EXHIBIT 10.12
OshKosh B'Gosh, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
CREDIT AGREEMENT
June 24, 1994
Firstar Bank Milwaukee,
National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Bank One, Milwaukee, NA
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Norwest Bank Wisconsin,
National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Gentlemen:
OshKosh B'Gosh, Inc., a Delaware corporation with
its principal offices located in the City of Oshkosh,
Wisconsin (the "Company"), hereby requests that each of you
(collectively the "Banks" and individually a "Bank") severally
agree to make loans to the Company from time to time on the
terms and conditions set forth below:
ARTICLE I
LOANS AND NOTES
1.1 Revolving Credit. From time to time prior to
June 24, 1997 or the earlier termination in full of the
Commitments (in either case the "Termination Date"), the
Company may obtain loans from each of the Banks, pro rata
according to each Bank's Percentage Interest, up to an
aggregate principal amount equal to the amount by which (i)
$60,000,000 (the "Aggregate Commitment" and as to each Bank's
respective Percentage Interest thereof, its "Commitment"), as
terminated or reduced pursuant to section 1.7, exceeds (ii)
the sum of (A) the aggregate amount of Letter of Credit
Obligations (as defined in section 10.1(o) below), and (B) the
aggregate face amount of outstanding Commercial Paper (as
defined in section 10.1(d) below), including for this purpose
all Nicolet Funding Corp. Loans (as defined in section 1.9(e)
below). The Commitment and Percentage Interest of each Bank
is set forth in the table below:
Percentage
Name of Bank Commitment Interest
Firstar Bank Milwaukee, $19,500,000 32.5%
National Association
Bank One, Milwaukee, NA $16,500,000 27.5%
Xxxxxx Trust and Savings $12,000,000 20.0%
Bank
Norwest Bank Wisconsin, $12,000,000 20.0%
National Association
Total: $60,000,000 100%
The failure of any one or more of the Banks to lend in
accordance with its Commitment shall not relieve the other
Banks of their several obligations hereunder, but no Bank
shall be liable in respect to the obligation of any other Bank
hereunder or be obligated in any event to lend in excess of
its Commitment. Subject to the limitations of section
2.2(d)(3) the Company may repay such loans and reborrow
hereunder from time to time prior to the Termination Date.
Each loan hereunder from the Banks collectively shall be in a
multiple of $100,000 (except that any such loan subject to a
LIBOR Pricing Option shall be in an amount of $1,000,000 or
any multiple of $100,000 in excess of such amount). The loans
from each Bank advanced under this section 1.1 shall be
evidenced by a single promissory note of the Company (each a
"Revolving Credit Note", and collectively with the Demand
Notes (as defined in section 1.2 below), sometimes called the
"Notes") in the form of Exhibit 1.1 annexed hereto, payable to
the order of the lending Bank.
1.2 Demand Line of Credit. There is hereby
established a revocable line of credit in the aggregate
principal amount of $40,000,000 (the "Demand Line") for the
current use of the Company. The amount of the Demand Line
provided by each Bank is set forth in the table below:
Name of Bank Demand Line
Firstar Bank Milwaukee, $13,000,000
National Association
Bank One, Milwaukee, NA $11,000,000
Xxxxxx Trust and Savings Bank $8,000,000
Norwest Bank Wisconsin, National
Association $8,000,000
Total: $40,000,000
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Each Bank in its sole discretion may decline to make advances
under the Demand Line at any time without having made demand
for payment. Any Bank so declining to make advances shall
immediately give written notice of such declination to the
Company and the Agent, but failure to give such notice shall
not affect the validity or effectiveness of such declination.
Any loans under the Demand Line shall be made pro rata
according to the participating Banks' respective shares of the
Demand Line from time to time in effect, up to an aggregate
principal amount equal to (i) $40,000,000 minus (ii) the
amount by which (A) the sum of (1) the outstanding principal
amount of all revolving credit loans made pursuant to section
1.1, (2) the aggregate amount of Letter of Credit Obligations,
and (3) the aggregate face amount of outstanding Commercial
Paper, including for this purpose all Nicolet Funding Corp.
Loans, exceeds (B) the Aggregate Commitment. The Demand Line
shall be unused for at least 90 consecutive days during each
twelve-month period commencing July 1 of a given year and
ending June 30 the following year. Each advance under the
Demand Line from the Banks collectively shall be in a multiple
of $100,000 (except that any such advance subject to a LIBOR
Pricing Option shall be in an amount of $1,000,000 or any
multiple of $100,000 in excess of such amount). The advances
under the Demand Line from each Bank shall be evidenced by a
single promissory note of the Company (each a "Demand Note",
and collectively with the Revolving Credit Notes, sometimes
called the "Notes"), payable on demand to the order of the
lending Bank in the form of Exhibit 1.2 attached hereto. The
Company acknowledges that all amounts due under the Demand
Notes are payable on demand, regardless of whether the Company
has breached any of the terms, covenants and conditions set
forth in this Agreement, the Notes, any Collateral Document or
any other document or agreement applicable to the loans
described herein.
1.3 Notes. The Notes shall be executed by the
Company and delivered to the Banks prior to the initial loans.
Although the Notes shall be expressed to be payable in the
full amounts specified above, the Company shall be obligated
to pay only the amounts actually disbursed to or for the
account of the Company, together with interest on the unpaid
balance of sums so disbursed which remains outstanding from
time to time, at the rates and on the dates specified in the
Notes, together with the other amounts provided therein.
1.4 Letters of Credit.
(a) Firstar Bank Milwaukee, N.A. and such
other Bank or Banks as the Company may from time to
time designate with the consent of the Agent (each
an "LOC Bank") shall from time to time when so
requested by the Company issue standby and import
letters of credit, respectively (each a "Letter of
Credit" and collectively the "Letters of Credit")
for the account of the Company up to an aggregate
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face amount equal to the amount by which (i) the sum
of (A) the Aggregate Commitment and (B) the Demand
Line from time to time in effect exceeds (ii) the
sum of (A) the outstanding principal amount of loans
made pursuant to sections 1.1 and 1.2, (B) the
aggregate amount of all unpaid Reimbursement
Obligations (as defined in section 10.1(r) below)
and (C) the aggregate face amount of outstanding
Commercial Paper, including for this purpose all
Nicolet Funding Corp. Loans. In addition to the
foregoing aggregate limitation on Letters of Credit,
standby Letters of Credit shall not exceed
$25,000,000 in aggregate face amount at any time
outstanding and import Letters of Credit shall not
exceed $35,000,000 in aggregate face amount at any
time outstanding. Each LOC Bank hereby grants to
each other Bank, and each other Bank hereby agrees
to take, a pro rata participation in each Letter of
Credit issued hereunder and all rights (including
rights to reimbursement from the Company under
paragraph (c) below) and obligations associated
therewith in accordance with the Percentage Interest
of each Bank. In the event of any drawing on a
Letter of Credit which is not reimbursed by or on
behalf of the Company, each Bank shall pay to the
appropriate LOC Bank a proportionate amount of such
drawing equal to its Percentage Interest therein.
Each LOC Bank shall divide the proceeds of any
reimbursement of a drawing on a Letter of Credit
with the other Banks that have made payment to the
LOC Bank pursuant to the foregoing sentence, pro
rata according to the respective contributions of
such other Banks.
(b) The Company agrees to pay to the Agent for
the pro rata benefit of the Banks a letter of credit
fee in respect of each standby Letter of Credit in
the amount of three quarters of one percent (3/4%)
per annum of the face amount of such standby Letter
of Credit. Such fees shall be payable quarterly in
arrears on the first day of each calendar quarter.
(c) The Company hereby unconditionally
promises to pay to the appropriate LOC Bank upon
demand, without defense, setoff or counterclaim, the
amount of each drawing under Letters of Credit
issued by such LOC Bank plus interest on the
foregoing from the date due at the Prime Rate (as
defined in section 2.2(b)(2)).
(d) Reliance on Documents. Delivery to the
LOC Banks of any documents strictly complying on
their face with the requirements of any Letter of
Credit shall be sufficient evidence of the validity,
genuineness and sufficiency thereof and of the good
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faith and proper performance of drawers and users of
such Letter of Credit, their agents and assignees;
and the LOC Banks may rely thereon without liability
or responsibility with respect thereto, even if such
documents should in fact prove to be in any or all
respects invalid, fraudulent or forged.
(e) Non-Liability for Other Matters. The LOC
Banks shall not be liable to the Company for (i)
honoring any requests for payment under any Letter
of Credit which strictly comply on their face with
the terms of such Letter of Credit, (ii) any delay
in giving or failing to give any notice, (iii)
errors, delays, misdeliveries or losses in
transmission of telegrams, cables, letters or other
communications or documents or items forwarded in
connection with any Letter of Credit or any draft,
(iv) accepting and relying upon the name, signature
or act of any party who is or purports to be acting
in strict compliance with the terms of any Letter of
Credit; or (v) any other action taken or omitted by
the LOC Banks in good faith in connection with any
Letter of Credit or any draft; except only that the
Company shall have a claim against an LOC Bank, and
such LOC Bank shall be liable to the Company, to the
extent of damages suffered by the Company which the
Company proves were caused by (A) the LOC Bank's
willful misconduct or gross negligence or (B) the
LOC Bank's willful and wrongful failure to pay under
any Letter of Credit after the presentation to it of
documents strictly complying with the terms and
conditions of the Letter of Credit.
1.5 Use of Proceeds. The Company represents,
warrants and agrees that:
(a) The proceeds of the loans made hereunder
will be used solely for the following purposes: (i)
contemporaneously with the making of the initial
loan hereunder, the proceeds of such initial loan
shall be used to the extent necessary to pay all
indebtedness of Company outstanding under its demand
lines of credit with Firstar Bank Milwaukee, N.A.
and Norwest Bank Wisconsin; and (ii) all other
proceeds shall be used (A) for the repayment at
maturity of outstanding Commercial Paper (to the
extent necessary), and (B) for working capital and
other lawful corporate purposes.
(b) No part of the proceeds of any loan made
hereunder will be used to "purchase" or "carry" any
"margin stock" or to extend credit to others for the
purpose of "purchasing" or "carrying" any "margin
stock" (as such terms are defined in the Regulation
U of the Board of Governors of the Federal Reserve
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System), and the assets of the Company and its
Subsidiaries do not include, and neither the Company
nor any Subsidiary has any present intention of
acquiring, any such security.
1.6 Commitment Fee. The Company shall pay to the
Agent for the account of the Banks, pro rata according to
their respective Percentage Interests, a commitment fee
computed at the rate of one-eighth of one percent (1/8%) per
annum on the Aggregate Commitment (as reduced pursuant to
section 1.7). Such commitment fees shall accrue during the
period from the date of this Agreement to and including the
Termination Date and be payable quarterly in advance on the
date of the initial loan and on the first day of each calendar
quarter thereafter.
1.7 Termination or Reduction.
(a) The Company shall have the right, upon
five business days' prior written notice to each
Bank, to ratably reduce in part the Commitments,
provided, however, that (i) each partial reduction
of the Aggregate Commitment shall be in the amount
of $100,000 or an integral multiple thereof, and
(ii) no reduction shall reduce the Aggregate
Commitment to an amount less than the sum of (A) the
aggregate principal amount of outstanding revolving
credit loans made under Section 1.1, (B) the
aggregate amount of Letter of Credit Obligations,
and (C) the aggregate face amount of outstanding
Commercial Paper, including for this purpose all
Nicolet Funding Corp. Loans. Subject to the
limitations of the preceding sentence, the entire
Commitments of all of the Banks may be terminated in
whole at any time upon five Business Days' prior
written notice to each Bank.
(b) Each Bank in its sole discretion may at
any time reduce or terminate its individual Demand
Line by giving written notice of such reduction or
termination to the Agent and the Company. If any
Bank shall decline to make additional advances
pursuant to the Demand Line or shall demand payment
of any amount outstanding under its Demand Note, the
aggregate Demand Line shall automatically be reduced
by an amount equal to such Bank's individual Demand
Line.
1.8 Optional Prepayment. The Notes may be prepaid
in whole or in part at the option of the Company at any time
without premium or penalty except as otherwise provided in
section 2.2(d)(3). All prepayments shall be applied as set
forth in section 2.4(b) pro rata among the Banks in accordance
with their respective Percentage Interests. All prepayments
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shall be accompanied by interest accrued on the amount prepaid
through the date of prepayment.
