Agreement in its entirety.
AGREEMENTS
In consideration of the Recitals and the mutual promises contained herein,
the Company, the Lenders and the Agent agree as follows:
1. Definitions. As used in this Agreement, the following terms have the
following meanings:
"Adjusted LIBOR Rate" means, with respect to a LIBOR Rate Loan for the
relevant Interest Period, a rate per annum (rounded upward, if necessary, to the
next higher 1/16 of 1%) determined according to the following formula:
Adjusted LIBOR Rate = LIBOR Rate
--------------------------------
1.00 - LIBOR Reserve Requirement
"Adjusted Tangible Assets" means, with respect to the Company on any date
of determination, all assets except: (a) trademarks, tradenames, franchises,
goodwill, and other similar intangibles; (b) assets located and notes and
receivables due from obligors domiciled outside the United States of America,
Puerto Rico, or Canada; and (c) accounts, notes, and other receivables due from
Affiliates or employees.
"Adjusted Tangible Net Worth" means, with respect to the Company on any
date of determination, the remainder of (a) net book value (after deducting
related depreciation, obsolescence, amortization and other proper reserves) at
which the Adjusted Tangible Assets of the Company would be shown on a balance
sheet of the Company at such date, but excluding any amounts arising from
write-ups of assets, minus (b) the amount at which the Company's liabilities
(other than Subordinated Debt, preferred stock, capital stock, surplus, and
retained earnings) would be shown on such balance sheet, and including as
liabilities all reserves for contingencies and other potential liabilities.
"Affiliate" of any Person means any other Person, directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether by ownership of stock (or other ownership interests), by contract or
otherwise. Although not Affiliates within the definition of this term, for
purposes of this Agreement, Xxx Xxxxxxxxx Original Dolls, Inc. and Licensed
Products, Inc. shall be deemed Affiliates.
"Applicable Margin" means (a) in the case of Base Rate Loans, 0% and (b) in
the case of LIBOR Rate Loans, 1.375%.
"Applicable Percentage" means, with respect to each Third Party Loan, (a)
100% in the case of a Third Party Loan which is totally owned and funded by the
Company and with respect to which the Company has neither assigned such loan nor
granted a participation interest therein, (b) 0% in the case of either (i) a
Third Party Loan for which the Company has sold a 50% or greater participation
interest to a third party or (ii) a Third Party Loan for which the Company has
sold a participation interest to a third party and such third party is entitled
to receive principal and interest payments on a preferential basis and (c) in
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all other cases, the Applicable Percentage shall be the percentage interest in
such Third Party Loan retained by the Company.
"Appraised Value" means the fair market value of real property securing a
Third Party Loan or constituting Eligible Leased Real Estate as determined by an
MAI appraiser acceptable to the Agent in a written appraisal which satisfies all
regulatory requirements applicable to the Lenders; provided, however, that in
each circumstance in which the Appraised Value exceeds $1,000,000 or for an
appraisal of property securing a Nonperforming Loan, such appraisal shall be
reviewed by the Agent and if the Agent, in its reasonable judgment, determines
that the value of such real property is less that the amount shown in the
applicable appraisal, then the Appraised Value shall be such lesser amount
determined by the Agent; provided, further, that in the case of a Nonperforming
Loan, the Appraised Value shall be $0 until the date the Agent receives a new
appraisal of the relevant real property, or the Company and the Majority Lenders
otherwise agree.
"Base Rate" means, for any day, the Prime Rate in effect for such day.
"Base Rate Loan" means a Revolving Loan that bears interest at a rate
determined by reference to the Base Rate.
"Borrowing Base Amount" means, on each date of determination, an amount
equal to the sum of:
(a) the Owner-Occupied Real Estate Loan Borrowing Base Amount;
(b) the Leased Real Estate Borrowing Base Amount;
(c) the lesser of (i) 80% of the Applicable Percentage of the outstanding
principal balances of Eligible Construction Loans and (ii) $5,000,000;
(d) 80% of Eligible Construction Costs; and
(e) the Transferred Loan Borrowing Base Amount.
"Borrowing Base Certificate" means a certificate in substantially the form
of Exhibit D.
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"Borrowing Date" means each date on which a Revolving Loan is made by a
Lender to the Company or on which a Letter of Credit is issued by the Agent at
the request of the Company.
"Business Day" means a day (other than Saturday or Sunday) on which banks
are open for business in Milwaukee, Wisconsin and Chicago, Illinois and, with
respect to the making, payment or rate determination of a LIBOR Rate Loan, a day
on which dealings in United States dollars are carried on in the London
interbank market.
"Capital Funds" means the sum of Adjusted Tangible Net Worth plus the
outstanding principal amount of all Subordinated Debt.
"Capitalized Lease" means any lease, the obligations under which have been,
or in accordance with GAAP are required to be, recorded as a capital lease
liability on the balance sheet of the Company.
"Cash Collateral" means cash or cash equivalents reasonably satisfactory to
the Agent, held by the Agent for the ratable benefit of the Agent and the
Lenders, as security for the Company's obligations under the Loan Documents. The
Company hereby grants to the Agent, for the benefit of the Agent and the Lenders
a security interest in all such cash and cash equivalents. Cash Collateral
consisting of cash or deposit account balances shall be maintained in blocked,
non-interest bearing deposit accounts at the Agent.
"Closing Date" means the first Borrowing Date.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Custodian" means Firstar Bank Milwaukee, N.A., as successor by
merger to Firstar Trust Company, or any successor appointed as the Collateral
Custodian pursuant to the Collateral Custodian Agreement.
"Collateral Custodian Agreement" means that certain Collateral Custodian
Agreement dated as of March 11, 1998 among the Company, the Agent and the
Collateral Custodian, as amended, revised, supplemented or restated from time to
time.
"Commercial Paper" means commercial paper issued by the Company and placed
by a CP Placement Agent.
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"Compliance Certificate" means a certificate in substantially the form of
Exhibit E.
"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person with respect to any Indebtedness, lease, dividend,
letter of credit or other obligation (the "primary obligation") of another
Person, including (a) any obligation to purchase, repurchase or otherwise
acquire a primary obligation or any security therefor, (b) any obligation to
advance or provide funds for the payment or discharge of a primary obligation or
to maintain the working capital or net worth of another Person and (c) any
obligation to assure or hold harmless the holder of a primary obligation against
loss.
"Controlled Group" means a group of trades or businesses (whether or not
incorporated) under common control, as defined in the regulations issued
pursuant to section 414(c) of the Code or such other regulations prescribed by
the Pension Benefit Guaranty Corporation pursuant to section 4001(b)(1) of
ERISA, of which the Company is a part.
"Conversion/Continuation Notice" means a notice in substantially the form
of Exhibit C.
"CP Placement Agent" means either Firstar or U.S. Bank acting in their
capacity as a placement agent for the Commercial Paper under a CP Placement
Agreement.
"CP Placement Agreement" means the commercial paper placement agreements,
letter agreements or such other documents or agreements between the Company and
Firstar or U.S. Bank, as the case may be, setting forth the terms under which
Firstar or U.S. Bank, as the case may be, will place Commercial Paper, as
amended, revised, supplemented or restated from time to time.
"Default" means any act, event, condition or omission which, with the
giving of notice or lapse of time, would constitute an Event of Default if
uncured or unremedied.
"Eligible Construction Costs" means, with respect to the construction of a
facility that upon completion will constitute Eligible Leased Real Estate, all
costs relating to acquiring, constructing, designing, engineering and
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equipping the facility to be owned by the Company, provided that Soft Costs
shall not exceed 5% of total Eligible Construction Costs.
"Eligible Construction Loan" means a Third Party Loan to fund the purchase
of land and the construction of a facility to be owned and occupied by the
borrower (which is not an Affiliate of the Company) (a) which facility, upon
completion, will be utilized by the borrower in the ordinary course of its
business, (b) with respect to which no default has occurred under the loan
documents evidencing such Third Party Loan and (c) with respect to which the
Company has granted the Agent a first priority security interest in the
underlying promissory note executed by such borrower, an assignment of the
mortgage securing such promissory note and a security interest in or lien upon
any other collateral related thereto as required by the provisions of the
Collateral Custodian Agreement. Upon occupancy of such facility the Third Party
Loan shall become an Owner-Occupied Real Estate Loan.
"Eligible Leased Real Estate" means real property owned by the Company and
leased to a lessee (a) which is used by the lessee in the conduct of its
business activities and (b) with respect to which the Company has provided the
Collateral Custodian with the documents, instruments and agreements described in
section 3.3 of the Collateral Custodian Agreement. The only Eligible Leased Real
Estate with an Affiliate of the Company as a tenant are (or will be) (a) the
existing lease of its principal executive office to InvestorsBank and (b) the
existing facility leased to Licensed Products, Inc.
"Eligible Owner-Occupied Real Estate Loan" means an Owner-Occupied Real
Estate Loan with respect to which the Company has provided the Collateral
Custodian with the documents, instruments and agreements described in section
3.4 of the Collateral Custodian Agreement. The only Owner-Occupied Real Estate
Loans to an Affiliate of the Company which may be an Eligible Owner-Occupied
Real Estate Loan is a loan to Xxx Xxxxxxxxx Original Dolls, Inc. in an amount
not to exceed 80% of Appraised Value, subject to a maximum of $2,500,000.
"Eligible Third Party Loans" means Eligible Construction Loans and Eligible
Owner-Occupied Real Estate Loans.
"Environmental Laws" means all federal, state and local laws including
statutes, regulations, ordinances, codes, rules and other governmental
restrictions and requirements relating to the discharge of air pollutants, water
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pollutants or process waste water or otherwise relating to the environment or
hazardous substances including, but not limited to, the Federal Solid Waste
Disposal Act, the Federal Clean Air Act, the Federal Clean Water Act, the
Federal Resource Conservation and Recovery Act of 1976, the Federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
regulations of the Environmental Protection Agency, regulations of the Nuclear
Regulatory Commission and regulations of any state department of natural
resources or state environmental protection agency now or at any time hereafter
in effect.
"ERISA" means, at any date, the Employee Retirement Income Security Act of
1974, and the regulations thereunder, all as the same shall be in effect at such
date.
"Established Value" means (a) in the case of an Eligible Construction Loan,
the lower of cost or Appraised Value of the real property financed thereby, (b)
in the case of Eligible Leased Real Estate, the lesser of the Appraised Value or
the total cost (determined in accordance with GAAP) of such real property and
(c) in the case of an Eligible Owner-Occupied Real Estate Loan, the Appraised
Value of the real property securing such loan.
"Event of Default" means the occurrence of any of the events described in
section 7.1.
"Federal Funds Rate" means, for any day, an interest rate per annum equal
to the weighted average of the rates on overnight, Federal funds transactions
with brokers of the Federal Reserve System, as published for such day by the
Federal Reserve Bank of New York in the weekly statistical release designated as
H.15(519), or any successor publication, on the preceding Business Day opposite
the caption "Federal Funds Rate (Effective)", or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it. In the case of a day which is not
a Business Day, the Federal Funds Rate for such day shall be the Federal Funds
Rate for the preceding Business Day. "Firstar" means Firstar Bank Milwaukee,
N.A., and its successors.
"GAAP" means generally accepted accounting principles in effect in the
United States from time to time.
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"Indebtedness" means (a) all indebtedness for borrowed money created,
incurred or assumed by a Person, (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business), (c) all
non-contingent reimbursement or payment obligations with respect to letters of
credit and surety instruments, (d) all obligations evidenced by notes, bonds,
debentures or similar instruments, (e) all indebtedness created or arising under
conditional sale or other title retention agreements, (f) Capitalized Leases,
(g) indebtedness for borrowed money secured by any mortgage, lien, pledge or
security interest on property of a Person even though it has not assumed or
otherwise become liable for the payment thereof and (h) a Person's obligations
under Swap Contracts.
"Interest Period" means, with respect to a LIBOR Rate Loan, a period of
one, two or three months commencing on (and including) a Business Day selected
by the Company pursuant to section 2.3(a) or 2.4(c) of this Agreement and ending
on (but excluding) the day which corresponds numerically to such date one, two
or three months thereafter (or, if such month has no numerically corresponding
date, on the last Business Day of such month), provided that:
(a) if an Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next following Business Day
(unless such next following Business Day is in a new calendar month in which
case such Interest Period shall end on the immediately preceding Business Day);
and
(b) no Interest Period may end later than the Maturity Date.
"Lease Portfolio Coverage Ratio" means the relationship, expressed as a
numerical ratio, between:
(a) an amount equal to the rental income received by or on behalf the
Company during the month preceding the date of determination multiplied by 12;
and
(b) the net book value of the properties owned by the Company's and subject
to lease;
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all as determined in accordance with GAAP.
"Leased Real Estate Borrowing Base Amount" means an amount equal to the
lesser of:
(a) $30,000,000; or
(b) the sum of:
(i) in the case of Eligible Leased Real Estate which is not a
Nonperforming Lease, an amount equal to 80% of the Established Value of
such Eligible Leased Real Estate; and
(ii) in the case of Eligible Leased Real Estate which is a
Nonperforming Lease, an amount equal to 50% of the Established Value of
such Eligible Leased Real Estate.