1.9 Commercial Paper.
(a) The Company may issue Commercial
Paper from time to time, including sales of
Commercial Paper through one or more of the Banks
acting as placement agent pursuant to separate
agreements between the Company and such Bank or
Banks. The aggregate face amount of all outstanding
Commercial Paper (but not including for this purpose
any Nicolet Funding Corp. Loans) shall not at any
time exceed the lesser of (i) $60,000,000 and (ii)
the amount by which (A) the sum of (1) the Aggregate
Commitment and (2) the Demand Line in effect from
time to time, exceeds (B) the sum of (1) the
outstanding principal amount of loans made pursuant
to sections 1.1 and 1.2, (2) the aggregate amount of
Letter of Credit Obligations and (3) the outstanding
principal amount of all Nicolet Funding Corp. Loans.
No Commercial Paper shall have a term to maturity
greater than 100 days.
(b) The Company shall pay a Commercial
Paper placement fee in respect of Commercial Paper
placed by any of the Banks computed at a rate of
one-quarter of one percent (1/4%) per annum of the
aggregate face amount of such Commercial Paper,
payable at the time such Commercial Paper is issued
as follows: (i) one-eighth of one percent (1/8%) to
the Bank acting as placement agent for the sale of
such Commercial Paper and (ii) one-eighth of one
percent (1/8%) to the Agent for the pro rata benefit
of the Banks.
(c) The Company will give written notice
to the Agent in the form of Part 1 to Exhibit 2.1
hereto on each Business Day on which there is any
change in the aggregate outstanding face amount of
Commercial Paper and Nicolet Funding Corp. Loans,
setting forth the aggregate principal amount of all
Commercial Paper and Nicolet Funding Corp. Loans
then outstanding after giving effect to the issuance
or repayment of Commercial Paper and Nicolet Funding
Corp. Loans (as the case may be) taking place on
such Business Day.
(d) For all purposes of this Agreement,
the outstanding face amount of all Commercial Paper
(but not including for this purpose any Nicolet
Funding Corp. Loans) shall be deemed to be use of
the Aggregate Commitment. The principal amount of
outstanding loans (including Nicolet Funding Corp.
Loans) and the face amount of outstanding Letters of
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Credit shall be deemed to be use of the Aggregate
Commitment to the extent that the Aggregate
Commitment exceeds the face amount of outstanding
Commercial Paper (but not including for this purpose
any Nicolet Funding Corp. Loans) from time to time,
and otherwise shall be deemed to be use of the
Demand Line.
(e) The Company may also obtain direct
loans from Nicolet Funding Corp. ("Nicolet Funding
Corp. Loans") from time to time. The aggregate
principal amount of such loans at any time
outstanding shall not exceed the lesser of (i)
$20,000,000 and (ii) the sum of (A) the amount by
which the Aggregate Commitment exceeds the aggregate
principal amount of Commercial Paper from time to
time outstanding, plus (B) the amount available to
be borrowed from time to time under the Demand Line
provided by Norwest Bank Wisconsin, National
Association. Such loans shall have maturities not
exceeding 100 days, and shall bear interest at rates
to be agreed upon by the Company and Nicolet Funding
Corp.
ARTICLE II
ADMINISTRATION OF CREDIT
2.1 Borrowing Procedure. Loans hereunder shall be
made at the principal banking office of the Agent in
Milwaukee, Wisconsin, on written or telephonic notice from the
Company to the Agent received not later than 10:30 a.m. on the
date of the proposed borrowing (subject to the notice
requirement of section 2.2(c)(2) if the Company wishes to
elect a LIBOR Pricing Option with respect to such loan), which
notice shall specify the date and the aggregate principal
amount of such borrowing. Each written request for a
borrowing hereunder shall be given in the form of Part 2 to
Exhibit 2.1 hereto; each telephonic request for a borrowing
hereunder shall be confirmed within three (3) Business Days of
the borrowing date by delivery of a written request in such
form. Upon its receipt of such notice from the Company, the
Agent shall promptly give notice to the other Banks, each of
which shall have its respective portion of the loans available
to the Agent in Milwaukee in immediately available funds not
later than 2:00 p.m. on the date of the borrowing. Out of the
funds received from the Banks for the making of the loans
hereunder, the Agent will make a loan to the Company in such
amount on behalf of such Banks. Notes and other required
documents delivered to the Agent for the account of each Bank
shall be promptly delivered to such Bank, or in accordance
with instructions received from it, together with copies of
such other documents received in connection with the borrowing
as such Bank shall request.
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2.2 Interest Calculation.
(a) Interest. The principal amount of the
indebtedness from time to time evidenced by the
Notes shall accrue and bear interest at a rate per
annum which shall at all times equal the Applicable
Rate (as defined in section 2.2(b)). To the extent
that any portion of the indebtedness evidenced by
the Notes bears interest at the Prime Rate (defined
below), the Company will pay such interest monthly
in arrears on the last day of each month. On the
last day of each LIBOR Interest Period or on any
earlier termination of any LIBOR Pricing Option, the
Company will pay the accrued and unpaid interest on
the indebtedness evidenced by the Notes which was
subject to the LIBOR Pricing Option which expired or
terminated on such date. On any stated or
accelerated maturity of the indebtedness evidenced
by the Notes all accrued and unpaid interest on such
indebtedness shall be forthwith due and payable,
including without limitation any accrued and unpaid
interest on such indebtedness which is subject to a
LIBOR Pricing Option. In addition, the Company
will, on demand, pay interest on any overdue
installments of principal and pay interest during
the continuance of any Event of Default both at a
rate per annum which is at all times equal to the
sum of (a) the Applicable Rate (or, if more than one
Applicable Rate is then in effect, the weighted
average of the Applicable Rates then in effect),
plus (b) 2% per annum.
(b) Applicable Rate. The term "Applicable
Rate" shall mean:
(1) With respect to any portion of the
indebtedness evidenced by the Notes which is at
the time subject to an effective LIBOR Pricing
Option, the applicable LIBOR Rate set forth in
section 2.2(c)(1)(D).
(2) With respect to any portion of the
indebtedness evidenced by the Notes which is
not at the time subject to an effective LIBOR
Pricing Option, the rate announced by Firstar
Bank Milwaukee, N.A. from time to time as its
prime rate (changing as and when such prime
rate changes) (the "Prime Rate").
(c) The LIBOR Pricing Options. The following
provisions shall apply to the LIBOR Pricing Options:
(1) Certain Definitions. For purposes of
this Agreement:
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(A) The term "Basic LIBOR Rate" as
applied to any LIBOR Interest Period shall
mean the per annum rate of interest
determined by the Agent (which shall be
applicable to all of the Banks) to be the
average (rounded up, if necessary, to the
nearest 1/16 of 1%) of the offered rates
for deposits in U.S. dollars for the
applicable LIBOR Interest Period which
appear on the Reuters Screen LIBO Page (or
such other page on which the appropriate
information may be displayed), on the
electronic communications terminals in the
Agent's money center as of 11:00 a.m.
(London time) on the day which is two
Business Days prior to the first day of
such LIBOR Interest Period ("Calculation
Date"), except as provided below. If
fewer than two offered rates appear for
the applicable LIBOR Interest Period or if
the appropriate screen is not accessible
as of such time, the term "Basic LIBOR
Rate" shall mean the per annum rate of
interest determined by the Agent (but
which shall be applicable to all of the
Banks) to be the average (rounded up, if
necessary, to the nearest 1/16 of 1%) of
the rates at which deposits in U.S.
dollars are offered to the Agent by four
major banks in the London interbank
market, as selected by the Agent
("Reference Banks"), at approximately 11
a.m., London time, on the Calculation Date
for the applicable LIBOR Interest Period
and in an amount equal to the principal
amount of the loans subject to the
applicable LIBOR Pricing Option. The
Agent will request the principal London
office of each of the Reference Banks to
provide a quotation of its rate. If at
least two such quotations are provided,
the applicable rate will be the mean of
the quotations. If fewer than two
quotations are provided as requested, the
applicable rate will be the mean of the
rates quoted by major banks in New York
City, selected by the Agent, at
approximately 11 a.m., New York City time,
on the Calculation Date for loans in U.S.
dollars to leading European banks for the
applicable LIBOR Interest Period and in an
amount equal to the principal amount of
the loans subject to the applicable LIBOR
Pricing Option.
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(B) The term "LIBOR Interest Period"
shall mean any period, selected as
provided below in this section 2.2(c) of
one, two or three months, each commencing
on any Business Day. Such LIBOR Interest
Period shall end on the day in the
succeeding calendar month which
corresponds numerically to the beginning
day of such LIBOR Interest Period,
provided, however, that if there is no
such numerically corresponding day in such
succeeding month, such LIBOR Interest
Period shall end on the last Business Day
of such succeeding month. If any LIBOR
Interest Period so selected would
otherwise end on a date which is not a
Business Day, such LIBOR Interest Period
shall instead end on the immediately
succeeding Business Day, provided,
however, that if said next succeeding
Business Day falls in a new month, such
LIBOR Interest Period shall end on the
immediately preceding Business Day.
(C) The term "LIBOR Pricing Options"
shall mean the options granted pursuant to
this section 2.2(c) to have the interest
on all or any portion of the principal
amount of indebtedness evidenced by the
Notes computed with reference to a LIBOR
Rate.
(D) The term "LIBOR Rate" for any
LIBOR Interest Period shall mean a rate
per annum equal to the sum of (i) the
quotient of (A) the Basic LIBOR Rate
applicable to that LIBOR Interest Period
divided by (B) one minus the LIBOR Reserve
Requirement (expressed as a decimal)
applicable to that LIBOR Interest Period,
plus (ii) five-eighths of one percent
(5/8%). The LIBOR Rate shall be rounded,
if necessary, to the next higher 1/16 of
1%.
(E) The term "LIBOR Reserve
Requirement" shall mean, with respect to
each LIBOR Interest Period, the stated
rate of all reserve requirements
(including all basic, supplemental,
marginal and other reserves and taking
into account any transitional adjustments
or other scheduled changes in reserve
requirements during such LIBOR Interest
Period) that is specified on the first day
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of such LIBOR Interest Period by the Board
of Governors of the Federal Reserve System
for determining the maximum reserve
requirement with respect to eurocurrency
funding (currently referred to as
"Eurocurrency liabilities" in Regulation D
of such Board of Governors) applicable to
the Agent.
(F) 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 in any case has general
application to banks of the class of which
any Bank is a member and which affects the
treatment of any loans of such Bank, all
as set forth below.
(2) Election of LIBOR Pricing Options.
Subject to all the terms and conditions hereof,
the Company may, by notice to the Agent
received not later than 10:30 a.m. (Milwaukee
time) on the day which is three Business Days
prior to the first day of the LIBOR Interest
Period selected in such notice, elect to have
all or such portion of the principal amount of
indebtedness then evidenced (or to be evidenced
at the commencement of such LIBOR Interest
Period) by the Notes as the Company may specify
in such notice (in the minimum amount of
$1,000,000 or any multiple of $100,000 in
excess of such amount) accrue and bear daily
interest during the LIBOR Interest Period so
selected at a per annum rate equal to the LIBOR
Rate for such LIBOR Interest Period; provided,
however, that no such election shall become
effective if the Agent determines (which
determination shall be binding and conclusive
on all parties) that (i) by reason of
circumstances affecting the London interbank
market adequate and reasonable means do not
exist for ascertaining the applicable LIBOR
Rate; (ii) the LIBOR Rate does not accurately
reflect the cost to the Banks of making or
maintaining LIBOR-based loans in general; or
(iii) any Default or Event of Default has
occurred and is continuing. Each notice of
election of a LIBOR Pricing Option shall be
irrevocable.
(d) Special Provisions.