"Letter of Credit" means a letter of credit issued by the Agent at the
request of the Company pursuant to section 2.1(c) and "Letters of Credit" means
all such letters of credit.
"Leverage Ratio" means, on each date of determination, the relationship,
expressed as a numerical ratio, between (a) Total Liabilities and (b) Capital
Funds; all as determined for the Company in accordance with GAAP.
"LIBOR Rate" means, with respect to a LIBOR Rate Loan for the applicable
Interest Period, the interest rate at which deposits in United States dollars,
in an amount approximately equal to the requested LIBOR Rate Loan and having a
maturity approximately equal to the requested Interest Period, are offered by
the Agent to prime banks in the London interbank market at approximately 11 a.m.
(London time) two Business Days prior to the first day of such Interest Period.
The LIBOR Rate determined by the Agent shall, in the absence of manifest error,
be conclusive.
"LIBOR Rate Loan" means a Revolving Loan bearing interest at a rate
determined by reference to the Adjusted LIBOR Rate.
"LIBOR Reserve Requirement" means, with respect to a LIBOR Rate Loan for
the applicable Interest Period, the percentage (expressed as a decimal) equal to
the maximum aggregate reserve requirements (including, without limitation, any
marginal, special, emergency and supplemental reserves)
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established by the Board of Governors of the Federal Reserve System for
"eurocurrency liabilities" (as defined in Regulation D of such Board), or for
other liabilities which include deposits of the type used in determining the
LIBOR Rate, having a term approximately equal to the applicable Interest Period.
"Loan Documents" means this Agreement, the Notes, the Security Documents,
the Collateral Custodian Agreement, the Parent Guaranty and all other documents,
instruments and agreements related to or executed in connection with this
Agreement and the transactions contemplated hereby.
"LOC Commitment" means the commitment of the Agent to issue, and the
commitment of the Lenders severally to
participate in, standby Letters of Credit issued solely in connection with
Transferred Loans, from time to time issued or outstanding under section 2.1(c),
in an aggregate amount not to exceed on any date the amount of $10,000,000;
provided that the LOC Commitment is a subfacility of the Revolving Loan
Commitment, rather than a separate, independent commitment.
"LOC Exposure" means an amount equal to the sum of (a) the aggregate amount
available for drawing under all outstanding Letters of Credit and (b) the
aggregate amount of payments made by the Agent resulting from drawings under
Letters of Credit which have not been reimbursed by the Company.
"Majority Lenders" means the Lenders holding in the aggregate at least 75%
of the aggregate outstanding principal balance of the Revolving Loans or, if
there are no Revolving Loans outstanding, Lenders whose aggregate Percentage is
at least 75%.
"Maturity Date" means April 28, 2000, or such earlier date on which the
Agent declares the Notes to be, or the Notes automatically become, immediately
due and payable pursuant to section 7.2 of this Agreement.
"Multiemployer Plan" means any pension benefit plan subject to Title IV of
ERISA as defined in section 4001(a)(3) of ERISA, to which the Parent, the
Company or any member of the Controlled Group is required to contribute on
behalf of its employees.
"Net Earnings" means the excess of:
(a) all revenues and income derived from operations in the ordinary course
of business, including gains on the sale of Company-owned real
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estate (excluding extraordinary gains and profits upon the disposition of
investments and fixed assets),
over
(b) all expenses and other proper charges against income (including payment
or provision for all applicable income and other taxes, but excluding
extraordinary losses and losses upon the disposition of investments and fixed
assets),
all as determined in accordance with GAAP, applied on a consistent basis to the
Company.
"Nonperforming Lease" means Eligible Leased Real Estate if (a) the lease
has been terminated, (b) the tenant has abandoned the property or (c) the tenant
is more than 90 days past due on a lease payment. Unless otherwise agreed to by
the Majority Lenders and notice thereof , in the form of Exhibit J attached
hereto, has been sent to the Company, a Nonperforming Lease shall continue as a
Nonperforming Lease until the property is leased to a new tenant and a new
appraisal is furnished to the Agent, even if the tenant fully cures all payment
defaults.
"Nonperforming Loans" means a Third Party Loan which the Company has
accelerated the maturity thereof or with respect to which the borrower is more
than 90 days past due on a payment of principal or interest. Unless otherwise
agreed to by the Majority Lenders and notice thereof, in the form of Exhibit I
attached hereto, has been sent to the Company, a Third Party Loan which becomes
a Nonperforming Loan shall continue as a Nonperforming Loan even if the borrower
subsequently cures the payment default.
"Note" means a promissory note of the Company in the form of Exhibit A,
appropriately completed, evidencing Revolving Loans made by a Lender to the
Company.
"Notice of Borrowing" means a notice in substantially the form of Exhibit
B.
"Owner-Occupied Real Estate Loan" means a Third Party Loan secured by a
first priority mortgage lien on real property owned and occupied by the
borrower, an Affiliate of the borrower or other party related to the borrower;
provided however, that, upon consent of the Majority Lenders, following notice
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from the Company, the term Owner-Occupied Real Estate Loan shall also include a
Third Party Loan that previously qualified as an Owner-Occupied Real Estate Loan
but subsequently becomes unqualified because the real property securing such
Third Party Loan is no longer occupied by the borrower, an Affiliate of the
borrower or other party related to the borrower.
"Owner-Occupied Real Estate Loan Borrowing Base Amount" means an amount
equal to the sum of:
(a) in the case of an Eligible Owner-Occupied Real Estate Loan which is not
a Nonperforming Loan, an amount equal to the Applicable Percentage of the lesser
of [a] the outstanding principal balance of such Eligible Owner-Occupied Real
Estate Loan and [b] 64% of the Established Value of the real property securing
such Eligible Owner-Occupied Real Estate Loan; plus
(b) in the case of an Eligible Owner-Occupied Real Estate Loan which is a
Nonperforming Loan, an amount equal to the Applicable Percentage of the lesser
of [a] the outstanding principal balance of such Eligible Owner-Occupied Real
Estate Loan and [b] 50% of the Established Value of the real property securing
such Eligible Owner-Occupied Real Estate Loan;
provided, however, that the Owner-Occupied Real Estate Loan Borrowing Base
Amount shall be reduced, if and to the extent necessary, so that the Applicable
Percentage of the outstanding principal balances of Owner-Occupied Real Estate
Loans is not less than 110% of the Owner-Occupied Real Estate Loan Borrowing
Base Amount.
"Parent" means Bando XxXxxxxxxx Capital Corporation, a Wisconsin
corporation.
"Parent Guaranty" means that certain Guaranty Agreement dated as of March
11, 1998, duly executed by the Parent, in favor of the Benefited Parties (as
defined therein).
"Percentage" means, for each Lender:
(a) with respect to the Revolving Loan Commitment of a Lender, a percentage
equal to such Lender's Revolving Loan Commitment divided by the aggregate
Revolving Loan Commitments of all Lenders;
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(b) with respect to the Revolving Loans outstanding at any time, a
percentage equal to the outstanding principal amount of Revolving Loans made by
such Lender divided by the aggregate outstanding principal amount of Revolving
Loans made by all Lenders; and
(c) with respect to the LOC Commitment of a Lender, a percentage equal to
such Lender's LOC Commitment divided by the aggregate LOC Commitments of all
Lenders;
and the initial Percentage of each Lender is set forth opposite its signature
hereto, as the same may be reduced from time to time under section 2.6.
"Permitted Liens" means (a) security interests and liens listed on Schedule
1 attached hereto, provided that the Indebtedness secured thereby shall not be
increased; (b) liens for taxes, assessments or governmental charges not
delinquent or being contested in good faith by the Company for which adequate
reserves are established and maintained in accordance with GAAP; (c)
construction lien claims not delinquent; (d) liens or deposits in connection
with worker's compensation or other insurance or to secure the performance of
bids, trade contracts (other than for borrowed money), leases, public or
statutory obligations, surety or appeal bonds or other obligations of like
nature incurred in the ordinary course of business; (e) security interests and
liens in favor of the Agent for the benefit of the Lenders; (f) security
interests and liens in favor of a Lender provided that such security interests
and liens are subordinate to any security interests and liens granted by the
Company in favor of the Agent; (g) security interest and liens for Indebtedness
created, incurred or assumed by the Company after the date of this Agreement and
permitted under section 6.2(g); and (h) easements, restrictions, minor title
irregularities and similar matters which have no material adverse effect as a
practical matter upon the ownership or use of its property by the Company.
"Permitted Swap Contract" means a Swap Contract between the Company and a
Lender (or any Affiliate of a Lender); provided that such agreement is entered
into in the ordinary course of business by the Company for the purpose of
mitigating the Company's risks with respect to interest rate volitility and not
for the purpose of speculation.
"Person" means any natural person, corporation, limited liability company,
joint venture, partnership, association, trust or other entity or
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any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means any pension benefit plan subject to Title IV of ERISA,
including any Multiemployer Plan, maintained by the Parent, the Company or any
member of the Controlled Group or any such Plan to which the Parent, the Company
or any member of the Controlled Group is required to contribute on behalf of its
employees.
"Prime Rate" means the rate of interest announced by the Agent from time to
time as its prime rate. The Prime Rate may or may not be the lowest interest
rate charged by the Agent.
"Reportable Event" means a reportable event as that term is defined in
ERISA.
"Restricted Payments" means dividends or other distributions by the Company
based upon the stock of the Company (except dividends payable solely in stock of
the Company) and purchases, redemptions and other acquisitions, direct or
indirect, by the Company of its stock.
"Revolving Loan" means an extension of credit made by a Lender to the
Company pursuant to section 2.1 of this Agreement.
"Revolving Loan Commitment" means the obligation of each Lender to make
Revolving Loans to the Company. The total Revolving Loan Commitment of the
Lenders is initially $70,000,000 and is subject to reduction from time to time
pursuant to section 2.6. The Revolving Loan Commitment of each Lender is such
Lender's Percentage of the total Revolving Loan Commitment and the initial
Revolving Loan Commitment of each Lender in set forth opposite its signature
hereto.
"Security Documents" means the documents described in section 4.1(b) and
any other document, instrument or agreement furnished by the Company to the
Agent which provides collateral for the obligations of the Company under the
Loan Documents.
"Soft Costs" means, with respect to an Eligible Construction Loan, any loan
fees, debt service costs, developer's fees, including all contingencies,
overhead expenses, administrative expenses and profit, insurance
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premiums, survey expenses, surveyor's fees, title fees and expenses, broker's
fees and architect's fees and expenses.
"Subordinated Debt" means Indebtedness of the Company, the payment of which
is fully subordinated, in a manner satisfactory to the Lenders, to the prior
payment of the Notes.
"Subsidiary" means as of a particular date (a) any corporation more than
50% of whose outstanding stock having ordinary voting power for the election of
directors shall at the time be owned or controlled by the Company or by one of
its Subsidiaries and (b) any limited liability company more than 50% of whose
outstanding ownership interests shall at the time be owned or controlled by the
Company or by one of its Subsidiaries.
"Swap Contract" means an interest rate swap, cap, floor or collar
agreement, including any master agreement relating to or governing any of the
foregoing.
"Swing Line Loan" means a Revolving Loan made to the Company by Firstar
pursuant to Section 2.1(b). Swing Line Loans shall be a subfacility of Firstar's
Revolving Loan Commitment and thus, a subfacility of the Lenders' total
Revolving Loan Commitment.
"Third Party Loans" means commercial loans extended by the Company to third
parties and commercial loans extended by InvestorsBank for which the promissory
note evidencing the borrower's underlying obligations and all collateral
securing such obligations have been fully assigned to the Company.
"Total Liabilities" means (a) all items which, in accordance with GAAP,
would be classified as liabilities on the balance sheet of the Company,
including all Capitalized Leases, and (b) indebtedness for borrowed money
secured by any mortgage, lien, pledge or security interest on property of the
Company even though it has not assumed or otherwise become liable for the
payment thereof.
"Transferred Loan" means an Eligible Owner-Occupied Real Estate Loan which
the Company has sold to an unrelated, third-party investor but for which the
Company retains an obligation to repurchase such loan upon the demand of the
third-party investor therefor, which repurchase obligation is supported by a
Letter of Credit in favor of the third-party investor; provided that
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any Transferred Loan (a) repurchased or otherwise reacquired by the Company or
(b) for which the Company no longer has a repurchase obligation as the result of
a refinancing of the underlying Transferred Loan, a release by the third-party
investor therefor or otherwise, shall thereupon immediately cease to be a
Transferred Loan.
"Transferred Loan Borrowing Base Amount" means, with respect to Transferred
Loans, an amount equal to the sum of the Owner-Occupied Real Estate Loan
Borrowing Base Amounts that would be calculated for each Transferred Loan if
each such Transferred Loan were deemed to be an Eligible Owner-Occupied Real
Estate Loan which is not a Nonperforming Loan.
"Type" means, with respect to any Revolving Loan, its nature as a Base Rate
Loan or as a LIBOR Rate Loan.
"U.S. Bank" means U.S. Bank National Association (formerly known as First
Bank National Association), and its successors.