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(1) Increased Costs. If any Regulatory
Change,
(A) shall subject any Bank to any
tax, duty or other charge with respect to
any of its loans, Letters of Credit or
participations therein, or Reimbursement
Obligations owed to it hereunder, or shall
change the basis of taxation of payments
to any Bank of the principal of or
interest on its loans hereunder or
Reimbursement Obligations owed to it, or
any other amounts due under this Agreement
in respect of such loans or Reimbursement
Obligations, or its obligation to make
loans hereunder or issue Letters of Credit
or participate therein (except for changes
in the rate of tax on the overall net
income of such Bank);
(B) shall impose, modify or make
applicable any reserve (including, without
limitation, any reserve imposed by the
Board of Governors of the Federal Reserve
System, but excluding any reserve included
in the determination of the LIBOR Rate),
special deposit or similar requirement
against assets of, deposits with or for
the account of, or credit extended by, any
Bank; or
(C) shall impose on any Bank any
other condition affecting its loans,
Letters of Credit or participations
therein, or any Reimbursement Obligation
owed to it hereunder; and the result of
any of the foregoing is to increase the
cost to (or in the case of Regulation D or
any other analogous law, rule or
regulation, to impose a cost on) such Bank
of making or maintaining any loans,
issuing or maintaining any Letter of
Credit, or participating therein, or to
reduce the amount of any sum received or
receivable by such Bank under this
Agreement and any document or instrument
related hereto, then after 30 days' notice
from such Bank (which notice shall be sent
to the Agent and the Company and shall be
accompanied by a statement setting forth
in reasonable detail the basis of such
increased cost or other effect on the
loans, Letters of Credit or Reimbursement
Obligations), the Company shall pay
directly to such Bank, on demand, such
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additional amount or amounts as will
compensate such Bank for such increased
cost or such reduction incurred on or
after the date of the giving of such
notice to the Agent and the Company.
Each of the Banks represents to the
Company that, as of the date hereof, it is
not aware of any fact or circumstance that
would give rise to any increased cost
under this section 2.2(d)(1). Each Bank
further agrees that, for purposes of this
section 2.2(d)(1), it will not treat the
Company in a manner different from its
other commercial loan customers having
similar loan relationships with the Bank.
(2) Changes in Law Rendering Certain
Loans Unlawful. In the event that any
Regulatory Change should make it (or, in the
good faith judgment of a Bank, should raise
substantial questions as to whether it is)
unlawful for a Bank to make, maintain or fund a
loan subject to a LIBOR Rate, then (i) such
Bank shall promptly notify each of the other
parties hereto, (ii) the obligation of all
Banks to make such loan shall, upon the
effectiveness of such event, be suspended for
the duration of such unlawfulness, and (iii) to
the extent that it is unlawful for such Bank to
maintain an outstanding loan subject to a LIBOR
Rate, such loan shall thereafter bear interest
at the Prime Rate or such other lower rate as
may be agreed upon by the Company and the Bank.
(3) Funding Losses. The Company hereby
agrees that upon demand by any Bank (which
demand shall be sent to the Agent and the
Company and shall be accompanied by a statement
setting forth in reasonable detail the basis
for the calculations of the amount being
claimed) the Company will indemnify such Bank
against any net loss or expense which such Bank
may sustain or incur (including, without
limitation, any net loss or expense incurred by
reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank
to fund or maintain loans hereunder), as
reasonably determined by such Bank, as a result
of (i) any payment or prepayment of any loan
subject to a LIBOR Rate of such Bank on a date
other than the last day of a LIBOR Interest
Period for such loan whether or not required by
any other provision of this Agreement, or (ii)
any failure of the Company to borrow any loans
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on a date specified therefor in a notice of
borrowing pursuant to this Agreement.
(4) Discretion of Banks as to Manner of
Funding. Notwithstanding any provision of this
Agreement to the contrary, each Bank shall be
entitled to fund and maintain its funding of
all or any part of its loans hereunder in any
manner it sees fit.
(5) Capital Adequacy. If any Regulatory
Change affects the treatment of any loan,
Letter of Credit or participation therein of a
Bank as an asset or other item included for the
purpose of calculating the appropriate amount
of capital to be maintained by such Bank or any
corporation controlling such Bank and has the
effect of reducing the rate of return on such
Bank's or such corporation's capital as a
consequence of the obligations of such Bank
hereunder to a level below that which such Bank
or such corporation could have achieved but for
such Regulatory Change (taking into account
such Bank's or such corporation's policies with
respect to capital adequacy) by an amount
deemed in good faith by such Bank to be
material, then after 30 days' notice from such
Bank to the Company and the Agent of such
Regulatory Change, the Company shall pay to
such Bank, on demand, such additional amount or
amounts as will compensate such Bank or such
corporation, as the case may be, for such
reduction incurred on or after the date of the
giving of such notice to the Agent and the
Company. Such Bank shall submit, to the Agent
and the Company, a statement as to the amount
of such compensation, prepared in good faith
and in reasonable detail. Each of the Banks
represents to the Company that, as of the date
hereof, it is not aware of any fact or
circumstance that would give rise to a claim
for compensation under this section 2.2(d)(5).
(6) Conclusiveness of Statements;
Survival of Provisions. Determinations and
statements of any Bank pursuant to sections
2.2(d)(1), (2), (3) and (5) shall be rebuttably
presumptive evidence of the correctness of the
determinations and statements and shall be
conclusive absent manifest error if the Company
fails to deliver written notice to the Agent
within 30 days of (i) the date of mailing of
such statement or (ii) the giving of notice of
such determination if no such statement is
mailed. The provisions of section 2.2(d)(1),
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(3) and (5) shall survive the obligation of the
Banks to extend credit under this Agreement and
the repayment of the loans and Reimbursement
Obligations.
2.3 Computations; Non-Business Days. All fees, and
all interest payable on the Notes, shall be computed for the
actual number of days elapsed using a daily rate determined by
dividing the annual rate by 360. Whenever any payment to be
made hereunder or under any Note shall be stated to be due on
a non-Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time shall be
included in the computation of interest under the Notes, or
fees payable hereunder, as the case may be.
2.4 Application of Payments.
(a) All payments of principal, interest and
fees under this Agreement and the Notes shall be
made to the Agent in immediately available funds for
the ratable account of the Banks and the holders of
the Notes then outstanding, as appropriate, in
respect of amounts then due hereunder. The Agent
shall promptly distribute to each such Bank or
holder pro rata the amount of principal, interest or
fees received by the Agent for the account of such
holder. Any payment to the Agent for the account of
a Bank or a holder of a Note under this Agreement
shall constitute a payment by the Company to such
Bank or holder of the amount so paid to the Agent,
and any Notes or portions thereof so paid shall not
be considered outstanding for any purpose after the
date of such payment to the Agent.
(b) All payments received by the Agent under
this Agreement from any source shall be applied to
the obligations of the Company hereunder in the
following order of priority:
(i) First, to the payment of all
unreimbursed fees and expenses due hereunder;
(ii) Second, to the repayment of all
outstanding loans under the Demand Line and all
accrued interest thereon;
(iii) Third, to the payment of all
outstanding loans under the Aggregate
Commitment, to the extent then due and payable,
and all accrued interest thereon;
(iv) Fourth, to secure reimbursement of
the outstanding face amount of all Letters of
Credit issued against the Demand Line;
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(v) Fifth, to secure reimbursement of the
outstanding face amount of all Letters of
Credit issued against the Aggregate Commitment;
and
(vi) Sixth, to secure payment at maturity
of all outstanding Commercial Paper, including
for this purpose all Nicolet Funding Corp.
Loans.
2.5 Pro Rata Treatment. All payments or
prepayments of principal, interest or fees shall be made pro
rata in accordance with the amounts of the Notes then due. In
the event that any Bank shall receive from the Company or any
other source (other than the sale of a participation to
another commercial lender pursuant to section 10.10) any
payment of, on account of, or for any obligation of the
Company hereunder or under the Notes (whether pursuant to the
exercise of any right of set off, banker's lien, realization
upon any security held for or appropriated to such obligation,
counterclaim or otherwise) other than as above provided, then
such Bank shall immediately purchase, without recourse and for
cash, an interest in the obligations of the same nature held
by the other Banks so that each Bank shall thereafter have a
percentage interest in all of such obligations equal to the
percentage interest which such Bank held in the Notes
outstanding immediately before such payment; provided, that if
any payment so received shall be recovered in whole or in part
from such purchasing Bank, the purchase shall be rescinded and
the purchase price restored to the extent of such recovery,
but without interest. The Company specifically acknowledges
and consents to the preceding sentence.
2.6 Set Off. In the event that the unpaid
principal balance of the Notes or any other amount becomes
immediately due and payable pursuant to section 7.2, each Bank
may offset and apply any monies, balances, accounts and
deposits (including certificates of deposit) of the Company
then at such Bank toward the payment of the Note or Notes held
by such Bank or other amounts owed to it hereunder. Promptly
upon its charging any account of the Company pursuant to this
section, the Bank shall give the Company notice thereof,
provided that failure to give such notice shall not affect the
obligations of the Company hereunder.
ARTICLE III
CONDITIONS OF BORROWING
Without limiting any of the other terms of this
Agreement, none of the Banks shall be required to make any
loan to the Company hereunder or issue any Letter of Credit
unless each of the following conditions has been satisfied:
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3.1 Representations. The representations and
warranties contained in Article IV hereof continue to be true
and correct on the date of such loan and no Default or Event
of Default hereunder shall have occurred and be continuing.
3.2 Insurance Certificate. Prior to the initial
loan the Banks shall have received satisfactory evidence that
the Company maintains hazard and liability insurance coverage
reasonably satisfactory to the Banks.
3.3 Form U-1. Prior to the initial loan the
Company shall have executed and delivered to the Banks a
Federal Reserve Form U-1 provided for in Regulation U of the
Board of Governors of the Federal Reserve System, and the
statements made therein shall be such, in the reasonable
opinion of the Banks, as to permit the transactions
contemplated hereby without violation of Regulation U.
3.4 Counsel Opinion. Prior to the initial loan the
Banks shall have received from their special counsel and from
Company's counsel, satisfactory opinions as to such matters
relating to the Company and its Subsidiaries, the validity and
enforceability of this Agreement, the loans to be made
hereunder and the other documents required by this Article III
as the Banks shall reasonably require. The Company shall
execute and/or deliver to the Banks or their respective
counsel such documents concerning its corporate status and the
authorization of such transactions as may be requested.
3.5 Proceedings Satisfactory. All proceedings
taken in connection with the transactions contemplated by this
Agreement, and all instruments, authorizations and other
documents applicable thereto, shall be satisfactory in form
and substance to the Banks and their respective counsel.
3.6 Violation of Environmental Laws. In the
reasonable opinion of the Banks there shall not exist any
uncorrected violation by the Company or any Subsidiary of an
Environmental Law or any condition which requires, or may
require, a cleanup, removal or other remedial action by the
Company or any Subsidiary under any Environmental Laws costing
$2,500,000 or more in the aggregate.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to make the loans as
provided herein, the Company represents and warrants to the
Banks as follows, except as set forth in a letter (the
"Information and Exceptions Letter") delivered to the Banks
not later than three (3) Business Days prior to the date of
this Agreement.
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4.1 Organization. The Company and each of its
Subsidiaries is a corporation duly organized and existing in
good standing under the laws of the jurisdiction under which
it was incorporated, and has all requisite power and
authority, corporate or otherwise, to conduct its business and
to own its properties. Set forth in the Information and
Exceptions Letter is a complete and accurate list of all of
its Subsidiaries, showing as of the date hereof (as to each
such Subsidiary) the jurisdiction of its incorporation, the
percentage of the outstanding shares of each class of capital
stock owned (directly or indirectly) by the Company and the
number of shares covered by all outstanding options, warrants,
rights of conversion or purchase, and similar rights. All of
the outstanding stock of all of the Subsidiaries has been
legally and validly issued, is fully paid and non-assessable
except as provided by section 180.0622(2)(b) of the Wisconsin
Business Corporation Law and its predecessor statute, as
judicially interpreted, and is owned by the Company or one or
more other Subsidiaries free and clear of all pledges, liens,
security interests and other charges or encumbrances. The
Company is duly licensed or qualified to do business in all
jurisdictions in which such qualification is required, and
failure to so qualify could have a material adverse effect on
the property, financial condition or business operations of
the Company.
4.2 Authority. The execution, delivery and
performance of this Agreement, the Notes and the documents
required by Article III (the "Collateral Documents") are
within the corporate powers of the Company, have been duly
authorized by all necessary corporate action and do not and
will not (i) require any consent or approval of the
stockholders of the Company, (ii) violate any provision of the
articles of incorporation or by-laws of the Company or of any
law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having
applicability to the Company or any Subsidiary; (iii) require
the consent or approval of, or filing or registration with,
any governmental body, agency or authority; or (iv) result in
a breach of or constitute a default under, or result in the
imposition of any lien, charge or encumbrance upon any
property of the Company or any Subsidiary pursuant to, any
indenture or other agreement or instrument under which the
Company or any Subsidiary is a party or by which it or its
properties may be bound or affected. This Agreement
constitutes, and each of the Notes and each of the Collateral
Documents when executed and delivered hereunder will
constitute, legal, valid and binding obligations of the
Company or other signatory enforceable in accordance with its
terms, except as such enforceability may be limited by
bankruptcy or similar laws affecting the enforceability of
creditors' rights generally.