2. The Credit Facilities; Fees.
2.1 Revolving Loans and Letters of Credit.
(a) Revolving Loans. During the period from the date of this Agreement
to the Maturity Date, each Lender will make Revolving Loans to the Company,
subject to the terms and conditions hereof, in an amount equal to such Lender's
Percentage of the amount of Revolving Loans requested by the Company on the
applicable Borrowing Date, up to the maximum amount at any time outstanding of
such Lender's Revolving Loan Commitment minus such Lender's Percentage of the
LOC Exposure then outstanding; provided, however, that the Lenders shall have no
obligation to make Revolving Loans to the Company if, after giving effect
thereto, the sum of the aggregate outstanding principal amount of Revolving
Loans plus the outstanding principal amount of Commercial Paper plus the then
outstanding LOC Exposure would exceed the lesser of the total Revolving Loan
Commitments or the Borrowing Base Amount. Within such maximum amount Revolving
Loans may be made, repaid and made again. The Revolving Loans made by a Lender
shall be evidenced by the Note payable to the order of such Lender and shall be
payable on the Maturity Date. Although each Note shall be expressed to be
payable in the amount of the payee Lender's initial Revolving Loan Commitment,
the Company shall be obligated to pay only the amount of Revolving Loans
actually disbursed to or for the account of
16
the Company by the payee Lender, together with interest on the unpaid balance of
the sums so disbursed, which remain outstanding from time to time as shown on
the records of the payee Lender. The Revolving Loans made by the Lenders on a
Borrowing Date shall be made ratably in accordance with each Lender's
Percentage.
(b) Swing Line Loans. The parties agree that for ease of
administration and to avoid frequent transfers of funds, Firstar may at its
option and from time to time make Swing Line Loans to the Company without
proportionate loans by the other Lenders. Notwithstanding any provision of this
Agreement to the contrary:
(i) The aggregate outstanding principal amount of all outstanding
Swing Line Loans shall not exceed $2,500,000;
(ii) The Company may request a Swing Line Loan by a telephonic
request therefor to Firstar no later than 4 p.m., Milwaukee, Wisconsin
time on the requested Borrowing Date;
(iii) Swing Line Loans shall be evidenced by the Revolving Note
payable to the order of Firstar;
(iv) Swing Line Loans shall be Base Rate Loans; and
(v) Swing Line Loans may be prepaid at any time in whole or in
part without premium or penalty and all payments of principal and
interest on Swing Line Loans shall be made to and retained by Firstar.
Except as expressly set forth to the contrary in this Agreement, Swing
Line Loans shall be governed by the provisions of this Agreement applicable to
Revolving Loans.
During any period that Swing Line Loans are outstanding, the Lenders
agree that at any time upon the request of Firstar, each Lender will make a
Revolving Loan to the Company by transferring to Firstar an amount equal to such
Lender's Percentage of the aggregate principal amount of Swing Line Loans then
outstanding. Such transfer shall be considered a Revolving Loan by that Lender
to the Company and a payment of the Swing Line Loans by
17
the Company to Firstar. If an Event of Default occurs while Swing Line Loans are
outstanding, each Lender agrees to purchase from Firstar a participation in such
Swing Line Loans in an amount equal to such Lender's Percentage of the then
outstanding principal amount of Swing Line Loans. The Company and Firstar agree
that the aggregate outstanding principal balance of Swing Line Loans shall be
reduced to $0 for at least one day each calendar week.
(c) Letters of Credit.
(i) Issuance. The Agent will issue standby Letters of
Credit, solely in connection with Transferred Loans, which it may
lawfully issue, in Dollars, for the account of the Company, subject to
the terms and conditions hereof, at any time during the period from
the Closing Date to the Maturity Date; provided that [a] the LOC
Exposure as of the applicable Borrowing Date, shall not exceed the LOC
Commitment and [b] the sum of the LOC Exposure and the outstanding
principal amount of all Revolving Loans shall not exceed the Revolving
Loan Commitment then in effect; and, provided further, that (x) each
Letter of Credit shall contain such terms and conditions as are
acceptable to the Agent and (y) no Letter of Credit shall have an
expiry date later than the Maturity Date. By 12 p.m., Milwaukee time,
at least three Business Days prior to the proposed Borrowing Date of a
Letter of Credit, the Company shall deliver to the Agent a duly
executed application and agreement for such Letter of Credit, in form
and content satisfactory to the Agent. No Letter of Credit shall be
issued hereunder unless on the proposed Borrowing Date all of the
conditions precedent specified in section 4.2 shall have been
satisfied as fully as if the issuance of such Letter of Credit were a
Revolving Loan.
(ii) Letter of Credit Participation. Upon the issuance of a
Letter of Credit by the Agent hereunder, each Lender shall be deemed
to have automatically, irrevocably and unconditionally purchased and
received from the Agent an undivided interest and participation in
such Letter of Credit, the obligations of the Company in respect
thereof and the liability of the Agent thereunder in an amount equal
to the amount available for drawing under such Letter of Credit
multiplied by such Lender's Percentage. The Agent will notify each
Lender promptly upon presentation of a draft with respect to a Letter
of Credit, identifying such Letter of Credit and specifying the amount
drawn and the Business Day on which the Agent will honor such drawing.
If on or before such date the Company does not reimburse the Agent for
the amount drawn and the Company cannot satisfy the borrowing
conditions set forth in section 4.2, then each Lender shall pay to the
Agent in immediately available funds an amount
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equal to such Lender's Percentage of the amount drawn. Unless the
Agent has acted with gross negligence or willful misconduct in
connection with honoring a drawing, the obligation of each Lender to
make such payment to the Agent shall be unconditional, continuing,
irrevocable and absolute. If any Lender fails to make the payment
required under this section, the Agent shall retain, for its own
account, any payments otherwise required to be paid to such Lender
hereunder until such Lender's obligation to the Agent is paid in full.
(iii) Reimbursement Obligation of the Company. The Company
agrees to pay to the Agent, for the ratable account of the Lenders,
the amount paid by the Agent resulting from a drawing under a Letter
of Credit on the date the Agent honors such drawing. If the Company
can satisfy the conditions precedent set forth in section 4.2(b)-(d),
the Company shall be deemed to have elected to borrow from the
Lenders, as of the date such drawing is honored, Base Rate Loans in an
aggregate amount equal to the amount drawn which shall be used to
satisfy the Company's reimbursement obligation under this section. The
obligation of the Company to pay to the Agent the amount of any
payment made by the Agent under any Letter of Credit shall be
absolute, unconditional and irrevocable and shall remain in full force
and effect until all amounts owed by the Company to the Lenders
hereunder and under any Loan Document shall have been paid in full and
such obligation of the Company shall not be affected, modified or
impaired upon the happening of any event, including, without
limitation, any of the following, whether or not with notice to, or
the consent of, the Company:
[a] any lack of validity or enforceability of any
Letter of Credit or any Loan Document;
[b] any amendment, modification, waiver, consent,
or any substitution, exchange or release of or failure to
perfect any interest in collateral or security, with respect
to any Loan Document;
[c] the existence of any claim, setoff, defense or
other right which the Company may have at any time against
any beneficiary or any transferee of any Letter of Credit
(or any persons for whom any such beneficiary or any such
transferee may be acting);
[d] any draft or other statement or document
presented under any Letter of Credit proving to be forged,
fraudulent,
19
invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
[e] payment by the Agent to the beneficiary under
any Letter of Credit against presentation of documents which
do not strictly comply with the terms of the Letter of
Credit, including failure of any documents to bear any
reference or adequate reference to such Letter of Credit;
and
[f] any failure, omission, delay or lack on the
part of the Agent or any party to any Loan Document to
enforce, assert or exercise any right, power or remedy
conferred upon the Agent or any such other party.
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(iv) Fees and Expenses.
[a] The Company agrees to pay to the Agent, for
the ratable benefit of the Lenders, a commission in an
amount equal to one percent (1%) per annum of the face
amount of each Letter of Credit, quarterly in advance, on
the Borrowing Date of each Letter of Credit and on each
three-month anniversary thereof.
[b] The Company shall pay to the Agent, for its
own account, on demand, [i] an issuance or "facing" fee
equal to one-eighth of one percentage point (.125%) of the
face amount of the Letter of Credit to be issued and [ii]
the normal negotiation, presentation, transfer, amendment
and other processing fees, and other standard costs and
charges of the Agent relating to letters of credit as in
effect from time to time.
(v) Uniform Customs and Practice. The Uniform Customs and
Practice for Documentary Credits as published by the International
Chamber of Commerce most recently at the time of issuance of any
Letter of Credit shall (unless otherwise expressly provided in the
Letters of Credit) apply to the Letters of Credit.
(vi) Cash Collateral. If on the Maturity Date any Letter of
Credit remains outstanding, the Company shall either make arrangements
reasonably satisfactory to the Majority Lenders for the assumption of
liabilities created by any such issued and unexpired Letter of Credit
or, in the absence of such reasonably satisfactory arrangements, the
Company shall deliver to the Agent, for the benefit of the Agent and
the Lenders, Cash Collateral in an aggregate principal amount equal to
110% of the LOC Exposure then outstanding. The unapplied balance of
such Cash Collateral shall be retained by the Agent to the extent the
Agent has not been reimbursed for drafts honored by it, or to the
Lenders to reimburse the Lenders for any amounts paid by them to the
Agent for drafts honored by the Agent under the unexpired Letters of
Credit and, to the extent the Letters of Credit expire without draw,
any excess shall be first applied to the Company's obligations then
due and outstanding under the Loan Documents, if any, with any excess
returned to the Company.
2.2 Interest Rate Options. Revolving Loans may be Base Rate Loans or
LIBOR Rate Loans, or a combination thereof. The Company shall select the Type of
Revolving Loan (and in the case of LIBOR Rate Loans, the applicable Interest
Period) in accordance with sections 2.3(a) and 2.4(c). The
00
xxxxxxxxx xxxxxxxxx xxxxxx xx XXXXX Rate Loans made by the Lenders on a
Borrowing Date, or pursuant to an election by the Company to either (a) convert
Base Rate Loans to LIBOR Rate Loans or (b) continue LIBOR Rate Loans, shall be
in a minimum amount of $500,000 and in integral multiples of $100,000 above such
minimum. After giving effect to any advance under section 2.1 or conversion or
continuation under section 2.4, there may not be more than 10 different Interest
Periods in effect.
2.3 Borrowing Procedure for Revolving Loans.
(a) The Company shall request Revolving Loans by submitting
a Notice of Borrowing to the Agent. The Notice of Borrowing must be
received by the Agent (i) in the case of LIBOR Rate Loans, not later
than 11 a.m., Milwaukee, Wisconsin time, on the date which is three
Business Days prior to the requested Borrowing Date (which must be a
Business Day) and (ii) in the case of Base Rate Loans, not later than
11 a.m., Milwaukee, Wisconsin time, on the requested Borrowing Date
(which must be a Business Day). Each Notice of Borrowing must specify
the amount of the requested Revolving Loans, the Type of requested
Revolving Loans and, if the Company requests LIBOR Rate Loans, the
applicable Interest Period. The aggregate amount of Revolving Loans
made on each Borrowing Date shall be in a minimum amount of $500,000
and in integral multiples of $100,000 above such minimum. Each Notice
of Borrowing shall be irrevocable and shall constitute a certification
by the Company that the borrowing conditions specified in sections
4.2(b) and 4.2(c) will be satisfied on the specified Borrowing Date.
The Agent will promptly notify the Lenders of the requested Revolving
Loans. On or before 2 p.m., Milwaukee, Wisconsin time, on the
specified Borrowing Date each Lender shall deposit its Percentage of
the requested Revolving Loans with the Agent in immediately available
funds. The Agent shall, on or before 3 p.m., Milwaukee, Wisconsin
time, notify the Company if the Agent has not received each Lender's
deposit of its Percentage of the requested Revolving Loan. On or
before 3 p.m., Milwaukee, Wisconsin time, provided the Agent has
received each Lender's Percentage of the requested Revolving Loan and
upon fulfillment of the applicable borrowing conditions, the Agent
shall deposit the Revolving Loans in the Company's account maintained
with the Agent.
(b) Unless the Agent shall have been notified by telephone,
confirmed promptly thereafter in writing, by a Lender not later than 2
p.m., Milwaukee, Wisconsin time, on a Borrowing Date that such Lender
will not make available to the Agent such Lender's Percentage of the
requested
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Revolving Loans, the Agent may assume that such Lender has made such
amount available to the Agent and, in reliance upon such assumption,
the Agent may (but shall not be required) to make available to the
Company on such Borrowing Date a corresponding amount. If and to the
extent that such Lender shall not have so made such amount available
to the Agent and the Agent in such circumstances has made such amount
available to the Company, such Lender shall on the Business Day
following the Borrowing Date make such amount, together with interest
at the Federal Funds Rate for each day during such period, available
to the Agent. If such amount is so made available, such payment to the
Agent shall constitute such Lender's Revolving Loan on the Borrowing
Date for all purposes of this Agreement. If such amount is not made
available to the Agent on the Business Day following the Borrowing
Date, the Agent shall notify the Company of such failure to fund and,
upon demand by the Agent, the Company shall pay such amount to the
Agent for the Agent's account together with interest thereon, for each
day from the date the Agent made such amount available to the Company
to the date such amount is repaid to the Agent, at the interest rate
applicable to such amount as selected by the Company on the Borrowing
Date for such amount.