4.3 Investment Company Act of 1940. Neither the
Company nor any Subsidiary is an "investment company" or a
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company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
4.4 Employee Retirement Income Security Act. All
Plans are in compliance in all material respects with the
applicable provisions of ERISA. Neither the Company nor any
Subsidiary has incurred any material "accumulated funding
deficiency" within the meaning of section 302(a)(2) of ERISA
in connection with any Plan. There has been no Reportable
Event for any Plan, the occurrence of which would have a
materially adverse effect on the Company or any Subsidiary,
nor has the Company or any Subsidiary incurred any material
liability to the Pension Benefit Guaranty Corporation under
section 4062 of ERISA in connection with any Plan. The
Unfunded Liabilities of all Plans do not in the aggregate
exceed $2,500,000.
4.5 Financial Statements. The consolidated and
consolidating balance sheets of the Company and its
Subsidiaries as of December 31, 1993, and the consolidated and
consolidating statements of profit and loss and surplus of the
Company and its Subsidiaries for the year ended on that date,
as prepared by the Company and certified by Ernst & Young and
heretofore furnished to the Banks, present fairly the
financial condition of the Company and such Subsidiaries as of
that date, and the results of their operations for the fiscal
year ended on that date. Since December 31, 1993, there has
been no material adverse change in the property, financial
condition or business operations of the Company or any
Subsidiary.
4.6 Liens. The Company and each Subsidiary has
good and marketable title to all of its assets, real and
personal, free and clear of all liens, security interests,
mortgages and encumbrances of any kind, except Permitted
Liens. To the best of the Company's knowledge and belief, all
owned and leased buildings and equipment of the Company and
its Subsidiaries are in good condition, repair and working
order in all material respects and conform in all material
respects to all applicable laws, regulations and ordinances.
4.7 Contingent Liabilities. Neither the Company
nor any Subsidiary has any guarantees or other contingent
liabilities outstanding (including, without limitation,
liabilities by way of agreement, contingent or otherwise, to
purchase, to provide funds for payment, to supply funds to or
otherwise invest in the debtor or otherwise to assure the
creditor against loss), except those permitted by section 5.7
hereof.
4.8 Taxes. Except as expressly disclosed in the
financial statements referred to in section 4.5 above, neither
the Company nor any Subsidiary has any material outstanding
unpaid tax liability (except for taxes which are currently
accruing from current operations and ownership of property,
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which are not delinquent), and no tax deficiencies have been
proposed or assessed against the Company or any Subsidiary.
The most recent completed audit of the Company's federal
income tax returns was for the Company's income tax year
ending December 31, 1989, and all taxes shown by such returns
(together with any adjustments arising out of such audit, if
any) have been paid.
4.9 Absence of Litigation. Neither the Company nor
any Subsidiary is a party to any litigation or administrative
proceeding, nor so far as is known by the Company is any
litigation or administrative proceeding threatened against it
or any Subsidiary, which in either case (i) relates to the
execution, delivery or performance of this Agreement, the
Notes, or any of the Collateral Documents, (ii) could, if
adversely determined, cause any material adverse change in the
property, financial condition or the conduct of the business
of the Company and its Subsidiaries taken as a whole, (iii)
asserts or alleges the Company or any Subsidiary violated
Environmental Laws, (iv) asserts or alleges that Company or
any Subsidiary is required to cleanup, remove, or take
remedial or other response action due to the disposal,
depositing, discharge, leaking or other release of any
hazardous substances or materials, or (v) asserts or alleges
that Company or any Subsidiary is required to pay all or a
portion of the cost of any past, present or future cleanup,
removal or remedial or other response action which arises out
of or is related to the disposal, depositing, discharge,
leaking or other release of any hazardous substances or
materials by Company or any Subsidiary, except with respect to
violations, cleanups, removals and other remedial and response
actions referred to clauses (iii), (iv) and (v) above which
will cost the Company and its Subsidiaries less than
$2,500,000 in the aggregate.
4.10 Absence of Default. No event has occurred
which either of itself or with the lapse of time or the giving
of notice or both, would give any creditor of the Company or
any Subsidiary the right to accelerate the maturity of any
indebtedness of the Company or any Subsidiary for borrowed
money. Neither the Company nor any Subsidiary is in default
under any other lease, agreement or instrument, or any law,
rule, regulation, order, writ, injunction, decree,
determination or award, non-compliance with which could
materially adversely affect its property, financial condition
or business operations.
4.11 No Burdensome Agreements. Neither the Company
nor any Subsidiary is a party to any agreement, instrument or
undertaking, or subject to any other restriction, (i) which
materially adversely affects the property, financial condition
or business operations of the Company and its Subsidiaries
taken as a whole, or (ii) under or pursuant to which the
Company or any Subsidiary is or will be required to place (or
under which any other person may place) a lien upon any of its
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properties securing indebtedness either upon demand or upon
the happening of a condition, with or without such demand,
other than Permitted Liens.
4.12 Trademarks, etc. The Company and its
Subsidiaries possess adequate trademarks, trade names,
copyrights, patents, permits, service marks and licenses, or
rights thereto, for the present and planned future conduct of
their respective businesses substantially as now conducted,
without any known conflict with the rights of others which
might result in a material adverse effect on the Company and
its Subsidiaries taken as a whole.
4.13 Partnerships; Joint Ventures. Neither the
Company nor any Subsidiary is a member of any partnership or
joint venture except as permitted under section 5.4.
4.14 Full Disclosure. No information, exhibit or
report furnished by the Company or any Subsidiary to any Bank
in connection with the negotiation or execution of this
Agreement contained any material misstatement of fact as of
the date when made or omitted to state a material fact or any
fact necessary to make the statements contained therein not
misleading as of the date when made.
4.15 Fiscal Year. The fiscal year of the Company
and each Subsidiary ends on December 31 of each year.
4.16 Environmental Conditions. To the Company's
knowledge after reasonable investigation, there are no
conditions existing currently or likely to exist during the
term of this Agreement which would subject the Company or any
Subsidiary to damages, penalties, injunctive relief or cleanup
costs under any Environmental Laws or which require or are
likely to require cleanup, removal, remedial action or other
response pursuant to Environmental Laws by the Company or any
Subsidiary, except for such matters which will cost the
Company and its Subsidiaries less than $2,500,000 in the
aggregate.
4.17 Environmental Judgments, Decrees and Orders.
Neither the Company nor any Subsidiary is subject to any
judgment, decree, order or citation related to or arising out
of Environmental Laws and neither the Company nor any
Subsidiary has been named or listed as a potentially
responsible party by any governmental body or agency in a
matter arising under any Environmental Laws, except for such
matters which will cost the Company and its Subsidiaries less
than $2,500,000 in the aggregate.
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ARTICLE V
NEGATIVE COVENANTS
While any part of the credit granted to the Company
is available and while any part of the principal of or
interest on any Note remains unpaid or any Letter of Credit
Obligation remains outstanding, the Company shall not do any
of the following, or permit any Subsidiary to do any of the
following, without the prior written consent of the Required
Banks:
5.1 Restriction of Indebtedness. Create, incur,
assume or have outstanding any indebtedness for borrowed money
or the deferred purchase price of any asset (including
obligations under Capitalized Leases), except:
(a) the Notes issued under this Agreement;
(b) outstanding indebtedness in respect of
industrial revenue bond financing shown on the
financial statements referred to in section 4.5
above, provided that such indebtedness shall not be
renewed, extended or increased;
(c) additional long-term indebtedness incurred
pursuant to an offering of long-term notes, bonds or
similar obligations of the Company; provided that,
simultaneously with the closing of such debt
offering, the Aggregate Commitment shall be reduced
by an amount equal to the net proceeds to the
Company of such long-term indebtedness;
(d) indebtedness described in section
10.1(p)(iv), provided such indebtedness does not
exceed an aggregate of $5,000,000 outstanding at any
one time;
(e) Commercial Paper in an aggregate face
amount of not more than the amount permitted by
section 1.9(a);
(f) Nicolet Funding Corp. Loans in aggregate
principal amount of not more than the amount
permitted by section 1.9(e);
(g) unsecured indebtedness which is
subordinated to the prior payment of the Company's
obligations under this Agreement in a manner
satisfactory to the Banks;
(h) indebtedness in respect of Capitalized Leases,
provided that the aggregate lease payments thereunder do
not exceed $1,000,000 in any fiscal year of the Company;
and
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(i) other indebtedness not exceeding $5,000,000 in
aggregate principal amount at any time outstanding.
5.2 Restriction on Liens. Create or permit to be
created or allow to exist any mortgage, pledge, encumbrance or
other lien upon or security interest in any property or asset
now owned or hereafter acquired by the Company or any
Subsidiary, except Permitted Liens.
5.3 Sale and Leaseback. Enter into any agreement
providing for the leasing by the Company or a Subsidiary of
property which has been or is to be sold or transferred by the
Company or a Subsidiary to the lessor thereof, or which is
substantially similar in purpose to property so sold or
transferred, except for agreements relating to sales of
property not exceeding $5,000,000 (in gross sales proceeds to
the Company) in the aggregate.
5.4 Acquisitions and Investments. Acquire any
other business or make any loan, advance or extension of
credit to, or investment in, any other person, corporation or
other entity (including without limitation Subsidiaries,
partnerships and joint ventures), including investments
acquired in exchange for stock or other securities or
obligations of any nature of the Company or any Subsidiary,
except:
(a) investments in (i) bank repurchase
agreements; (ii) savings accounts or certificates of
deposit in a financial institution of recognized
standing; (iii) obligations issued or fully
guaranteed by the United States; and (iv) prime
commercial paper maturing within 90 days of the date
of acquisition by the Company or a Subsidiary;
(b) loans and advances made to employees and
agents in the ordinary course of business, such as
travel and entertainment advances and similar items;
(c) investments in the Company by a
Subsidiary;
(d) credit extended to customers in the
ordinary course of business;
(e) other investments outstanding on December
31, 1993, and shown on the financial statements
referred to in section 4.5 above, provided that such
investments shall not be increased; and
(f) additional acquisitions and investments in
present and future Subsidiaries and joint ventures,
provided that all such acquisitions and investments
(valued at original cost without regard to subsequent
increases or decreases in the value thereof) shall not
-24-
exceed (i) $15,000,000 in the aggregate and (ii)
$5,000,000 with respect to any single entity.
5.5 Liquidation; Merger; Disposition of Assets.
Liquidate or dissolve; or merge with or into or consolidate
with or into any other corporation or entity except a merger
of a wholly-owned Subsidiary into the Company or another
wholly-owned Subsidiary; or sell, lease, transfer or otherwise
dispose of all or any substantial part of its property, assets
or business (other than sales made in the ordinary course of
business), or any stock of any Subsidiary.
5.6 Accounts Receivable. Discount or sell with
recourse, or sell for less than the face amount thereof, any
of its notes or accounts receivable, whether now owned or
hereafter acquired.
5.7 Contingent Liabilities. Guarantee or become a
surety or otherwise contingently liable (including, without
limitation, liable by way of agreement, contingent or
otherwise, to purchase, to provide funds for payment, to
supply funds to or otherwise invest in the debtor or otherwise
to assure the creditor against loss) for any obligations of
others, except (i) pursuant to the deposit and collection of
checks and similar items in the ordinary course of business,
(ii) in connection with letters of credit issued for the
account of the Company from time to time by Republic National
Bank of New York, provided that (A) such letters of credit
shall not exceed $10,000,000 in aggregate face amount at any
time outstanding and (B) none of such letters of credit shall
remain outstanding on or after June 1, 1995, and (iii) other
contingent liabilities in respect of third party obligations
not exceeding an aggregate of $5,000,000 outstanding at any
one time.
5.8 Affiliates. Suffer or permit any transaction
with any Affiliate, except on terms not less favorable to the
Company or Subsidiary than would be usual and customary in
similar transactions with non-affiliated persons.
ARTICLE VI
AFFIRMATIVE COVENANTS
While any part of the credit granted to the Company
is available and while any part of the principal of or
interest on any Note remains unpaid or any Letter of Credit
Obligation is outstanding, and unless waived in writing by the
Required Banks, the Company shall:
6.1 Financial Status. Maintain:
(a) At all times a Consolidated Current Ratio
of at least 2.00 to 1.00;
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(b) A ratio of Consolidated Total Liabilities
to Consolidated Tangible Net Worth of (i) not more
than 1.00 to 1.00 at all times prior to January 1,
1996 and (ii) not more than 0.85 to 1.00 at all
times after December 31, 1995; and
(c) At the end of each fiscal quarter a
Consolidated Fixed Charge Coverage Ratio for the
four consecutive fiscal quarters then ended of at
least 3.00 to 1.00.
6.2 Insurance. Maintain insurance in such amounts
and against such risks as is customary by companies engaged in
the same or similar businesses and similarly situated.
6.3 Corporate Existence; Obligations. Do, and
cause each Subsidiary to do, all things necessary to: (i)
maintain its corporate existence (except for mergers permitted
by section 5.5) and all rights and franchises necessary or
desirable for the conduct of its business; (ii) comply in all
material respects with all applicable laws, rules, regulations
and ordinances, and all restrictions imposed by governmental
authorities, including those relating to environmental
standards and controls; and (iii) pay, before the same become
delinquent and before penalties accrue thereon, all taxes,
assessments and other governmental charges against it or its
property, and all of its other liabilities, except to the
extent and so long as the same are being contested in good
faith by appropriate proceedings in such manner as not to
cause any material adverse effect upon its property, financial
condition or business operations, with adequate reserves
provided for such payments.
6.4 Business Activities. Continue to carry on its
business activities in substantially the manner such
activities are conducted on the date of this Agreement and not
make any material change in the nature of its business.
6.5 Properties. Keep and cause each Subsidiary to
keep its properties (whether owned or leased) in good
condition, repair and working order, ordinary wear and tear
and obsolescence excepted, and make or cause to be made from
time to time all necessary repairs thereto (including external
or structural repairs) and renewals and replacements thereof
consistent with the exercise of its reasonable business
judgment.
6.6 Accounting Records; Reports. Maintain and
cause each Subsidiary to maintain a standard and modern system
for accounting in accordance with generally accepted
principles of accounting consistently applied throughout all
accounting periods and consistent with those applied in the
preparation of the financial statements referred to in section
4.5; and furnish to the Agent such information respecting the
business, assets and financial condition of the Company and
-26-
its Subsidiaries as any Bank may reasonably request and,
without request, furnish to the Agent:
(a) Within 45 days after the end of each of
the first three quarters of each fiscal year of the
Company (i) consolidated and consolidating balance
sheets of the Company and all of its Subsidiaries as
of the close of such quarter and of the comparable
quarter in the preceding fiscal year; and (ii)
consolidated and consolidating statements of income
and surplus of the Company and all of its
Subsidiaries for such quarter and for that part of
the fiscal year ending with such quarter and for the
corresponding periods of the preceding fiscal year;
all in reasonable detail and certified as true and
correct (subject to audit and normal year-end
adjustments) by the chief financial officer of the
Company; and
(b) As soon as available, and in any event
within 90 days after the close of each fiscal year
of the Company, a copy of the audit report for such
year and accompanying consolidated and consolidating
financial statements of the Company and its
Subsidiaries, as prepared by independent public
accountants of recognized standing selected by the
Company and reasonably satisfactory to the Required
Banks, which audit report shall be accompanied by an
opinion of such accountants, in form reasonably
satisfactory to the Required Banks, to the effect
that the same fairly present the financial condition
of the Company and its Subsidiaries and the results
of its and their operations as of the relevant dates
thereof; and
(c) As soon as available, copies of all
reports or materials submitted or distributed to
shareholders of the Company or filed with the
Securities and Exchange Commission or other
governmental agency having regulatory authority over
the Company or any Subsidiary or with any national
securities exchange; and
(d) Promptly, and in any event within 10 days
after an officer of the Company has actual knowledge
thereof a statement of the chief financial officer
of the Company describing: (i) any Default or Event
of Default hereunder, or any other event which,
either of itself or with the lapse of time or the
giving of notice or both, would constitute a default
under any other material agreement to which the
Company or any Subsidiary is a party, together with
a statement of the actions which the Company
proposes to take with respect thereto; (ii) any
pending or threatened litigation or administrative
-27-
proceeding of the type described in section 4.9; and
(iii) any fact or circumstance which is materially
adverse to the property, financial condition or
business operations of the Company and its
Subsidiaries taken as a whole; and
(e)(i) Promptly, and in any event within 30
days, after an officer of the Company acquires
actual knowledge that any Reportable Event with
respect to any Plan has occurred, a statement of the
chief financial officer of the Company setting forth
details as to such Reportable Event and the action
which the Company proposes to take with respect
thereto, together with a copy of any notice of such
Reportable Event given to the Pension Benefit
Guaranty Corporation if a copy of such notice is
available to the Company, (ii) promptly after the
filing thereof with the Internal Revenue Service,
copies of each annual report with respect to each
Plan administered by the Company and (iii) promptly
after receipt thereof, a copy of any notice (other
than a notice of general application) the Company,
any Subsidiary or any member of the Controlled Group
may receive from the Pension Benefit Guaranty
Corporation or the Internal Revenue Service with
respect to any Plan administered by the Company.
The financial statements referred to in (a) and (b)
above shall be accompanied by a certificate by the chief
financial officer of the Company demonstrating compliance with
the covenants in section 6.1 during the relevant period and
stating that, as of the close of the last period covered in
such financial statements, no condition or event had occurred
which constitutes a Default hereunder or which, after notice
or lapse of time or both, would constitute a Default hereunder
(or if there was such a condition or event, specifying the
same). The audit report referred to in (b) above shall be
accompanied by a certificate by the accountants who prepared
the audit report, as of the date of such audit report, stating
that in the course of their audit, nothing has come to their
attention suggesting that a condition or event has occurred
which constitutes a Default hereunder or which, after notice
or lapse of time or both, would constitute a Default hereunder
(or if there was such a condition or event, specifying the
same); but such accountants shall not be liable for any
failure to obtain knowledge of any such condition or event.
The Agent shall promptly furnish to each of the Banks (i)
copies of the certificates delivered to the Agent pursuant to
this paragraph, and (ii) copies of any statements delivered to
the Agent pursuant to section 6.6(d) or (e) above.
6.7 Inspection of Records. Permit representatives
of the Banks at their own expense to visit and inspect any of
the properties and examine any of the books and records of the
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Company and its Subsidiaries at any reasonable time and as
often as may be reasonably desired.
6.8 Compliance with Environmental Laws. Timely
comply in all material respects, and cause each Subsidiary to
comply in all material respects, with all applicable
Environmental Laws.
6.9 Environmental Audit. Permit, at its expense,
at the request of the Required Banks, an Environmental Audit
solely for the benefit of the Banks, to be conducted by the
Banks or an independent agent selected by the Banks, but only
in the event of a circumstance or condition of the nature
described in section 6.10 below which, in the reasonable
judgment of the Required Banks, will cost the Company
$2,500,000 or more in the aggregate. This provision shall not
relieve the Company or any Subsidiary from conducting its own
Environmental Audits or taking any other steps necessary to
comply with Environmental Laws.
6.10 Orders, Decrees and Other Documents. Provide
to the Agent, 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 any Subsidiary or a cleanup, removal, remedial
action, or other response by or on the part of the Company or
any Subsidiary under Environmental Laws or which seeks damages
or civil, criminal or punitive penalties from the Company or
any Subsidiary for an alleged violation of Environmental Laws;
provided, however, such documentation need not be delivered to
the Agent unless and until the circumstances or conditions
referred to therein will, individually or in the aggregate
with any other such matters, likely result in costs to the
Company and its Subsidiaries of $1,000,000 or more.
ARTICLE VII
DEFAULTS
7.1 Defaults. The occurrence of any one or more of
the following events shall constitute an "Event of Default":
(a) The Company shall fail to pay (i) any
interest due on any Revolving Credit Note, or any
other amount payable hereunder (other than a
principal payment on any Note or a Reimbursement
Obligation) by five days after the same becomes due;
or (ii) any principal amount due on any Revolving
Credit Note or any Reimbursement Obligation when
due;
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(b) The Company shall default in the
performance or observance of any agreement,
covenant, condition, provision or term contained in
Article V (other than section 5.8) or section 6.1 of
this Agreement;
(c) The Company shall default in the
performance or observance of any of the other
agreements, covenants, conditions, provisions or
terms in this Agreement or any Collateral Document
and such default continues for a period of thirty
days after written notice thereof is given to the
Company by any of the Banks;
(d) Any representation or warranty made by the
Company herein or any certificate delivered pursuant
hereto, or any financial statement delivered to any
Bank hereunder, shall prove to have been false in
any material respect as of the time when made or
given;
(e) The Company or any Subsidiary shall fail
to pay as and when due and payable (whether at
maturity, by acceleration or otherwise) all or any
part of the principal of or interest on any
indebtedness of or assumed by it (including without
limitation the Demand Notes), or of the rentals due
under any lease or sublease, or of any other
obligation for the payment of money, in each case
where such payments aggregate $1,000,000 or more,
and such default shall not be cured within the
period or periods of grace, if any, specified in the
instruments governing such obligations; or default
shall occur under any evidence of, or any indenture,
lease, sublease, agreement or other instrument
governing such obligations, and such default shall
continue for a period of time sufficient to permit
the acceleration of the maturity of any such
indebtedness or other obligation or the termination
of such lease or sublease, unless the Company or
such Subsidiary shall be contesting such default in
good faith by appropriate proceedings;
(f) A final judgment which, together with all
other outstanding final judgments against the
Company and its Subsidiaries, or any of them,
exceeds an aggregate of $100,000 shall be entered
against the Company or any Subsidiary and shall
remain outstanding and unsatisfied, unbonded,
unstayed or uninsured after 60 days from the date of
entry thereof;
(g) The Company or any Subsidiary shall: (i)
become insolvent; or (ii) be unable, or admit in
writing its inability to pay its debts as they
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mature; or (iii) make a general assignment for the
benefit of creditors or to an agent authorized to
liquidate any substantial amount of its property; or
(iv) become the subject of an "order for relief"
within the meaning of the United States Bankruptcy
Code; or (v) become the subject of a creditor's
petition for liquidation, reorganization or to
effect a plan or other arrangement with creditors;
or (vi) apply to a court for the appointment of a
custodian or receiver for any of its assets; or
(vii) have a custodian or receiver appointed for any
of its assets (with or without its consent); or
(viii) otherwise become the subject of any
insolvency proceedings or propose or enter into any
formal or informal composition or arrangement with
its creditors;
(h) This Agreement, any Note or any Collateral
Document shall, at any time after their respective
execution and delivery, and for any reason, cease to
be in full force and effect or be declared null and
void, or be revoked or terminated, or the validity
or enforceability thereof or hereof shall be
contested by the Company, or the Company shall deny
that it has any or further liability or obligation
thereunder or hereunder, as the case may be; or
(i) Any Reportable Event, which the Required
Banks determine in good faith to constitute grounds
for the termination of any Plan by the Pension
Benefit Guaranty Corporation or for the appointment
by the appropriate United States District Court of a
trustee to administer any Plan, shall have occurred,
or any Plan shall be terminated within the meaning
of Title IV of ERISA, or a trustee shall be
appointed by the appropriate United States District
Court to administer any Plan, or the Pension Benefit
Guaranty Corporation shall institute proceedings to
terminate any Plan or to appoint a trustee to
administer any Plan, and in case of any event
described in the preceding provisions of this
subsection (i) the Required Banks determine in good
faith that the aggregate amount of the Company's
liability to the Pension Benefit Guaranty
Corporation under ERISA shall exceed $1,000,000 and
such liability is not covered, for the benefit of
the Company, by insurance.