(c) The failure of any Lender to make a Revolving Loan shall
not relieve any other Lender of its obligation hereunder to make a
Revolving Loan on the applicable Borrowing Date, but no Lender shall
be responsible for the failure of any other Lender to make the
Revolving Loan to be made by such other Lender on the applicable
Borrowing Date.
2.4 Continuation and Conversion Procedure.
(a) Base Rate Loans shall continue as Base Rate Loans unless
and until converted into LIBOR Rate Loans. The Company may elect from
time to time, subject to the terms and conditions of this Agreement,
to convert all or any part of the outstanding Base Rate Loans into
LIBOR Rate Loans.
(b) At the end of the applicable Interest Period for LIBOR
Rate Loans, such LIBOR Rate Loans shall be automatically converted
into Base Rate Loans unless the Company shall have given the Agent
notice in accordance with section 2.4(c) requesting that, at the end
of such Interest Period, such LIBOR Rate Loans continue as LIBOR Rate
Loans.
(c) The Company shall deliver a Conversion/ Continuation
Notice to the Agent for each conversion of Base Rate Loans or
23
continuation of LIBOR Rate Loans. The Conversion/Continuation Notice
must be received by the Agent not later than 11 a.m., Milwaukee time,
at least three Business Days prior to the date of the requested
conversion or continuation and must specify (i) the requested date
(which shall be a Business Day) of such conversion or continuation,
(ii) the amount of Revolving Loans to be converted or continued and
(iii) the duration of the Interest Period applicable thereto.
(d) The Agent will promptly notify each Lender of its
receipt of a Conversion/Continuation Notice or, if no notice is timely
provided by the Company, the Agent will promptly notify each Lender of
the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective
outstanding principal amounts of the Revolving Loans with respect to
which the notice was given.
(e) Notwithstanding anything to the contrary contained in
this section, Revolving Loans may not be converted into or continued
as LIBOR Rate Loans when any Default or Event of Default has occurred
and is continuing.
2.5 Commitment Fee. As consideration for the Lenders' Revolving Loan
Commitments, the Company will pay to the Agent, for the account of the Lenders,
on the last Business Day of each quarter commencing June 30, 1999 and on the
Maturity Date, a commitment fee equal to 1/2 of 1% per year of the daily average
unused amount of the Revolving Loan Commitment during the preceding quarter or
other applicable period; provided that for purposes of calculating the
commitment fee payable, the LOC Exposure shall constitute a used portion of the
Revolving Loan Commitment; and provided further that for purposes of computing
the commitment fee due on June 30, 1999, the applicable period shall be the date
of this Agreement through June 30, 1999. Commitment fees shall be calculated for
the actual number of days elapsed on the basis of a 360-day year.
2.6 Reduction or Termination of Revolving Loan Commitment. The Company
may, upon three Business Days' prior written notice to the Agent, permanently
reduce the amount of the total Revolving Loan Commitment; provided that (i) no
such reduction shall reduce the amount of the total Revolving Loan Commitment to
an amount less than the sum of (a) the aggregate unpaid principal balances of
the Notes plus (b) the then outstanding LOC Exposure on the date of such
reduction plus (c) the aggregate outstanding principal amount of Commercial
Paper on such date, (ii) the Revolving Loan
24
Commitments may not be terminated by the Company unless there is no Commercial
Paper outstanding and (iii) upon any termination of the Revolving Loan
Commitments the Company shall pay to the Agent, for the account of the Lenders,
the outstanding principal balance of the Revolving Loans, all accrued interest
and all fees, expenses and other amounts payable under this Agreement as of the
termination date (including the delivery of Cash Collateral required under
section 2.1(c)(vi) hereof). Each reduction in the total Revolving Loan
Commitment shall be in a minimum amount of $5,000,000 and in integral multiples
of $1,000,000 above such minimum. Each reduction in the total Revolving Loan
Commitment shall ratably reduce each Lender's Revolving Loan Commitment.
2.7 Interest Rates.
(a) The unpaid principal balance of Base Rate Loans
outstanding from time to time shall bear interest prior to the
Maturity Date at an annual rate equal to the Base Rate plus the
Applicable Margin for Base Rate Loans, and such rate shall change on
each day on which the Base Rate changes. Accrued interest shall be due
on the first Business Day of each month, commencing June 1, 1999, and
on the Maturity Date.
(b) The unpaid principal balance of each LIBOR Rate Loan
shall bear interest during the applicable Interest Period at the
corresponding Adjusted LIBOR Rate plus the Applicable Margin for Libor
Rate Loans. Accrued interest for each LIBOR Rate Loan shall be due on
the last day of the applicable Interest Period.
(c) Notwithstanding the provisions of sections 2.7(a) and
2.7(b) above, upon the occurrence and during the continuance of an
Event of Default, the unpaid principal balance of each Note shall,
upon notice from the Agent to the Company, bear interest at an annual
rate equal to the Base Rate plus two percentage points (the "Default
Rate"), payable upon demand. On and after the Maturity Date, the
unpaid principal balance of the Notes and all accrued interest thereon
shall bear interest at the Default Rate and shall be payable upon
demand.
(d) Interest shall be calculated for the actual number of
days elapsed on the basis of a 360-day year.
25
2.8 Payments. All payments of principal and interest on the Notes and
of all fees and other amounts due hereunder shall be made at the office of the
Agent, for the account of the Lenders, in immediately available funds not later
than 2 p.m., Milwaukee, Wisconsin time, on the date due; funds received after
that time shall be deemed to have been received on the next Business Day.
Whenever any payment to be made shall otherwise be due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day and
such extension of time shall be included in computing interest and fees, if any,
in connection with such payment. The Agent may charge any account of the Company
at the Agent or at any Lender for any payment due under the Notes, or any fee or
expense payable hereunder, on or after the date due. Except as otherwise
provided in section 2.12(b), the Agent shall forward to each Lender, promptly
after receipt, such Lender's Percentage of such payments received by the Agent.
2.9 Prepayments. The Company shall immediately and without demand by
the Agent or any Lender make a mandatory prepayment of the Notes if and to the
extent that the sum of (a) the aggregate outstanding principal balances of the
Notes plus (b) the then outstanding LOC Exposure, plus (c) the aggregate
outstanding principal amount of the Commercial Paper exceeds the Borrowing Base
Amount. The Company further agrees to make a mandatory prepayment of the Notes
in an amount equal to the net proceeds received by the Company in connection
with the sale of any Transferred Loan. The Company may at any time repay,
without premium or penalty, Base Rate Loans in a minimum amount of $500,000 (or,
if less, all outstanding Base Rate Loans). The Company may prepay LIBOR Rate
Loans (in a minimum amount of $500,000 and in integral multiples of $100,000
above such minimum) at any time; provided, that, in the event of a prepayment of
LIBOR Rate Loans on any day other than the last day of the applicable Interest
Period, the Company shall also pay to the Bank on the prepayment date the
amounts referred to in section 2.10(c).
The Company will give the Agent notice of any optional prepayment of
the Revolving Notes not later than 1 p.m., Milwaukee, Wisconsin time, on the
Business Day prior to the prepayment date, specifying the prepayment date (which
must be a Business Day) and the amount to be prepaid. The amount of such
prepayment and any amounts related thereto shall be due and payable on the
specified prepayment date.
2.10 Additional LIBOR Rate Loan Provisions
26
(a) If any Lender determines that the making or maintaining
of a LIBOR Rate Loan would violate any applicable law, rule regulation
or directive, whether or not having the force of law, then the
obligation of the Lenders to make or continue LIBOR Rate Loans, or to
convert Base Rate Loans into LIBOR Rate Loans, shall be suspended
until the Agent notifies the Company that the circumstances causing
such suspension no longer exist. During any such period, all LIBOR
Rate Loans shall automatically convert into Base Rate Loans at the end
of the applicable Interest Period or sooner if required by law.
(b) If the Agent is unable to determine the LIBOR Rate in
respect of a requested Interest Period or the Majority Lenders are
unable to obtain deposits of United States dollars in the London
interbank market in the applicable amounts and for the requested
Interest Period, then, upon notice from the Agent to the Company, the
obligation of the Lenders to make or continue LIBOR Rate Loans, or to
convert Base Rate Loans into LIBOR Rate Loans, shall be suspended
until the Agent notifies the Company that the circumstances causing
such suspension no longer exist.
(c) If any Lender shall incur any loss or expense (including
any loss or expense incurred by reason of a liquidation or
redeployment of deposits or other funds acquired by such Lender to
make, continue or maintain any portion of a LIBOR Rate Loan, or to
convert any portion of a Base Rate Loan into a LIBOR Rate Loan) as a
result of (in each case other than as a result of the occurrence of an
event described in section 2.10(b) hereof): (i) any conversion or
repayment or prepayment of the principal amount of LIBOR Rate Loan on
a date other than the last day of the Interest Period applicable
thereto (whether as a result of acceleration, prepayment or
otherwise); (ii) any Revolving Loan not being made as a LIBOR Rate
Loan in accordance with the Notice of Borrowing therefore; or (iii)
any Revolving Loan not being continued as, or converted into, a LIBOR
Rate Loan in accordance with the Continuation/ Conversion Notice
therefore, then, upon written notice from such Lender to the Company,
the Company shall, within five days of its receipt thereof, pay to
such Lender such amount as will (in the reasonable determination of
such Lender) reimburse such Lender for such loss or expense. Such
written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on
the Company.
2.11 Setoff. Each Lender shall, upon the occurrence and during the
continuance of an Event of Default, have the right to apply to the
27
payment of the Note held by such Lender (whether or not then due) any and all
balances, credits, deposits, accounts or monies of the Company then or
thereafter maintained with such Lender. Each Lender agrees to promptly notify
the Company and the Agent after any such setoff and application made by such
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such setoff and application.
2.12 Pro Rata Treatment; Sharing of Payments.
(a) Except as otherwise provided in this Agreement, all
payments of principal, interest and fees made by the Company shall be
distributed pro rata to the Lenders according to their respective
Percentages. If any Lender shall obtain any payment or other recovery
(whether voluntary, involuntary, by application of setoff or
otherwise) in excess of its pro rata share of payments then or
therewith obtained by all Lenders, such Lender shall immediately
purchase, without recourse and for cash, from the other Lenders, such
participations in the Notes of such other Lenders so that each Lender
shall thereafter have a percentage interest in all of such obligations
equal to such Lender's Percentage; provided, however, that if any
payment so received shall be recovered in whole or in part from such
purchasing Lender, the purchase shall be rescinded and the purchase
price restored to the extent of any such recovery, but without
interest. The Company agrees that any Lender so purchasing a
participation from another Lender pursuant to this section may, to the
fullest extent permitted by law, exercise all of its rights of payment
(including its right of setoff) with respect to such participation as
if such Lender were the direct creditor of the Company in the amount
of such participation.
(b) Notwithstanding anything to the contrary contained in
this Credit Agreement, any Lender that fails to make available to the
Agent its pro rata share of any Revolving Loan as, when and to the
full extent required by the provisions of this Credit Agreement, shall
be deemed delinquent (a "Delinquent Lender") until such time as such
delinquency is satisfied. A Delinquent Lender shall be deemed to have
assigned any and all payments due to it from the Company to the Agent
and the nondelinquent Lenders for application to, and reduction of,
their respective pro rata shares of all outstanding Revolving Loans.
The Delinquent Lender hereby authorizes the Agent to (i) retain such
payments to the extent the Agent funded such delinquency or (ii)
distribute such payments to the nondeliquent Lenders in proportion to
their respective pro rata shares of all outstanding Revolving Loans to
the extent the nondelinquent Lenders
28
funded such delinquency. A Delinquent Lender shall be deemed to have
satisfied in full a delinquency when and if, as a result of the
application of the assigned payments to the Agent and/or the
nondelinquent Lenders, all advances funded by the Agent have been
repaid in full and the Lenders' respective pro rata shares of all
outstanding Revolving Loans have returned to their respective
Percentages.
2.13 Capital Adequacy. As used in this section, the term "Regulatory
Change" means any change enacted or issued after the date of this Agreement of
any (or the adoption after the date of this Agreement of any new) federal or
state law, regulation, interpretation, direction, policy or guideline, or any
court decision, which affects (or, in the case of a court decision would, if the
decision were applicable to any Lender, affect) the treatment of any Revolving
Loan or any commitment of any Lender hereunder as an asset or other item
included for the purpose of calculating the appropriate amount of capital to be
maintained by such Lender or any corporation controlling such Lender. If such
Regulatory Change has the effect of reducing the rate of return on such Lender's
or such corporation's capital as a consequence of the Revolving Loans or
commitments of such Lender hereunder to a level below that which such Lender or
such corporation could have achieved but for such Regulatory Change (taking into
account such Lender's or such corporation's policies with respect to capital
adequacy) by an amount deemed in good faith by such Lender to be material, then
from time to time following notice by such Lender to the Company of such
Regulatory Change, within ten days after demand from such Lender, the Company
shall pay to such Lender such additional amount or amounts as will compensate
such Lender or such corporation, as the case may be, for such reduction. Such
notice (which shall include calculations in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding on the Company.