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7.2 Termination of Aggregate Commitment and
Acceleration of Obligations. Upon the occurrence of any Event
of Default:
(a) As to any Event of Default under section
7.1(a) and at any time thereafter, and in each case,
the Required Banks (or the Agent with the written
consent of the Required Banks) may, by written
notice to the Company, immediately terminate the
obligation of the Banks to make revolving credit
loans and issue Letters of Credit hereunder and
declare the unpaid principal balance of the
Revolving Credit Notes, together with all interest
accrued thereon, to be immediately due and payable;
and the unpaid principal balance of such Notes and
all unreimbursed amounts drawn on Letters of Credit,
together with all interest accrued thereon, shall
thereupon be due and payable without further notice
of any kind, all of which are hereby waived, and
notwithstanding anything to the contrary herein or
in the Notes contained;
(b) As to any Event of Default under section
7.1(g), the obligation of the Banks to make
revolving credit loans and issue Letters of Credit
hereunder shall immediately terminate and the unpaid
principal balance of all Revolving Credit Notes and
all unreimbursed amounts drawn on Letters of Credit,
together with all interest accrued thereon, shall
immediately and forthwith be due and payable, all
without presentment, demand, protest, or further
notice of any kind, all of which are hereby waived,
notwithstanding anything to the contrary herein or
in the Notes contained;
(c) As to any Event of Default other than an
Event of Default under section 7.1(a) or section
7.1(g) and at any time thereafter, and in each case,
the Required Banks, with the written consent of all
Banks that have acted as placement agent in the sale
of any Commercial Paper then outstanding (or the
Agent with the written consent of such Banks) may
take the actions and exercise the remedies provided
by this section 7.2.
(d) As to each Event of Default, subject to
the limitations set forth in section 7.2(c) above,
the Banks shall have all the remedies for default
provided by the Collateral Documents, as well as
applicable law.
(e) In the event that the unpaid principal
balance of the Revolving Credit Notes becomes
immediately due and payable pursuant to this section
7.2, the Company shall pay (i) to the appropriate
-32-
LOC Bank the sum of the largest drafts which could
then or thereafter be drawn under all outstanding
Letters of Credit, which sum the LOC Bank may hold
for the account of the Company, without interest,
for the purpose of paying any draft presented, with
the excess, if any, to be returned to the Company
upon termination or expiration of such Letters of
Credit, and (ii) to the Agent the aggregate face
amount of all Commercial Paper (including for this
purpose all Nicolet Funding Corp. Loans) then
outstanding, which amount may be held by the Agent,
without interest, to secure the payment in full of
all such Commercial Paper at maturity, with the
excess, if any, to be returned to the Company upon
payment in full of all such Commercial Paper.
ARTICLE VIII
DEMAND NOTES
8.1 Right of each Bank to Demand Payment. All
amounts outstanding under each of the Demand Notes are due ON
DEMAND by the holder thereof in its sole discretion; provided
that such holder shall give at least three Business Days'
prior written notice of its intention to make such demand to
the Company and the Agent. Notwithstanding the foregoing, the
unpaid principal balance of the Demand Notes, together with
all interest accrued thereon, shall automatically become
immediately due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby
waived, if an Event of Default under section 7.1(g) shall
occur. Notwithstanding reference to any Event of Default or
termination in this Agreement or any Collateral Document
(except for automatic acceleration provisions referred to
above), such provisions shall have no application to, or
otherwise restrict, each Bank's right to demand payment under
its Demand Note at any time.
8.2 Cash Collateral. If at any time when demand
for payment is made on any Demand Note, the aggregate
outstanding face amount of all Letters of Credit shall exceed
the Aggregate Commitment (net of all outstanding Commercial
Paper and Nicolet Funding Corp. Loans issued by the Company
thereunder), the Company shall immediately pay the amount of
such excess to the Agent, which amount (together with all
accrued interest thereon) may be held by the Agent in an
interest-bearing account as cash collateral for the purpose of
securing the repayment of any draft presented in respect of
outstanding Letters of Credit, with the excess, if any, to be
returned to the Company as and when such Letters of Credit
terminate or expire.
ARTICLE IX
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THE AGENT
9.1 Appointment and Powers. Each of the Banks
hereby appoints Firstar Bank Milwaukee, National Association
as Agent for the Banks hereunder, and authorizes the Agent to
take such action as Agent on its behalf and to exercise such
powers as are specifically delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental
thereto. The duties of the Agent shall be entirely
ministerial; the Agent shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement, the Notes or
any related document, or to enforce such performance, or to
inspect the property (including the books and records) of the
Company or any of its subsidiaries; and the Agent shall not be
required to take any action which exposes the Agent to
personal liability (unless indemnification with respect to
such action satisfactory to the Agent in its sole discretion
is provided to the Agent by the Required Banks) or which is
contrary to this Agreement or the Notes or applicable law.
Firstar Bank Milwaukee, National Association agrees to act as
Agent upon the express terms and conditions contained in this
Article IX.
9.2 Responsibility. The Agent (i) makes no
representation or warranty to any Bank and shall not be
responsible to any Bank for any oral or written recitals,
reports, statements, warranties or representations made in or
in connection with this Agreement or any Note; (ii) shall not
be responsible for the due execution, legality, validity,
enforceability, genuineness, sufficiency, collectibility or
value of this Agreement or any Note or any other instrument or
document furnished pursuant thereto; (iii) may treat the payee
of any Note as the owner thereof until the Agent receives
written notice of the assignment or transfer thereof signed by
such payee and in form satisfactory to the Agent; (iv) may
execute any of its duties under this Agreement by or through
employees, agents and attorneys in fact and shall not be
answerable for the default or misconduct of any such employee,
agent or attorney in fact selected by it with reasonable care;
(v) may (but shall not be required to) consult with legal
counsel (including counsel for the Company), independent
public accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken in
good faith by it in accordance with advice of such counsel,
accountants or experts; (vi) shall be entitled to rely upon
any note, notice, consent, waiver, amendment, certificate,
affidavit, letter, telegram, telex, cable or other document or
communication believed by it to be genuine and signed or sent
by the proper party or parties, and may rely on statements
contained therein without further inquiry or investigation.
Neither the Agent nor any of its directors, officers, agents,
or employees shall be liable for any action taken or omitted
to be taken by it or them under or in connection with this
-34-
Agreement or the Notes, except for its or their own gross
negligence or willful misconduct.
9.3 Agent's Indemnification. The Banks agree to
indemnify and reimburse the Agent (to the extent not
reimbursed by the Company), ratably from and against any and
all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Agent as such in any way
relating to or arising out of this Agreement or any action
taken or omitted by the Agent under this Agreement, provided
that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank agrees to
reimburse the Agent promptly upon demand for its ratable share
of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation,
execution, administration or enforcement of, or the
preservation of any rights under, this Agreement to the extent
that the Agent is not reimbursed for such expenses by the
Company.
9.4 Rights as a Lender. With respect to its
Commitment and the Notes issued to it, Firstar Bank Milwaukee,
National Association, in its individual capacity as a Bank,
shall have, and may exercise, the same rights and powers under
this Agreement and the Notes payable to it as any other Bank
has under this Agreement and Notes, and the terms "Bank" and
"Banks", unless the context otherwise requires, shall include
Firstar Bank Milwaukee, National Association in its individual
capacity as a Bank. Firstar Bank Milwaukee, National
Association and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally
engage in any kind of banking or trust business with, the
Company or any of its subsidiaries and any person, firm or
corporation who may do business with or own securities of the
Company or any subsidiary, all as if it were not the Agent,
and without any duty to account therefor to the Banks.
9.5 Credit Investigation. Each of the Banks
severally represents and warrants to each of the other Banks
and to the Agent that it has made its own independent
investigation and evaluation of the financial condition and
affairs of the Company and its Subsidiaries in connection with
such Bank's execution and delivery of this Agreement and the
making of its loans and has not relied on any information or
evaluation provided by any other Bank or the Agent in
connection with any of the foregoing (other than information
provided by the Company to the Agent for transmittal to the
Banks in connection with the foregoing); and each Bank
represents and warrants to each other Bank and to the Agent
that it shall continue to make its own independent
-35-
investigation and evaluation of the credit-worthiness of the
Company and its Subsidiaries while the Commitments and/or the
Notes are outstanding.
9.6 Compensation. The Agent shall receive such
compensation for its services as Agent under this Agreement as
may be agreed from time to time by the Company and the Agent.
ARTICLE X
MISCELLANEOUS
10.1 Accounting Terms; Definitions. Except as
otherwise provided, all accounting terms shall be construed in
accordance with generally accepted accounting principles
consistently applied and consistent with those applied in the
preparation of the financial statements referred to in section
4.5, and financial data submitted pursuant to this Agreement
shall be prepared in accordance with such principles. As used
herein:
(a) the term "Affiliate" means any person,
firm or corporation, which, directly or indirectly,
controls, is controlled by, or is under common
control with, the Company or a Subsidiary.
(b) the term "Business Day" means any day
other than a Saturday or Sunday on which banks in
the States of Wisconsin and Illinois are open for
the transaction of substantially all of their
banking functions; provided, however, that for
purposes of calculating the Basic LIBOR Rate, the
LIBOR Interest Periods, and the election of LIBOR
Pricing Options, the term "Business Day" shall mean
in addition only those days on which dealings in
U.S. dollar deposits are carried out by U.S.
financial institutions in the London interbank
market.
(c) the term "Capitalized Lease" means any
lease which is capitalized on the books of the
lessee, or should be so capitalized under generally
accepted accounting principles.
(d) the term "Commercial Paper" means (i) all
commercial paper issued by the Company from time to
time, including sales of commercial paper through
one or more of the Banks acting as placement agent
pursuant to separate agreements between the Company
and such Bank or Banks, and (ii) where expressly so
included by the terms of this Agreement, all Nicolet
Funding Corp. Loans described in section 1.9(e).
-36-
(e) the term "Consolidated Current Ratio"
means the relationship, expressed as a numerical
ratio, between:
(i) the amount of all assets which
under generally accepted principles of
accounting would appear as current assets
on the consolidated balance sheet of the
Company and its Subsidiaries, excluding
prepaid expenses which are not refundable
on the date the determination is made,
And
(ii) the amount of all liabilities
which under generally accepted principles
of accounting would appear as current
liabilities on such balance sheet,
including all indebtedness payable on
demand or maturing (whether by reason of
specified maturity, fixed prepayments,
sinking funds or accruals of any kind, or
otherwise) within 12 months or less from
the date of the relevant statement,
including all lease and rental obligations
due in 12 months or less under leases,
whether or not Capitalized Leases, and
including customers' advances and progress
xxxxxxxx on contracts.
(f) the term "Consolidated Fixed Charge
Coverage Ratio" means, for any period, the
relationship, expressed as a numerical ratio,
between:
(i) the Consolidated Net Earnings of the
Company for such period plus the sum of (A)
depreciation, amortization and all other non-
cash deductions arising in the normal course of
operations and shown on the Company's financial
statements for such period, (B) net interest
expense on indebtedness of the Company
(including the interest component of
Capitalized Leases) for such period and (C)
rental expense under leases other than
Capitalized Leases for such period; and
(ii) the sum of (A) net interest expense
on indebtedness of the Company (including the
interest component of Capitalized Leases) for
such period, (B) scheduled principal payments
on indebtedness of the Company during such
period, (C) the principal component of required
payments in respect of Capitalized Leases
during such period and (D) rental expense under
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leases other than Capitalized Leases for such
period.
(g) the term "Consolidated Total Liabilities"
means all liabilities of the Company and its
Subsidiaries properly appearing on a consolidated
balance sheet of the Company and its Subsidiaries in
accordance with generally accepted accounting
principles.
(h) the term "Consolidated Net Earnings" means
the excess of:
(i) all revenues and income derived
from operation in the ordinary course of business
(excluding extraordinary gains and profits upon the
disposition of investments and fixed assets),
Over:
(ii) all expenses and other proper
charges against income (including payment or
provision for all applicable income and other taxes,
but excluding extraordinary losses and losses upon
the disposition of investments and fixed assets),
all as determined in accordance with generally
accepted accounting principles as applied on a
consolidated basis to the Company and its
Subsidiaries.
(i) the term "Consolidated Tangible Net Worth"
means the total of all assets properly appearing on
the consolidated balance sheet of the Company and
its Subsidiaries in accordance with generally
accepted accounting principles, less the sum of the
following:
(i) the book amount of all such
assets which would be treated as intangibles under
generally accepted accounting principles, including,
without limitation, all such items as good will,
trademarks, trademark rights, trade names, tradename
rights, brands, copyrights, patents, patent rights,
licenses and unamortized debt discount and expense;
(ii) any write-up in the book value
of any such assets resulting from a revaluation
thereof subsequent to December 31, 1993;
(iii) all reserves, including
reserves for depreciation, obsolescence, depletion,
insurance, and inventory valuation, but excluding
contingency reserves not allocated for any
particular purpose and not deducted from assets;
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(iv) the amount, if any, at which any
shares of stock of the Company or any Subsidiary
appear on the asset side of such consolidated
balance sheet;
(v) all liabilities of the Company
and its Subsidiaries shown on such balance sheet;
and
(vi) all investments in foreign
affiliates and nonconsolidated domestic affiliates.