2.14 Yield Protection. If any law or any governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any interpretation thereof, or the compliance of any Lender therewith,
(a) subjects any Lender to any tax, duty, charge or
withholding on or from payments due from the Company (excluding
federal taxation of the overall net income of any Lender and any such
tax, duty, charge or withholding in effect as of the date of this
Agreement), or changes the basis of taxation of payments to any Lender
in respect of its Revolving Loans or other amounts due it hereunder
(excluding federal taxation of the overall net income of any Lender);
29
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any lender (other than reserves and assessments taken
into account in determining the interest rate applicable to LIBOR Rate
Loans) with respect to its Revolving Loans; or
(c) imposes any other condition the result of which is to
increase the cost to any Lender of making, funding or maintaining the
Revolving Loans or reduces any amount received by any Lender in
connection with the Revolving Loans or requires any Lender to make any
payment calculated by reference to the amount of Revolving Loans held
or interest received by it, by an amount deemed material by such
Lender;
then, within 15 days of demand by such Lender, the Company shall pay
such Lender that portion of such increased expense incurred or
reduction in an amount received which such Lender determines is
attributable thereto. Such notice (which shall include calculations in
reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Company.
2.15 Other Fees. In addition to the other fees described herein, the
Company shall pay to Firstar the arrangement fees and annual agency fees
described in the fee letters dated June 10, 1998 and April 30, 1999,
respectively, from Firstar to the Company (the "Fee Letter").
3. Representations and Warranties. In order to induce the Lenders to
make the Revolving Loans and the Agent to issue Letters of Credit, the Company
represents and warrants to the Lenders and the Agent that:
3.1 Organization; Subsidiaries; Corporate Power; REIT Status. The
Company is a corporation validly existing under the laws of the State of
Wisconsin. The Company is duly qualified as a foreign corporation to do business
and is in good standing in every jurisdiction in which the nature of its
business or the ownership of its properties requires such qualification and in
which the failure to so qualify would materially adversely affect the business
operations or financial condition of the Company. The Company has no
Subsidiaries. The Company has the corporate power to own its properties and
carry on its business as currently being conducted. The Company has elected, and
is duly qualified, to operate as a "real estate investment trust" ("REIT")
pursuant to section 856 of the Code and applicable regulations issued by the
Internal Revenue Service. The
30
Company has no knowledge of any facts or circumstances that would disqualify the
Company as a REIT and has no knowledge of any pending or threatened action by
the Internal Revenue Service to revoke or terminate the Company's election to
operate, or status, as a REIT.
3.2 Authorization and Binding Effect. The execution and delivery by
the Company of the Loan Documents to which it is a party, and the performance by
the Company of its obligations thereunder, are within its corporate power, have
been duly authorized by proper corporate action on the part of the Company, are
not in violation of any existing law, rule or regulation of any governmental
agency or authority, any order or decision of any court, the Articles of
Incorporation or By-Laws of the Company or the terms of any agreement,
restriction or undertaking to which the Company is a party or by which it is
bound, and do not require the approval or consent of the shareholders of the
Company, any governmental body, agency or authority or any other person or
entity. The Loan Documents to which the Company is a party, when executed and
delivered, will constitute the valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by bankruptcy,
insolvency or similar laws of general application affecting the enforcement of
creditors' rights and except to the extent that general principles of equity
might affect the specific enforcement of such Loan Documents.
3.3 Financial Statements. The Company has furnished to the Lenders (a)
the consolidated balance sheet of the Parent and its consolidated subsidiaries
as of December 31, 1998, and related statements of income, retained earnings and
cash flows for the year ended on that date, certified by BDO Xxxxxxx, LLP and
(b) the unconsolidated balance sheet of the Company dated February 28, 1999 and
related statements of income and cash flows for the period ended on such date,
prepared by the Company. Such financial statements were prepared in accordance
with GAAP consistently applied throughout the periods involved, are correct and
complete and fairly present the consolidated financial condition of the Parent
and its subsidiaries of the Company, respectively, as of such dates and the
results of their operations for the periods ended on such dates, subject, in the
case of the interim statements, to normal year-end adjustments. There has been
no material adverse change in the condition or prospects of the Parent or its
consolidated subsidiaries, financial or otherwise, since the date of the most
recent financial statement furnished to the Lenders.
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3.4 Litigation. Except for the matters described on Schedule 3.4,
there is no litigation or administrative proceeding pending or, to the knowledge
of the Company, threatened against or affecting the Company or the properties of
the Company which if determined adversely would have a material adverse effect
upon the business, financial condition or properties of the Company.
3.5 Restricted Payments. The Company has not, since the date of the
most recent financial statements referred to in section 3.3, made any Restricted
Payments except for Restricted Payments permitted under section 6.1.
3.6 Indebtedness; No Default. The Company has no outstanding
Indebtedness or Contingent Obligations, except those permitted under sections
6.2 and 6.3. There exists no default nor has any act or omission occurred which,
with the giving of notice or the passage of time, would constitute a default
under the provisions of (a) any instrument evidencing such Indebtedness or
Contingent Obligation or any agreement relating thereto or (b) any other
agreement or instrument to which the Company is a party and which is material to
the financial condition, business operations or prospects of the Company.
3.7 Ownership of Properties; Liens and Encumbrances. The Company has
good and marketable title to all property, real and personal, reflected on the
most recent financial statement of the Company furnished to the Lenders, and all
property purported to have been acquired since the date of such financial
statement, except property sold or otherwise disposed of in the ordinary course
of business subsequent to such date; and all such property is free of any lien,
security interest, mortgage, encumbrance or charge of any kind or any agreement
not to grant a security interest, mortgage or lien, except Permitted Liens. All
owned and leased buildings and equipment of the Company are in good condition,
repair and working order (reasonable wear and tear excepted) and, to the
Company's knowledge, conform in all material respects to all applicable laws,
ordinances and regulations.
3.8 Tax Returns Filed. The Parent and the Company have filed when due
all federal and state income and other tax returns which are required to be
filed. The Company has paid or made provision for the payment of all taxes shown
on such returns, and on all assessments received by it to the extent that such
taxes or assessments have become due, except any such taxes or assessments which
are being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP have been established.
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The Company has no knowledge of any liabilities which may be asserted against it
upon audit of its federal or state tax returns.
3.9 Margin Stock. The Company will not use, directly or indirectly,
any part of the proceeds of any Note for the purpose of purchasing or carrying,
or to extend credit to others for the purpose of purchasing or carrying, any
margin stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System, or any amendments thereto. The Company is not engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock.
3.10 Investment Company. The Company is not an "investment company" or
a company controlled by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
3.11 ERISA Liabilities. The Company has no knowledge of the occurrence
of any event with respect to any Plan which could result in a liability of the
Company or any member of the Controlled Group to any Plan, the Internal Revenue
Service or to the Pension Benefit Guaranty Corporation other than the payment of
contributions in the normal course or premiums (but not a late payment charge)
pursuant to section 4007 of ERISA. With respect to any Plan there is no (a)
accumulated funding deficiency within the meaning of section 412(a) of the Code;
(b) nondeductible contribution to any Plan within the meaning of section 4972 of
the Code; (c) excess contribution within the meaning of section 4979(c) of the
Code which would result in tax under section 4979(a) of the Code; (d) prohibited
transaction within the meaning of ERISA section 406 which is not exempt under
ERISA section 408; (e) failure to make required contributions to any
Multiemployer Plan; or (f) withdrawal or partial withdrawal from any
Multiemployer Plan within the meaning of ERISA sections 4203 and 4205.
3.12 No Burdensome Agreements. The Company is not a party to or bound
by any agreement, instrument or undertaking, or subject to any other restriction
(a) which materially adversely affects, or is likely in the future to so affect,
the property, financial condition or business operations of the Company or (b)
under or pursuant to which the Company is or will be required to grant (or under
which any other Person may obtain) a security interest or lien upon any of its
property (other than a Permitted Lien), either upon demand or upon the
fulfillment of a condition, with or without demand.
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3.13 Trademarks, Etc. The Company possesses adequate trademarks, trade
names, copyrights, patents, permits, service marks and licenses, or rights
thereto, for the present and planned future conduct of their respective
businesses substantially as now conducted, without any known conflict with the
rights of others which would result in a material adverse effect on the Company.
3.14 Dump Sites. With respect to the period during which the Company
owned or occupied its real estate, and to the Company's knowledge after
reasonable investigation, with respect to the time before the Company owned or
occupied its real estate, no person or entity has caused or permitted materials
to be stored, deposited, treated, recycled or disposed of on, under or at any
real estate owned or occupied by the Company, which materials, if known to be
present, would require cleanup, removal or some other remedial action under
Environmental Laws.
3.15 Tanks. There are not now, nor, to the Company's knowledge after
reasonable investigation, have there ever been tanks or other facilities on,
under, or at any real estate owned or occupied by the Company which contained
materials which, if known to be present in soils or ground water, would require
cleanup, removal or some other remedial action under Environmental Laws.
3.16 Other Environmental Conditions. There are no conditions existing
which would subject the Company 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.
3.17 Changes in Laws. To the Company's knowledge after reasonable
investigation, there are no proposed or pending changes in Environmental Laws
that would adversely affect the Company.
3.18 Environmental Judgments, Decrees and Orders. The Company is not
subject to any judgment, decree, order or citation related to or arising out of
Environmental Laws. The Company has not been named as a potentially responsible
party by a governmental body or agency in a matter arising under any
Environmental Law.
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3.19 Environmental Permits and Licenses. The Company and each
Subsidiary has all permits, licenses and approvals required under Environmental
Laws.
3.20 Year 2000. Except as set forth on Schedule 3.20 attached hereto,
the information technology systems used by the company in its business
operations accurately process date/time data (including without limitation
calculating, comparing and sequencing) from, into and between the twentieth and
twenty-first centuries, the year 1999 and 2000 and leap year calculations.
3.21 Accuracy of Information. All information furnished by the Company
to the Lenders is true, correct and complete in all material respects as of the
date furnished and does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make such information not misleading.
4. Conditions for Borrowing. The Lenders' obligations to make
Revolving Loans, and the Agent's obligation to issue Letters of Credit, are
subject to the satisfaction, on or before the following Borrowing Dates, of the
following conditions:
4.1 On or Before the Closing Date. The Agent shall have received the
following, all in form, detail and content satisfactory to the Lenders:
(a) Notes. The Notes, duly executed by the Company.
(b) Security Documents:
(i) that certain Security Agreement, dated as of
March 11, 1998 from the Company to the Agent, granting the
Agent, for the benefit of the Lenders, a security interest
in all of the personal property of the Company;
(ii) that certain UCC-1 Financing Statement,filed
as Document No. 1743425 on March 16, 1998, in the office of
the Wisconsin Department of Financial Institutions, naming
the Company as Debtor and the Agent as Secured Party, for
the benefit of the Lenders, filed to perfect the security
interests granted to the Agent by the Company; and
(iii) that certain Collateral Assignment of
Deposit Accounts dated as of March 11, 1998 from the Company
to the Agent,
35
assigning to the Agent, for the benefit of the Lenders, the
Company's deposit accounts at InvestorsBank.
(c) Collateral Custodian Agreement. A First Amendment to
Collateral Custodian Agreement, duly executed by the parties thereto,
amending Collateral Custodian Agreement.
(d) Parent Guaranty. An Acknowledgment, Consent and
Reaffirmation, duly executed by the Parent, acknowledging and consent
to the provisions of this Agreement and reaffirming that the Parent
Guaranty remains in full force and effect..
(e) Certified Articles of Incorporation. A copy of the
Articles of Incorporation of the Company and of the Parent, certified
as of a recent date by the Wisconsin Department of Financial
Institutions.
(f) Certificates of Status and Good Standing. Certificates
of status and good standing with respect to the Company and the
Parent, issued as of a recent date by the Secretary of State (or
comparable governmental authority) of each state in which the Company
or the Parent is incorporated or is qualified to transact business as
a foreign corporation.
(g) Closing Certificate of the Company. Copies, certified by
the Secretary of the Company to be true and correct and in full force
and effect on the Closing Date, of (i) the By-Laws of the Company;
(ii) resolutions of the Board of Directors of the Company authorizing
the execution and delivery of the Loan Documents to which the Company
is a party; and (iii) a statement containing the names and titles of
the officer or officers of the Company authorized to sign such Loan
Documents, together with true signatures of such officers.
(h) Closing Certificate of the Parent. Copies, certified by
the Secretary of the Parent to be true and correct and in full force
and effect on the Closing Date, of (i) the By-Laws of the Parent; (ii)
resolutions of the Board of Directors of the Parent authorizing the
execution and delivery of the Loan Documents to which the Parent is a
party; and (iii) a statement containing the names and titles of the
officer or officers of the Parent authorized to sign such Loan
Documents, together with true signatures of such officers.
36
(i) Personal Property Searches. Searches of the appropriate
public offices demonstrating that no security interest, tax lien,
judgment lien or other charge or encumbrance is of record affecting
the Company or its properties except those which are acceptable to the
Agent.
(j) Borrowing Base Certificate. A completed Borrowing Base
Certificate as of March 31, 1999.
(k) No Default Certificate. The representations and
warranties contained in section 3 hereof and in the other Loan
Documents shall be true and correct on and as of the Closing Date;
there shall exist on the Closing Date no Default or Event of Default;
and the Lenders shall have received a certificate to those effects,
signed by the President of the Company.
(l) Opinion of Counsel. An opinion from Xxxxx & Xxxxxxx,
counsel to the Company, in the form of Exhibit F attached hereto.
(m) Proceedings Satisfactory. Such other documents as the
Lenders may reasonably request; and all proceedings taken in
connection with the transactions contemplated by this Agreement, and
all instruments, authorizations and other documents applicable
thereto, shall be satisfactory to the Lenders.
4.2 On or Before Each Subsequent Borrowing Date:
(a) Borrowing Procedure. The Company shall have complied
with the borrowing procedure specified in section 2.3.
(b) Representations and Warranties True and Correct. The
representations and warranties contained in section 3 hereof and in
the other Loan Documents shall be true and correct on and as of the
relevant Borrowing Date except (i) that the representations and
warranties contained in section 3.3 shall apply to the most recent
financial statements delivered pursuant to section 5.1 of this
Agreement and section 8(b) of the Parent Guaranty and (ii) for changes
contemplated or permitted by this Agreement.
(c) No Default. There shall exist on that Borrowing Date no
Default or Event of Default.
(d) Proceedings and Documentation. The Lenders shall have
received such instruments and other documents as they may reasonably
37
request in connection with the making of such Revolving Loans, and all
such instruments and documents shall be in form and content
satisfactory to the Lenders.
5. Affirmative Covenants. The Company covenants that it will, until
the Lenders' Revolving Loan Commitment has terminated or expired, the Lenders'
LOC Commitment has terminated or expired, all outstanding Letters of Credit have
expired and the Notes, and all fees and expenses payable hereunder, have been
paid in full:
5.1 Monthly Financial Statements and Reports. Furnish to the Agent
within 30 days after the end of each month a copy for each Lender of a balance
sheet of the Company as of the end of such month and a related statement of
income for the period from the beginning of the fiscal year to the end of such
month, prepared in accordance with GAAP, subject to normal year-end adjustments.
Such monthly financial statements shall be accompanied by (a) a Borrowing Base
Certificate as of the last day of such month and (b) a Compliance Certificate as
of the last day of such month.
5.2 Other Financial Information. Furnish to the Agent, (a) immediately
upon any increase in the Company's outstanding Commercial Paper obligations, a
notice setting forth the then outstanding balance of such Commercial Paper
obligations, and (b) as soon as available, copies for each Lender of such other
financial information as any Lender may from time to time reasonably request.
5.3 Books and Records; Inspection. Keep proper, complete and accurate
books of record and account and permit any representative of the Agent or any
Lender to visit and inspect any of the properties and examine and copy any of
the books and records of the Company at any reasonable time and as often as may
reasonably be desired. Without limiting the generality of the foregoing, the
Company agrees to permit a third party auditor selected by the Agent, at the
expense of the Company, to conduct on an annual basis an audit of all Third
Party Loans, the scope and timing of which audit are more particularly described
in that certain letter dated March 11, 1998 from the Agent to the Company.
5.4 Insurance. Maintain insurance coverage as may be required by law
or the Security Documents but in any event not less than insurance coverage, in
the forms, amounts and with companies, which would be carried by
38
prudent management in connection with similar properties and businesses. Without
limiting the foregoing, the Company will (a) keep all its physical property
insured against fire and extended coverage risks in amounts and with deductibles
at least equal to those generally maintained by businesses engaged in similar
activities in similar geographic areas; (b) maintain all such worker's
compensation and similar insurance as may be required by law; and (c) maintain,
in amounts and with deductibles at least equal to those generally maintained by
businesses engaged in similar activities in similar geographic areas, general
public liability insurance against claims for bodily injury, death or property
damage occurring on, in or about the properties of the Company and insurance
covering the Company's risk of loss if tenant fails to maintain required
insurance.
5.5 Condition of Property. Keep its properties (whether owned or
leased) in good condition, repair and working order (reasonable wear and tear
excepted).
5.6 Payment of Taxes. Pay and discharge all lawful taxes, assessments
and governmental charges upon it or against its properties prior to the date on
which penalties are attached thereto, unless and to the extent only that the
same shall be contested in good faith and by appropriate proceedings by the
Company and appropriate reserves with respect thereto are established and
maintained in accordance with GAAP.
5.7 Compliance with Law. Do all things necessary to (a) maintain its
corporate existence in its state of incorporation and maintain its qualification
as a foreign corporation in any other state where the ownership of property or
the conduct of business make qualification necessary and where the failure to so
qualify would have a material adverse effect upon its business, operations or
financial condition, (b) preserve and keep in full force and effect its rights
and franchises necessary to continue its business and (c) comply with all
applicable laws, regulations and ordinances, including all applicable
Environmental Laws, except those being contested in good faith and involving no
possibility of criminal liability.
5.8 ERISA Certificate. Comply with all applicable requirements of
ERISA for each Plan and furnish to the Agent, as soon as possible and in any
event within 30 days after the Company shall have obtained knowledge that a
Reportable Event has occurred with respect to any Plan, a certificate of an
officer of the Company setting forth the details as to such Reportable Event and
the action which the Company proposes to take with respect thereto, and a copy
of
39
each notice of a Reportable Event sent to the Pension Benefit Guaranty
Corporation by the Company and, with respect to a Multiemployer Plan, furnish to
the Agent as soon as possible after the Company receives notice or obtains
knowledge that the Company or any member of the Controlled Group may be subject
to withdrawal liability, or required to post a bond to avoid such liability, to
a Multiemployer Plan, a certificate of an officer of the Company setting forth
the details as to such event and the actions which the Company plans to take
with respect thereto.
5.9 Compliance with Other Loan Documents. Timely comply with all of
its obligations under the other Loan Documents.
5.10 Notice of Default or Claimed Default. Furnish to the Agent (a)
immediately upon becoming aware of any Default or Event of Default, a written
notice specifying the nature and period of existence thereof and what action the
Company is taking or proposes to take with respect thereto; (b) immediately upon
becoming aware that the holder of any other Indebtedness issued or assumed by
the Company, or the lessor under any lease as to which the Company is the
lessee, has given notice or has taken any action with respect to a claimed
default thereunder, or under any agreement under which any such Indebtedness was
issued or secured, a written notice specifying the notice given or action taken,
the nature of the claimed default and what action the Company is taking or
proposes to take with respect thereto; (c) immediately upon receipt, copies of
any correspondence, notice, pleading, citation, indictment, complaint, order,
decree or other document from any source asserting or alleging a circumstance or
condition which requires or may require a financial contribution by the Company
or a cleanup, removal, remedial action or other response by or on the part of
the Company under Environmental Laws or which seeks damages or civil, criminal
or punitive penalties from the Company for an alleged violation of Environmental
Laws; and (d) written notice of any condition or event which would make the
warranties contained in section 3 inaccurate, as soon as the Company becomes
aware of such condition or event.
5.11 Deposit Accounts. The Company shall maintain all of its primary
operating and investment accounts at a Lender or at InvestorsBank. The Company
shall, promptly upon request by the Agent, cause InvestorsBank to report to the
Agent the individual and aggregate balances of all the Company's deposit and
investment accounts maintained at InvestorsBank, and the Company
40
shall, within 5 days following request by the Agent, transfer all such accounts
to, and thereafter maintain such accounts at, a Lender.
5.12 Transferred Loans. The Company shall promptly notify the Agent as
soon as the Company becomes aware of the fact that any default has occurred
under any Transferred Loan, and the Company shall promptly notify the Agent if
the Company repurchases or otherwise reacquires any Transferred Loan.
6. Negative Covenants. The Company covenants that, without the prior
written consent of the Majority Lenders, it will not, until the Lenders'
Revolving Loan Commitment has terminated or expired, the Lenders' LOC Commitment
has terminated or expired, all outstanding Letters of Credit have expires and
the Notes, and all fees and expenses payable hereunder, have been paid in full:
6.1 Restricted Payments. Make any Restricted Payments except that so
long as no Default or Event of Default exists and no Default or Event of Default
would arise after giving effect to any such Restricted Payment, the Company may
make, declare and pay dividends to the Parent, provided that in no event shall
the Company pay any dividend that constitutes a return-of-capital to the Parent
nor shall the Company pay any dividend during any fiscal quarter following a
fiscal quarter for which the Company achieved Net Earnings of less than $0.
6.2 Limitations on Indebtedness. Create, incur, assume or permit to
exist any Indebtedness except (a) Indebtedness owed to the Lenders arising under
this Agreement; (b) Indebtedness secured by Permitted Liens; (c) Subordinated
Debt; (d) Commercial Paper; (e) the Company's obligations under Permitted Swap
Contracts; (f) existing Indebtedness listed on Schedule 6.2 attached hereto; (g)
Indebtedness created after the date of this Agreement secured by Third Party
Loans pledged to the lender, provided that the aggregate outstanding principal
balance of such Third Party Loans shall not at any time exceed 110% of the
unpaid principal balance of the Company's Indebtedness to such lender; (h)
Indebtedness created after the date of this Agreement secured by real property
owned by the Company and mortgaged to the lender, provided that the value of
such mortgaged real property (calculated at the lesser of the Appraised Value
thereof or the total cost therefor (as determined in accordance with GAAP))
shall not at any time exceed 120% of the unpaid principal balance of the
Company's Indebtedness to such lender; and (i) unsecured Indebtedness.
41
6.3 Limitations on Contingent Obligations. Create, incur, assume or
permit to exist any Contingent Obligations except for (a) the endorsement of
negotiable or nonnegotiable instruments for collection in the ordinary course of
business, (b) the Contingent Obligations listed on Schedule 6.3 which shall not
be extended, renewed or increased and (c) Contingent Obligations in favor of a
Lender.
6.4 Limitations on Liens and Encumbrances. Create, assume or permit to
exist any mortgage, security interest, lien or charge of any kind, including any
restriction against mortgages, security interests, liens or charges upon any of
its properties or assets, whether now owned or hereafter acquired, except for
Permitted Liens.
6.5 Limitations on Mergers, Etc. Merge or consolidate with or into any
other corporation or entity or sell, lease, transfer or otherwise dispose of in
a single transaction or a series of transactions, all or a substantial part of
its assets other than sales of Third Party Loans or pro rata participation
interests therein on a nonrecourse basis made in the ordinary course of
business.
6.6 Limitations on Acquisitions, Advances and Investments. Acquire
stock issued by a corporation, an ownership interest in any limited liability
company or any partnership or joint venture interest, or all or substantially
all of the assets of another Person, or make any loan, advance or extension of
credit to any Person except (a) the purchase of United States government bonds
and obligations; (b) Third Party Loans to borrowers in the ordinary course of
business of the Company; (c) commercial paper with a maturity not exceeding 90
days; (d) deposits in deposit accounts at banks; (e) investments in bank
repurchase agreements; (f) loans and advances to employees and agents in the
ordinary course of business for travel and entertainment expenses and similar
items; and (g) the purchase of Third Party Loans from InvestorsBank.
6.7 Lines of Business. Engage in any business other than those in
which it is now engaged and any business directly related thereto if, as a
result thereof, the general nature of the businesses engaged in by the Company
would be substantially changed from the general nature of its businesses as of
the Closing Date.
6.8 Sale and Leaseback. Sell or transfer any fixed assets and then or
thereafter rent or lease as lessee any such assets.
42
6.9 Adjusted Tangible Net Worth. Permit Adjusted Tangible Net Worth to
be less than $21,000,000 at any time.
6.10 Leverage Ratio. Permit the Leverage Ratio to be greater than
7.0:1.0 at any time.
6.11 Nonperforming Loans. Permit the ratio of (a) the aggregate
outstanding principal balance of Nonperforming Loans (excluding the aggregate
outstanding principal balance of such loans which have been sold without
recourse) to (b) the aggregate outstanding principal balance of all Third Party
Loans (excluding the aggregate outstanding principal balance of such loans which
have been sold without recourse) to exceed .05:1.0 at any time.
6.12 Third Party Loan Concentration. Permit the sum of (a) the
aggregate outstanding principal balance of Third Party Loans to, and (b) the
aggregate amount of all lease payments, under any leases of real property, owing
from, a single Person and all Affiliates of such Person to exceed $5,000,000
other than the existing loans and leases to the Lang Company and its Affiliates
as set forth on Schedule 6.12 attached hereto.
6.13 Net Earnings. Permit Net Earnings for any fiscal year of the
Company to be less than $1.
6.14 Lease Portfolio Coverage Ratio. Permit the Lease Portfolio
Coverage Ratio to be less than .09:1.0 at any time that the net book value of
properties owned and leased by the Company exceeds $10,000,000.