(j) the term "Controlled Group" means a
controlled group of corporations as defined in
section 1563 of the Internal Revenue Code of 1986,
as amended, of which the Company is a part.
(k) The term "Default" means any event or
condition which with the passage of time, the giving
of notice or both would constitute an Event of
Default.
(l) The term "Environmental Audit" means a
review for the purpose of determining whether the
Company and each Subsidiary complies with
Environmental Laws and whether there exists any
condition or circumstance which requires or will
require a cleanup, removal, or other remedial action
under Environmental Laws on the part of the Company
or any Subsidiary including, but not limited to,
some or all of the following:
(i) on site inspection including
review of site geology, hydrogeology, demography,
land use and population;
(ii) taking and analyzing soil
borings and installing ground water monitoring xxxxx
and analyzing samples taken from such xxxxx;
(iii) taking and analyzing of air
samples and testing of underground tanks;
(iv) reviewing plant permits,
compliance records and regulatory correspondence,
and interviewing enforcement staff at regulatory
agencies;
(v) reviewing the operations,
procedures and documentation of the Company and its
Subsidiaries; and
(vi) interviewing past and present
employees of the Company and its Subsidiaries.
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(m) The term "Environmental Laws" means all
federal, state and local laws including statutes,
regulations, ordinances, codes, rules and other
governmental restrictions and requirements relating
to the discharge of air pollutants, water pollutants
or process waste water or otherwise relating to the
environment or hazardous substances including, but
not limited to, the Federal Solid Waste Disposal
Act, the Federal Clean Air Act, the Federal Clean
Water Act, the Federal Resource Conservation and
Recovery Act of 1976, the Federal Comprehensive
Environmental Responsibility Cleanup and Liability
Act of 1980, regulations of the Environmental
Protection Agency, regulations of the Nuclear
Regulatory Agency, and regulations of any state
department of natural resources or state
environmental protection agency now or at any time
hereafter in effect.
(n) the term "ERISA" means the Employee
Retirement Income Security Act of 1974, as the same
may be in effect from time to time.
(o) the term "Letter of Credit Obligations" means
the aggregate undrawn face amounts of all outstanding
Letters of Credit and all unpaid Reimbursement
Obligations.
(p) the term "Permitted Liens" means:
(i) liens on property financed with
the proceeds of industrial revenue bonds permitted
by section 5.1(b) given to secure indebtedness
evidenced by such bonds and other obligations of the
Company directly relating thereto;
(ii) liens for taxes, assessments or
governmental charges, and liens incident to
construction, which are either not delinquent or are
being contested in good faith by the Company or a
Subsidiary by appropriate proceedings which will
prevent foreclosure of such liens, and against which
adequate reserves have been provided; and easements,
restrictions, minor title irregularities and similar
matters which have no adverse effect as a practical
matter upon the ownership and use of the affected
property by the Company or any Subsidiary;
(iii) liens or deposits in connection
with worker's compensation or other insurance or to
secure customs' duties, public or statutory
obligations in lieu of surety, stay or appeal bonds,
or to secure performance of contracts or bids (other
than contracts for the payment of money borrowed),
or deposits required by law or governmental
-40-
regulations or by any court order, decree, judgment
or rule as a condition to the transaction of
business or the exercise of any right, privilege or
license; or other liens or deposits of a like nature
made in the ordinary course of business; provided
that the aggregate amount of liabilities (including
interest and penalties, if any) of the Company
secured by any stay or appeal bond shall not exceed
$10,000,000 at any one time outstanding; and
(iv) purchase money liens on property
acquired in the ordinary course of business, to
finance or secure a portion of the purchase price
thereof, and liens on property acquired existing at
the time of acquisition; provided that in each case
such lien shall be limited to the property so
acquired, the liability secured by such lien does
not exceed either the purchase price or the fair
market value of the asset acquired, and the
indebtedness secured by such lien is permitted by
section 5.1.
(q) the term "Plan" means any employee pension
benefit plan subject to Title IV of ERISA maintained
by the Company, any of its Subsidiaries, or any
member of the Controlled Group, or any such plan to
which the Company, any of its Subsidiaries, or any
member of the Controlled Group is required to
contribute on behalf of any of its employees.
(r) the term "Reimbursement Obligations" means
all obligations of the Company to reimburse each LOC
Bank for all drawings under Letters of Credit.
(s) the term "Reportable Event" means a
reportable event as that term is defined in Title IV
of ERISA.
(t) The term "Required Banks" means Banks
holding at least 66 2/3% of the Aggregate
Commitment, or if the Aggregate Commitment has been
terminated, Banks holding at least 66 2/3% in
aggregate principal amount of the loans and Letter
of Credit Obligations outstanding hereunder.
(u) the term "Subsidiary" means a corporation
of which the Company owns, directly or through
another Subsidiary, at the date of determination,
more than 50% of the outstanding stock having
ordinary voting power for the election of directors,
irrespective of whether or not at such time stock of
any other class or classes might have voting power
by reason of the happening of any contingency.
-41-
(v) The term "Unfunded Liabilities" means,
with regard to any Plan, the excess of the current
value of the Plan's benefits guaranteed under ERISA
over the current value of the Plan's assets
allocable to such benefits.
10.2 Amendments, Etc. No waiver, amendment,
settlement or compromise of any of the rights of any Bank
under this Agreement, any Note or any of the Collateral
Documents shall be effective for any purpose unless it is in a
written instrument executed and delivered by the parties
authorized to act by this section 10.2. Subject to the
provisions of this section 10.2, the Required Banks (or the
Agent with the written consent of the Required Banks) and the
Company may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to this
Agreement, the Notes, or the Collateral Documents or changing
in any manner the rights of the Banks or the Company hereunder
or thereunder or waiving any Event of Default hereunder;
provided, however, that no such supplemental agreement shall,
without the consent of all of the Banks:
(a) Extend the maturity of any Note or reduce
the principal amount thereof, or reduce the rate or
amount or change the time of payment of interest or
fees payable on any Note or otherwise under this
Agreement.
(b) Amend the definition of Required Banks.
(c) Extend the Termination Date, or increase
the amount of the Commitment of any Bank hereunder,
or permit the Company to assign its rights under
this Agreement.
(d) Alter the provisions of section 2.5 of
this Agreement.
(e) Amend any provision of this Agreement
requiring a pro rata sharing among the Banks.
(f) Amend this section 10.2.
No amendment of any provision of this Agreement relating to
the Agent shall be effective without the written consent of
the Agent.
10.3 Expenses; Indemnity.
(a) The Company shall pay, or reimburse each
Bank for (i) all reasonable out-of-pocket costs and
expenses (including, without limitation, reasonable
attorneys' fees and expenses) paid or incurred by
such Bank in connection with the negotiation,
preparation, execution, delivery, and administration
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of this Agreement, the Notes, the Collateral
Documents and any other document required hereunder
or thereunder, including without limitation any
amendment, supplement, modification or waiver of or
to any of the foregoing; provided that such costs
and expenses of each Bank (other than the Agent) in
connection with the negotiation, preparation,
execution and delivery of this Agreement, the Notes
and the Collateral Documents shall not exceed
$2,500; (ii) all reasonable out-of-pocket costs and
expenses (including, without limitation, reasonable
attorneys' fees and expenses) paid or incurred by
such Bank after Default, before and after judgment,
in enforcing, protecting or preserving its rights
under this Agreement, the Notes, the Collateral
Documents and any other document required hereunder
or thereunder, including without limitation the
enforcement of rights against, or realization on,
any collateral or security therefor; and (iii) any
and all recording and filing fees and any and all
stamp, excise, intangibles and other taxes, if any,
(including, without limitation, any sales,
occupation, excise, gross receipts, franchise,
general corporation, personal property, privilege or
license taxes, but not including taxes levied upon
the net income of such Bank by the federal
government or the state (or political subdivision of
a state) where such Bank's principal office is
located), which may be payable or determined to be
payable in connection with the negotiation,
preparation, execution, delivery, administration or
enforcement of this Agreement, the Notes, the
Collateral Documents or any other document required
hereunder or thereunder or any amendment,
supplement, modification or waiver of or to any of
the foregoing, or consummation of any of the
transactions contemplated hereby or thereby,
including all costs and expenses incurred in
contesting the imposition of any such tax, and any
and all liability with respect to or resulting from
any delay in paying the same, whether such taxes are
levied upon such Bank, the Company or otherwise.
(b) The Company agrees to indemnify each Bank
against any and all losses, claims, damages,
liabilities and expenses, (including, without
limitation, reasonable attorneys' fees and expenses)
incurred by such Bank arising out of, in any way
connected with, or as a result of (i) any
acquisition or attempted acquisition of stock or
assets of another person or entity by the Company or
any subsidiary, (ii) the use of any of the proceeds
of any loans made hereunder by the Company or any
subsidiary for the making or furtherance of any such
acquisition or attempted acquisition, (iii) the
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construction or operation of any facility owned or
operated by the Company or any Subsidiary, or
resulting from any pollution or other environmental
condition on the site of, or caused by, any such
facility, (iv) the negotiation, preparation,
execution, delivery, administration, and enforcement
of this Agreement, the Note, the Collateral
Documents and any other document required hereunder
or thereunder, including without limitation any
amendment, supplement, modification or waiver of or
to any of the foregoing or the consummation or
failure to consummate the transactions contemplated
hereby or thereby, or the performance by the parties
of their obligations hereunder or thereunder, (v)
any claim, litigation, investigation or proceedings
related to any of the foregoing, whether or not any
Bank is a party thereto; provided, however, that
such indemnity shall not apply to any such losses,
claims, damages, liabilities or related expenses
arising from (A) any unexcused breach by such Bank
of its obligations under this Agreement or any
Collateral Document, (B) any commitment made by such
Bank to a person other than the Company or any
Subsidiary which would be breached by the
performance of such Bank's obligations under this
Agreement or (C) gross negligence or willful
misconduct of such Bank.
(c) The foregoing agreements and indemnities
shall remain operative and in full force and effect
regardless of termination of this Agreement, the
consummation of or failure to consummate either the
transactions contemplated by this Agreement or any
amendment, supplement, modification or waiver, the
repayment of any loans made hereunder, the
termination of the Letter of Credit Obligations, the
invalidity or unenforceability of any term or
provision of this Agreement or any of the Notes or
any Collateral Document, or any other document
required hereunder or thereunder, any investigation
made by or on behalf of any Bank, the Company or any
Subsidiary, or the content or accuracy of any
representation or warranty made under this
Agreement, any Collateral Document or any other
document required hereunder or thereunder.
(d) The foregoing indemnities shall remain
operative and in full force and effect regardless of
the termination of this Agreement, the consummation
of the transactions contemplated by this Agreement,
the repayment of the loans made hereunder, the
invalidity or unenforceability of any term or
provision of this Agreement or any of the Notes, any
investigation made by or on behalf of the Bank or
the Company, and the content of accuracy of any
-44-
representation or warranty made under this
Agreement.
10.4 Securities Act of 1933. Each Bank represents
that it is acquiring the Notes payable to it without any
present intention of making a sale or other distribution of
such Notes, provided each Bank reserves the right to sell its
Notes or participations therein.
10.5 No Agency. Except as expressly provided
herein, nothing in this Agreement and no action taken pursuant
hereto shall cause any Bank to be treated as the agent of any
other Bank, or shall be deemed to constitute the Banks a
partnership, association, joint venture or other entity.
10.6 Successors. The provisions of this Agreement
shall inure to the benefit of any holder of one or more of the
Notes, and shall inure to the benefit of and be binding upon
any successor to any of the parties hereto. This Agreement
shall not create any rights in favor of any other party
(including without limitation any holder of Commercial Paper,
including for this purpose Nicolet Funding Corp. Loans) and
the Banks shall have no liability whatsoever to any holder of
Commercial Paper as a result of this Agreement. No delay on
the part of any Bank or any holder of any of the Notes in
exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial
exercise of any right, power or privilege hereunder preclude
other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein
specified are cumulative and are not exclusive of any rights
or remedies which the Banks or the holder of any of the Notes
would otherwise have.
10.7 Survival. All agreements, representations and
warranties made herein shall survive the execution of this
Agreement, the making of the loans hereunder and the execution
and delivery of the Notes.
10.8 Wisconsin Law. This Agreement and the Notes
issued hereunder shall be governed by and construed in
accordance with the internal laws of the State of Wisconsin,
except to the extent superseded by federal law.