6.15 Transactions with Affiliates. Enter into or be a party to any
transaction with any Affiliate except as otherwise provided herein or in the
ordinary course of business and upon fair and reasonable terms which are no less
favorable than a comparable arm's length transaction with an entity which is not
an Affiliate.
6.16 Concessions to Borrowers. Make advances to a Third Party Loan
borrower to permit such borrower to meet its debt service payments on such Third
Party Loan or agree to capitalize any interest payment owed by a Third Party
Loan borrower.
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7. Events of Default; Remedies.
7.1 Events of Default. The occurrence of any of the following shall
constitute an Event of Default:
(a) Failure to Pay Note. The Company fails to pay
(a) principal on any Note when due, whether at a stated
payment date, or a date fixed by the Company for prepayment
or by acceleration, or (b) interest on any Note, or any fee
or other amount payable hereunder, when due and such default
in payment of interest, fees or other amounts continues
uncured for a period of five days; or
(b) Falsity of Representations and Warranties. Any
representation or warranty made in any Loan Document
(including, without limitation, any Borrowing Base
Certificate) is false in any material respect on the date as
of which made or as of which the same is to be effective; or
(c) Breach of Covenants. The Company fails to
comply with any term, covenant or agreement contained in (a)
sections 5.2, 5.3, 5.4, 5.5, 5.7, 5.8 or 5.10 and such
failure continues uncured for a period of 20 days, or (b)
sections 5.1, 5.6, 5.9, 5.11 or section 6 hereof; or
(d) Breach of Other Provisions. The Company fails
to comply with any other agreement contained herein and such
default continues for a period of 30 days after written
notice to the Company from the Agent; or
(e) Default Under Permitted Swap Contract. There
occurs under any Swap Contract an Early Termination Date (as
defined in such Swap Contract) resulting from (1) any event
of default under such Swap Contract as to which the Company
is the defaulting party, or (2) any Termination Event ( as
defined in such Swap Contract) as to which the Company is
the "affected party", and, in either event, the liability of
the Company as a result thereof is greater than $100,000.
(f) Default Under Other Agreements. The Company or
the Parent fails to pay when due any other Indebtedness
issued or assumed by the Company or the Parent, or fails to
comply with the terms of any agreement under which such
Indebtedness was created and such default continues beyond
the period of grace, if any, therein provided; or
44
(g) Entry of Final Judgments. A final judgment is
entered against the Company or the Parent which, together
with all unsatisfied final judgments entered against the
Parent, the Company and all Subsidiaries, exceeds the sum of
$500,000, and such judgment shall remain unsatisfied or
unstayed for a period of 60 days after the entry thereof; or
(h) ERISA Liability. Any event in relation to any
Plan which the Lenders determine in good faith could result
in any of the occurrences set forth in section 3.11 above;
or
(i) Default Under Other Loan Documents. An "Event
of Default" (as defined therein) shall occur under any other
Loan Document or the party to any other Loan Document (other
than a Lender) fails to timely comply with any term,
covenant or agreement contained therein; or
(j) Insolvency, Failure to Pay Debts or
Appointment of Receiver, Etc. The Company or the Parent
becomes insolvent or the subject of state insolvency
proceedings, fails generally to pay its debts as they become
due or makes an assignment for the benefit of creditors; or
a receiver, trustee, custodian or other similar official is
appointed for, or takes possession of any substantial part
of the property of, the Company or the Parent; as used
herein, the term "insolvent" means that the sum of the
Company's liabilities, which in accordance with GAAP appear
on the balance sheet of the Company, exceeds the sum of the
Company's assets which appear on such balance sheet; or
(k) Subject of United States Bankruptcy
Proceedings. The taking of corporate action by the Company
or the Parent to authorize such organization to become the
subject of proceedings under the United States Bankruptcy
Code; or the execution by the Company or the Parent of a
petition to become a debtor under the United States
Bankruptcy Code; or the filing of an involuntary petition
against the Company or the Parent under the United States
Bankruptcy Code which remains undismissed for a period of 60
days; or the entry of an order for relief under the United
States Bankruptcy Code against the Company or the Parent.
7.2 Remedies. Upon the occurrence of any of the events described in
sections 7.1(a) through 7.1(i), inclusive, the Agent shall, at the direction of
the Majority Lenders, at the same or different times, take any of the following
actions:
45
(a) declare the Lenders' Revolving Loan
Commitments and LOC Commitments to be terminated, whereupon
the Lenders' Revolving Loan Commitments and LOC Commitments
shall, except as otherwise provided in section 7.3,
immediately terminate; or
(b) declare the Revolving Loans, and all accrued
interest thereon, to be immediately due and payable,
whereupon the Revolving Loans, all accrued interest thereon
and all other amounts owing or payable under the Loan
Documents shall be immediately due and payable without
presentment, demand, protest or notice of any kind, all of
which are expressly waived by the Company, and require the
Company to comply with the provisions of section 2.1(c)(vi)
of this Agreement.
Promptly following the making of such declaration, the Agent shall
give notice thereof to the Company and each Lender but the failure to give such
notice shall not impair any of the effects of such declaration. Upon the
occurrence of any of the events described in sections 7.1(j) or (k), the
Lenders' Revolving Loan Commitments and LOC Commitments shall, except as
otherwise provided in section 7.3, immediately terminate and the Notes, together
with accrued interest thereon and all other amounts owing or payable under the
Loan Documents shall be immediately due and payable without presentment, demand,
protest or notice of any kind, all of which are expressly waived by the Company
and the Company shall deliver to the Agent, for the benefit of the Agent and the
Lenders, Cash Collateral as required by section 2.1(c)(vi) of this Agreement.
7.3 Revolving Loans to Retire Commercial Paper. Notwithstanding
anything to the contrary contained in this Agreement (including any
insufficiency in the Borrowing Base Amount to support advances pursuant to this
section 7.3), if there is Commercial Paper outstanding on the date the Revolving
Loan Commitments would otherwise terminate under section 7.2, to the extent that
such Commercial Paper was issued prior to the date of delivery of any notice of
Default or Event of Default from the Agent to the Company, unless at the time
the Revolving Loan Commitments would so terminate an Event of Default described
in sections 7.1(j) or (k) has occurred and is continuing, and except as
otherwise prohibited by applicable law, the Lenders shall remain obligated to
make Revolving Loans in the manner set forth in this section.
On the Business Day after the Agent provides the notice of termination
of the Revolving Loan Commitment under section 7.2 each CP Agent shall provide
to the Agent a schedule specifying the maturity dates of outstanding
46
Commercial Paper placed by such CP Agent, the principal and interest due on each
maturity date and the aggregate amount of principal and interest to become due
with respect to such Commercial Paper. The Agent shall promptly forward such
schedules to the Lenders. No later than 1 p.m. Milwaukee, Wisconsin time on the
day following the day the Lenders receive copies of such schedules, provided
that no Event of Default under sections 7.1(j) or (k) then exists, each Lender
shall forward to the Agent such Lender's Percentage of the aggregate principal
and interest to become due on Commercial Paper after the termination of the
Revolving Loan Commitments. Such funds shall be held in a noninterest bearing
account in the name of the Agent and the Agent shall forward the appropriate
amount of principal and interest to each CP Agent on each respective maturity
date as set forth in the schedules provided to the Agent by each CP Agent.
The advance by a Lender under this section 7.3 shall constitute a
Revolving Loan to the Company, shall be a Base Rate Loan bearing interest at the
Default Rate and shall be immediately due and payable by the Company.
The Company acknowledges and consents to the provisions of this
section 7.3. The Company further acknowledges that the placement of Commercial
Paper by the CP Placement Agents under the CP Placement Agreements is solely at
the discretion of the CP Placement Agents and the CP Placement Agents may
decline at any time to continue to so place such Commercial Paper.
8. The Agent.
8.1 Appointment and Duties of the Agent. The Lenders hereby appoint
Firstar, subject to the terms and conditions of this section 8, as the Agent for
the Lenders under and for purposes of this Agreement and the other Loan
Documents. The Agent shall also act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith. Each of
the Lenders hereby irrevocably, authorizes, and directs the Agent to take such
action on its behalf and to exercise such powers hereunder as are delegated to
the Agent herein, together with such powers as are reasonably incident thereto,
in connection with the administration of and enforcement of any rights or
remedies with respect to this Agreement and the other Loan Documents. The Agent
shall use reasonable diligence to examine the face of each document received by
it hereunder to determine whether such document, on its face, appears to be what
it purports to be. However, the Agent shall not be under any duty to examine
into or
47
pass upon the validity or genuineness of any documents received by it hereunder
and the Agent shall be entitled to assume that any of the same which appears
regular on its face is genuine and valid and what it purports to be.
8.2 Discretion and Liability of the Agent. Subject to sections 8.3,
8.5 and 9.12 hereof, the Agent shall be entitled to use its discretion with
respect to exercising or refraining from exercising any rights which may vested
in it by, or with respect to, taking or refraining from taking any action or
actions which it may be able to take under or in respect of this Agreement and
the other Loan Documents. Neither the Agent nor any of its directors, officers,
employees, agents or representatives shall be liable for any action taken or not
taken under any Loan Document in the absence of gross negligence or willful
misconduct.
8.3 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default, except with
respect to a failure by the Company to pay principal, interest or fees required
to be paid to the Agent, unless the Agent has actual knowledge of such facts or
has received notice from the Company or a Lender in writing that the Company or
such Lender considers that a Default or Event of Default has occurred and is
continuing and which specifies the nature thereof.
If the Agent shall acquire actual knowledge of or receive notice from
a Lender that a Default or Event of Default has occurred, the Agent shall
promptly notify the Lenders and the Company of such Default or Event of Default.
8.4 Consultation. The Agent in good faith may consult with legal
counsel or other advisors selected by it and shall be entitled to fully rely
upon any opinion of such counsel or other advisor in connection with any action
taken or not taken by the Agent in accordance with such opinion.
8.5 Communications To and From the Agent. Upon any occasion requiring
or permitting an approval, consent, waiver, election or other action on the part
of the Lenders, unless action by the Agent alone is expressly permitted
hereunder, action shall be taken by the Agent for and on behalf or for the
benefit of the Lenders upon the direction of the Majority Lenders or, if
required under section 9.12, all the Lenders. The Company may rely upon any
communication from the Agent hereunder and need not inquire into the propriety
of or authorization for such communication. Upon receipt by the Agent from the
48
Company or any Lender of any communication calling for an action on the part of
the Lenders, the Agent will, in turn, promptly inform the other Lenders in
writing of the nature of such communication. In addition, the Agent shall
forward to each Lender, promptly after receipt, copies of information provided
by the Company pursuant to the requirements of the Loan Documents including,
without limitation, the financial statements referred to in section 5.1 and
section 8(b) of the Parent Guaranty, the Borrowing Base Certificates and the
notices referred to in section 5.10.
8.6 Limitations of Agency. The Agent will act under the Loan Documents
solely as the agent of the Lenders and only to the extent specifically set forth
in the Loan Documents and will, under no circumstances, be considered to be a
fiduciary of any nature whatsoever in respect of any other Person. The
relationship between the Agent and the Lenders is that of agent and principal
only and the Agent shall not be deemed to be a trustee or fiduciary for any
Lender. The Agent may generally engage in any kind of banking or trust business
with the Company as if it were not the Agent.
8.7 No Representation or Warranty. No Lender (including the Agent)
makes to any other Lender any representation or warranty, express or implied, or
assumes any responsibility with respect to the execution, validity or
enforceability of this Agreement or the other Loan Documents.
8.8 Lender Credit Decision. Each Lender acknowledges that it has,
independent of and without reliance upon any other Lender (including the Agent)
or any information provided by any other Lender (including the Agent) and based
upon the financial statements of the Company and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independent of and without reliance upon any other Lender (including the
Agent) and based upon such documents and information as it shall deem
appropriate at that time, continue to make its own credit decision in taking or
not taking action under this Agreement and the other Loan Documents.
8.9 Indemnity. Each Lender hereby indemnifies (which indemnity shall
survive the termination of this Agreement) the Agent, pro rata according to such
Lender's Percentage, from and against any and all liabilities, obligations,
losses, damages, claims, costs, or expenses of any kind or nature whatsoever
including reasonable attorneys' fees which may at any time be imposed on,
incurred by, or asserted against, the Agent in any way related to or arising out
49
of this Agreement or the other Loan Documents and as to which the Agent is not
reimbursed by the Company; provided, however, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted solely from the Agent's
gross negligence or willful misconduct. The Agent shall not be required to take
any action hereunder or under any other Loan Document, or to prosecute or defend
any suit in respect of the transactions contemplated hereby, unless it is
indemnified hereunder to its satisfaction. If any indemnity in favor of the
Agent shall be or become, in the Agent's determination, inadequate, the Agent
may call for additional indemnification from the Lenders and cease to do the
acts indemnified against hereunder until such additional indemnity is given.
8.10 Resignation or Removal of Agent; Successor Agent. The Agent may
resign as such at any time upon at least 30 days' prior notice to the Company
and all Lenders. The Agent may be removed at any time by the Majority Lenders
upon at least 30 days' prior notice by the Majority Lenders to the Company and
the Agent, but only for cause consisting of its gross negligence or willful
misconduct or following a declaration of insolvency by the appropriate
regulators. If the Agent at any time shall resign or be removed, the Majority
Lenders may appoint another Lender as a successor Agent which shall thereupon
become the Agent hereunder. If no successor Agent shall have been so appointed
by the Majority Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent gives notice of resignation, then the retiring
Agent may, on behalf of the Lenders, appoint the successor Agent, which shall be
one of the Lenders. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall be entitled to receive from the
retiring Agent such documents of transfer and such assignments as such successor
Agent may reasonably request, and shall thereupon succeed to and become vested
with all rights, powers, privileges and duties of the retiring Agent and the
retiring Agent shall be discharged from its duties and obligations as Agent
under this Agreement.
9. Miscellaneous.
9.1 Survival of Representations and Warranties. The Company's
representations and warranties contained in section 3 hereof shall survive
closing and execution and delivery of the Notes.
9.2 Indemnification. The Company agrees to defend, indemnify and hold
harmless the Agent, the Collateral Custodian, the Lenders and
50
their respective directors, officers, employees and agents from and against any
and all loss, cost, expense or liability (including reasonable attorneys' fees)
incurred in connection with any and all claims or proceedings (whether brought
by a private party or governmental agency) as a result of, or arising out of or
relating to:
(a) bodily injury, property damage, abatement or
remediation, environmental damage or impairment or any other
injury or damage resulting from or relating to any hazardous
or toxic substance or contaminated material (as determined
under Environmental Laws) located on or migrating into, from
or through property previously, now or hereafter owned or
occupied by the Company, which the Agent or any Lender may
incur due to the making of the Revolving Loans, the exercise
of any of its rights under the Security Documents, or
otherwise;
(b) any transaction financed or to be financed, in
whole or in part, directly or indirectly, with the proceeds
of any Revolving Loan;
(c) any claim that the offering, issuance,
placement or sale of Commercial Paper, or any document used
in connection therewith, resulted in a violation of law,
including any federal or state securities law
(d) the entering into, performance of and exercise
of their rights under this Agreement or any other Loan
Document by the Agent, the Collateral Custodian and the
Lenders.
This indemnity will survive foreclosure of any
security interest or mortgage or conveyance in lieu of
foreclosure and the repayment of the Revolving Loans and the
discharge and release of the Security Documents.
9.3 Expenses. The Company agrees, whether or not the transaction
hereby contemplated shall be consummated, to pay on demand (a) all out-of-pocket
expenses incurred by the Agent in connection with the negotiation, execution,
administration, or amendment of this Agreement and the other Loan Documents,
including reasonable counsel fees and expenses, (b) all out-of-pocket expenses
incurred by the Agent, the Collateral Custodian or any Lender in connection with
the enforcement of this Agreement or any other Loan Document, (c) any taxes
(including any interest and penalties relating thereto) payable by any Lender
(other than taxes based upon such Lender's net income) on or with respect to the
transactions contemplated by this Agreement (the Company hereby agreeing to
indemnify each Lender with respect thereto) and (d) all out-of-pocket expenses,
51
including reasonable counsel fees and expenses, incurred by the Agent, the
Collateral Custodian or any Lender in connection with any litigation, proceeding
or dispute in any way related to the Agent's, the Collateral Agent's and the
Lenders' relationships with the Company, whether arising hereunder or otherwise.
The obligations of the Company under this section will survive payment of the
Revolving Loans.
9.4 Notices. All notices provided for herein shall be in writing and
shall be (a) delivered; (b) sent by express or first-class mail; or (c) sent by
facsimile transmission and confirmed in writing provided to the recipient in a
manner described in (a) or (b), and, if to the Agent or a Lender, addressed to
it at the address set forth below its signature, and if to the Company,
addressed to it at X.X. Xxx 000, X000 X0000 Xxxxx Xxxx and Xxxxxxx X, Xxxxxxxx,
Xxxxxxxxx 00000, Attention: Vice President of Finance, Facsimile No.
000-000-0000, or to such other address with respect to any party as such party
shall notify the others in writing; such notices shall be deemed given when
delivered or mailed or so transmitted.
9.5 Participations. The Company agrees that each Lender may, at its
option, sell to another financial institution or institutions participating
interests in the Note payable to such Lender and, in connection with each such
sale, and thereafter, disclose to the purchaser or prospective purchaser of each
such participating interest financial and other information concerning the
Company; provided, however, (a) such Lender's obligations under this Agreement
shall remain unchanged, (b) such Lender shall remain solely responsible for the
performance of such obligations, (c) the Company and the Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the other Loan Documents and (d)
no Lender shall transfer or grant any participating interest under which the
participant has rights to approve any amendment to, or any consent or waiver
with respect to this Agreement or any other Loan Document except to the extent
such amendment, consent or waiver would require unanimous consent of the Lenders
as described in section 9.12(b) and (c). The Company agrees that if amounts
outstanding under this Agreement or a Note are due and unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each such purchaser shall be deemed to have, to the extent
permitted by applicable law, the right of setoff in respect of its participating
interest in amounts owing under this Agreement and such Note to the same extent
as if the amount of its participating interest were owed directly to it. The
Company further agrees that
52
each such purchaser shall be entitled to the benefits of sections 2.13 and 2.14
with respect to its participation in the selling Lender's Revolving Loan
Commitment; provided that no such purchaser shall be entitled to receive any
greater amount pursuant to that section than the Lender would have been entitled
to receive if no such sale had occurred.
9.6 Titles. The titles of sections in this Agreement are for
convenience only and do not limit or construe the meaning of any section.
9.7 Parties Bound; Waiver. The provisions of this Agreement shall
inure to the benefit of and be binding upon any successor of any of the parties
hereto and shall extend and be available to any holder of a Note; provided that
the Company's rights under this Agreement are not assignable. No delay on the
part of the Agent or any Lender in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, and no single or partial exercise
of any right, power or privilege hereunder shall preclude other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein specified are cumulative and not exclusive of any
rights or remedies which the Agent or a Lender would otherwise have.
9.8 Governing Law. This Agreement is being delivered in and shall be
deemed to be a contract governed by the laws of the State of Wisconsin and shall
be interpreted and enforced in accordance with the laws of that state without
regard to the principles of conflicts of laws.
9.9 Submission to Jurisdiction; Service of Process. As a material
inducement to the Agent and the Lenders to enter into this Agreement:
(a) THE COMPANY AGREES THAT ALL ACTIONS OR
PROCEEDINGS IN ANY MANNER RELATING TO OR ARISING OUT OF THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS MAY BE BROUGHT ONLY IN
COURTS OF THE STATE OF WISCONSIN LOCATED IN MILWAUKEE COUNTY
OR THE FEDERAL COURT FOR THE EASTERN DISTRICT OF WISCONSIN
AND THE COMPANY CONSENTS TO THE JURISDICTION OF SUCH COURTS.
THE COMPANY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH COURT AND ANY RIGHT IT MAY
HAVE NOW OR HEREAFTER HAVE TO CLAIM THAT ANY SUCH ACTION OR
PROCEEDING IS IN AN INCONVENIENT COURT; and
53
(b) The Company consents to the service of process
in any such action or proceeding by certified mail sent to
the address specified in section 9.4.
Nothing contained herein shall affect the right of
the Agent or the Lenders to serve process in any other
manner permitted by law or to commence an action or
proceeding in any other jurisdiction.
9.10 Waiver of Jury Trial. THE COMPANY, THE AGENT AND THE LENDERS
HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THE RIGHT EACH OF THEM MAY HAVE TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM BASED ON OR ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ANY OTHER
ACTION OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE AGENT AND
THE LENDERS TO ENTER INTO THIS AGREEMENT.
9.11 Limitation of Liability. THE COMPANY, THE AGENT AND THE LENDERS
HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR RECOVER FROM ANY OTHER
PARTY ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES,
OF WHATEVER NATURE, OTHER THAN ACTUAL DAMAGES.
9.12 Amendments. No provision of this Agreement or the other Loan
Documents may be amended, modified, supplemented, changed, waived, discharged or
terminated unless the consent of the Majority Lenders and the Company is
obtained in writing, provided, however, that no such amendment, modification or
waiver which would:
(a) modify any requirement hereunder that any
particular action be taken by all the Lenders or by the
Majority Lenders shall be effective unless consented to by
each Lender;
(b) modify this section 9.12, change the
definition of "Majority Lenders," increase or extend any
Revolving Loan Commitment or LOC Commitment, increase the
Percentage of any Lender, change the definition of
"Borrowing Base Amount," or reduce, or extend the scheduled
due date for
54
payment of, any fees payable hereunder, shall be effective
unless consented to by each Lender;
(c) extend the scheduled due date for the payment
of principal or interest on any Note (or reduce the
principal amount of or rate of interest on any Note) shall
be made without the consent of the holder of such Note;
(d) release any collateral (except as permitted
herein or in the applicable Loan Document) shall be
effective unless consented to by each Lender; or
(e) adversely affect the interests, rights, or obligations
of the Agent shall be made without the consent of the Agent.
9.13 Counterparts. This Agreement and any amendment hereof may be
executed in several counterparts, each of which shall be executed by the Agent
and the Company and be deemed to be an original and all of which together shall
constitute one instrument. This Agreement shall become effective when
counterparts hereof executed on behalf of the Company, the Agent and each Lender
shall have been received by the Agent and notice thereof shall have been given
by the Agent to the Company and each Lender.
9.14 Entire Agreement. This Agreement and the other Loan Documents
shall constitute the entire agreement of the parties pertaining to the subject
matter hereof and supersedes all prior or contemporaneous agreements and
understandings of the parties in connection therewith.
9.15 Release of Mortgage Collateral. If the Company disposes of any
real property constituting Eligible Leased Real Estate, in a bona fide, arm's
length transaction, the Lenders agree that the Collateral Agent shall promptly
release any mortgage and assignment of leases and rents, in favor of the
Collateral Agent, for the benefit of the Lenders, encumbering the relevant
Eligible Leased Real Estate, upon payment by the Company to the Agent, for the
benefit of the Lenders, of an amount equal to the net book value of such
Eligible Leased Real Estate as of the date of such disposition
9.16 Acknowledgment of Security Interests, Mortgages and Liens; New
Benefited Parties. The Company specifically acknowledges that all of the
Company's obligations to the Agent and the Lenders pursuant to this Agreement,
the Notes, the other Loan Documents, and any amendments thereto,
55
shall be secured by all security interests, mortgages, pledges, liens,
assignments and hypothecations previously or hereafter granted by the Company to
the Agent, for the benefit of the Lenders. The Company further acknowledges and
agrees that the Lenders party to this Agreement, and those Lenders that may
become parties hereto from time to time hereafter, (i) shall be deemed
"Benefited Parties" (as defined therein) under any and all collateral documents
providing security for the Company's obligations to the Agent and the Lenders
pursuant to this Agreement, the Notes and the other Loan Documents, including
all Security Documents, and (ii) shall have all of the rights and benefits of
the "Benefited Parties" thereunder.
[Intentionally Left Blank, Signatures Continue on Next Page]
56
BANDO XXXXXXXXXX SMALL BUSINESS
LENDING CORPORATION
BY /s/ Xxxxxx X. Xxxxxxxx
Its President
Revolving
Loan
Commitment Percentage
---------- ----------
FIRSTAR BANK MILWAUKEE, N.A.,
as the Agent
BY /s/ Xxx X. Xxxxx
Its Vice President
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxx
Facsimile No.: 000-000-0000
$20,000,000 28.5714286% FIRSTAR BANK MILWAUKEE, N.A.,
as a Lender
BY /s/ Xxxx X. Xxxxx
Its Vice President
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxx
Facsimile No.: 000-000-0000
$20,000,000 28.5714285% U.S. BANK NATIONAL ASSOCIATION
(formerly known as First Bank National
Association)
BY /s/ Xxxxxx Xxxxxxx
Its Vice President
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Facsimile No.: 000-000-0000
S-1
Revolving
Loan
Commitment Percentage
---------- ----------
$10,000,000 14.2857143% LASALLE NATIONAL BANK
BY /s/ Xxxxx X. Xxxxxxx
Its Senior Vice President
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Facsimile No.: 000-000-0000
$10,000,000 14.2857143% THE HUNTINGTON NATIONAL BANK
BY /s/ Xxxxxx X. Friend
Its Vice President
Address: 00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Facsimile No.: 000-000-0000
$10,000,000 14.2857143% M&I XXXXXXXX & XXXXXX BANK
BY /s/ Xxxxxxx X. Xxxxxx
Its Vice President
BY /s/ Xxxxxx X. Xxxxxxx
Its Assistant Vice President
Address: 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Facsimile No.: 000-000-0000
$70,000,000 100.00%
============ =========
S-2
SCHEDULE 1
Existing Liens and Security Interests
SCHEDULE 3.4
Litigation
SCHEDULE 3.20
Year 2000 Compliance
SCHEDULE 6.2
Existing Indebtedness
SCHEDULE 6.3
Existing Contingent Obligations