10.9 Counterparts. This Agreement may be signed in
any number of counterparts with the same effect as if the
signatures thereto and hereto were upon the same instrument.
10.10 Notices. All communications or notices
required under this Agreement shall be deemed to have been
given on the date when deposited in the United States mail,
postage prepaid, and addressed as follows (unless and until
any of such parties advises the other in writing of a change
in such address): (a) if to the Company, with the full name
and address of the Company as shown on this Agreement below;
-45-
and (b) if to any of the Xxxxx with the full name and address
of such Bank as shown on this Agreement above, to the
attention of the officer of the Bank executing the form of
acceptance of this Agreement.
10.11 Participations. With the prior written
consent of the Company and the Agent, each Bank may sell to
another financial institution or institutions interests in its
Notes (except that each Bank may sell such interests without
such consent to other financial institutions owned directly or
indirectly by it or by its controlling corporation) and, in
connection with each such sale, and thereafter, disclose to
any purchaser or potential purchaser of such interest any
financial information such Bank may have concerning the
Company and its Subsidiaries.
10.12 Entire Agreement; No Agency. This
Agreement and the other documents referred to herein contain
the entire agreement between the Banks and the Company with
respect to the subject matter hereof, superseding all previous
communications and negotiations, and no representation,
undertaking, promise or condition concerning the subject
matter hereof shall be binding upon the Banks unless clearly
expressed in this Agreement or in the other documents referred
to herein. Nothing in this Agreement or in the other
documents referred to herein and no action taken pursuant
hereto shall cause the Company to be treated as an agent of
any Bank, or shall be deemed to constitute the Banks and the
Company a partnership, association, joint venture or other
entity.
10.13 Consent to Jurisdiction. The Company
hereby consents to the jurisdiction of any state or federal
court situated in Milwaukee County, Wisconsin, and waives any
objection based on lack of personal jurisdiction, improper
venue or forum non conveniens, with regard to any actions,
claims, disputes or proceedings relating to this Agreement,
any Note, any of the Collateral Documents, or any other
document delivered hereunder or in connection herewith, or any
transaction arising from or connected to any of the foregoing.
Nothing herein shall affect the right of the Banks, or any of
them, to serve process in any manner permitted by law, or
limit the right of any Banks, or any of them, to bring
proceedings against the Company or its property or assets in
the competent courts of any other jurisdiction or
jurisdictions.
If the foregoing is satisfactory to you, please sign
the form of acceptance below and return a signed counterpart
hereof to the Company. When this instrument has been executed
-46-
and delivered by all of the Banks, it will evidence a binding
agreement between the Banks and the Company.
Very truly yours,
OSHKOSH B'GOSH, INC.
Address: 000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
By: /S/ XXXXX X. XXXXXXXXXX
(CORPORATE SEAL) Vice President of Finance
The foregoing Agreement is hereby confirmed and
accepted as of the date thereof.
FIRSTAR BANK MILWAUKEE,
NATIONAL ASSOCIATION,
as the Agent and as a Bank
By: /S/ XXXXX XXXXXXX
Title: Assistant Vice President
BANK ONE, MILWAUKEE, NA
By: /S/ X.X. XXXXXXXX
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /S/ XXXXXX X. DELUHY
Title: Vice President
NORWEST BANK WISCONSIN,
NATIONAL ASSOCIATION
By: /S/ XXXXXX X. XXXXXXX
Title: Vice President
-47-
EXHIBIT 1.1
REVOLVING CREDIT NOTE
$____________ _____________, 19__
FOR VALUE RECEIVED, OshKosh B'Gosh, Inc., a
Wisconsin corporation, promises to pay to the order of
____________________ ________________________, the principal
sum of __________________ Dollars ($____________) at the Main
Office of Firstar Bank Milwaukee, National Association in
Milwaukee, Wisconsin, on June 24, 1997. The unpaid principal
balance hereof shall bear interest, payable on the dates
specified in the Credit Agreement referred to below, computed
at the Applicable Rate as defined in such Credit Agreement.
Principal amounts unpaid at the maturity hereof
(whether by fixed maturity or acceleration) shall bear
interest from and after maturity until paid computed at a rate
equal to 2% per annum plus the rate otherwise payable
hereunder. Principal of and interest on this Note shall be
payable in lawful money of the United States of America.
This Note constitutes one of the Revolving Credit
Notes issued under a Credit Agreement dated as of June 24,
1994, among the undersigned and Firstar Bank Milwaukee,
National Association, for itself and as Agent, and the other
banks party thereto, to which Agreement reference is hereby
made for a statement of the terms and conditions on which
loans in part evidenced hereby were or may be made, and for a
description of the conditions upon which this Note may be
prepaid, in whole or in part, or its maturity accelerated.
OSHKOSH B'GOSH, INC.
By:
______________________________
Vice President of Finance
(CORPORATE SEAL)
EXHIBIT 1.2
DEMAND NOTE
$_______________ _________, 19__
FOR VALUE RECEIVED, OshKosh B'Gosh, Inc., a
Wisconsin corporation, promises to pay to the order of
___________________ __________________________________________
the principal sum of _____________________________ Dollars
($_______________), at the Main Office of Firstar Bank
Milwaukee, National Association, in Milwaukee, Wisconsin, ON
DEMAND. The unpaid principal balance hereof shall bear
interest, payable on the dates specified in the Credit
Agreement referred to below, computed at the Applicable Rate
as defined in such Credit Agreement.
Principal amounts unpaid at the maturity thereof
(whether by fixed maturity or acceleration) shall bear
interest from and after demand until paid computed at a rate
equal to 2% per annum plus the rate otherwise payable
hereunder. Principal of and interest on this Note shall be
payable in lawful money of the United States.
This Note constitutes one of the Demand Notes issued
under a Credit Agreement dated as of June 24, 1994 among the
undersigned and Firstar Bank Milwaukee, National Association,
for itself and as Agent, and the other banks party thereto, to
which Agreement reference is hereby made for a statement of
the terms and conditions on which loans in part evidenced
hereby were made and for a description of the terms and
conditions upon which this Note may be prepaid, in whole or in
part, or its maturity accelerated.
OSHKOSH B'GOSH, INC.
By:
______________________________
Vice President of Finance
(CORPORATE SEAL)
EXHIBIT 2.1
COMMERCIAL PAPER REPORT/LOAN REQUEST
_______________, 19__
Memorandum to:
Firstar Bank Milwaukee,
National Association, as Agent
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Re: Credit Agreement Dated as of June 24, 1994
(the "Credit Agreement")
Part 1: Commercial Paper Report
The aggregate principal amount of all Commercial
Paper (including for this purpose all Nicolet Funding Corp.
Loans) of the Company now outstanding is $____________.
Part 2: Loan Request
The Company hereby applies to the Agent for a loan
under the Credit Agreement to be made on ____________, 19__ in
the principal amount of $__________________. If such loan is
to be subject to a LIBOR Pricing Option, the LIBOR Interest
Period is _______ months.
The Company hereby certifies as follows:
(a) All of the representations and warranties set
forth in Article IV of the Credit Agreement continue to be
true on the date hereof, except that the financial statements
referred to in section 4.5 of the Credit Agreement shall be
deemed to be the most recent consolidated financial statements
of the Company delivered pursuant to section 6.6(a) or (b) of
the Credit Agreement.
(b) At the date hereof, no Default or Event of Default
under the Credit Agreement has occurred and is continuing.
OSHKOSH B'GOSH, INC.
By: _______________________
Title: _________________________
AMENDMENT NO. 1 TO CREDIT AGREEMENT
As of June 30, 1994
Firstar Bank Milwaukee,
National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Bank One, Milwaukee, NA
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Norwest Bank Wisconsin,
National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Gentlemen:
Please refer to that certain Credit Agreement dated as
of June 24, 1994 (the "Credit Agreement") between the
undersigned Oshkosh B'Gosh, Inc., a Delaware corporation (the
"Company") and you (the "Banks"). All capitalized terms used
and not otherwise defined herein shall have the meanings given
to such terms by the Credit Agreement.
1. Amendments to Credit Agreement. The Company
requests that the Banks agree to amend the Consolidated Fixed
Charge Coverage Ratio covenant set forth in section 6.1(c) of
the Credit Agreement as set forth below. Subject to all of
the terms and conditions hereof, the Banks agree to amend such
covenant as set forth below.
Therefore, subject to the terms and conditions set
forth herein, the Credit Agreement shall be amended, as of the
date first written above, as follows:
(a) All references to the Credit Agreement in the
Credit Agreement and in any of the Collateral Documents shall
refer to the Credit Agreement as amended hereby.
(b) Section 6.1(c) of the Credit Agreement is amended
to read in its entirety as follows:
(c) At the end of each fiscal quarter set forth in the
table below, a Consolidated Fixed Charge Coverage Ratio for
the four consecutive fiscal quarters then ended of at least
the amount set forth opposite such fiscal quarter:
Consolidated Fixed
Fiscal Quarter Ending Charge Coverage Ratio
1. June 30, 1994 and 1.5:1.0
September 30, 1994
2. December 31, 1994, 2.0:1.0
March 31, 1995,
June 30, 1995 and
September 30, 1995
3. December 31, 1995, 2.5:1.0
March 31, 1996,
June 30, 1996 and
September 30, 1996
4. December 31, 1996 3.0:1.0
and thereafter
2. Representations. The Company repeats and
reaffirms the representations and warranties set forth in
Article IV of the Credit Agreement. The Company also
represents and warrants that the execution, delivery and
performance of this Amendment are within the corporate powers
of the Company, have been duly authorized by all necessary
corporate action and do not and will not (i) violate any
provision of the certificate of incorporation or by-laws of
the Company or of any law, regulation, order, or judgment
presently in effect having applicability to the Company or
(ii) require the consent or approval of, or filing or
registration with, any governmental body, agency or authority;
or (iii) result in any breach of or constitute a default under
any indenture or other agreement or instrument under which the
Company is a party.
3. Confirmation of Credit Agreement. Except as
expressly provided above, the Credit Agreement shall remain in
full force and effect.
4. Fees and Expenses. The Company shall be
responsible for the payment of all fees and out-of-pocket
disbursements incurred by the Banks in connection with the
preparation, execution, delivery, administration and
enforcement of this Amendment and including without limitation
the reasonable fees and disbursements of counsel for the
Agent.
5. Miscellaneous. The provisions of this Amendment
shall inure to the benefit of and be binding upon any
successor to any of the parties hereto. All agreements,
representations and warranties made herein shall survive the
execution of this Amendment and the extension of credit under
the Credit Agreement, as so amended. This Amendment shall be
-52-
governed by and construed in accordance with the internal laws
of the State of Wisconsin. This Amendment may be signed in
any number of counterparts with the same effect as if the
signatures thereto and hereto were upon the same instrument.
If the foregoing is satisfactory to you, please sign
the form of acceptance below and return a signed counterpart
hereof to the Company.
Very truly yours,
OSHKOSH B'GOSH, INC.
By: /S/ XXXXX X. XXXXXXXXXX
Vice President of Finance
(Corporate Seal)
Agreed to as of the date first above written.
FIRSTAR BANK MILWAUKEE,
NATIONAL ASSOCIATION
By: /S/ XXXXX XXXXXXX
Title: Assistant Vice
President
BANK ONE, MILWAUKEE, NA
By: /S/ X.X. XXXXXXXX
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /S/ XXXXXX X. DELUHY
Title: Vice President
NORWEST BANK WISCONSIN,
NATIONAL ASSOCIATION
By: /S/ XXXXXX X. XXXXXXX
Title: Vice President
-53-
AMENDMENT NO. 2 TO CREDIT AGREEMENT
As of December 31, 1994
Firstar Bank Milwaukee,
National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Bank One, Milwaukee, NA
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Norwest Bank Wisconsin,
National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Gentlemen:
Please refer to that certain
Credit Agreement dated as of June 24, 1994, as amended by
Amendment No. 1 thereto dated as of June 30, 1994 (the "Credit
Agreement") between the undersigned Oshkosh B'Gosh, Inc., a
Delaware corporation (the "Company") and you (the "Banks").
All capitalized terms used and not otherwise defined herein
shall have the meanings given to such terms by the Credit
Agreement.
1.Amendments to Credit
Agreement. The Company requests that the
Banks agree to amend clause (ii) of section 5.7 of the Credit
Agreement (Contingent Liabilities) permitting certain
outstanding letters of credit issued for the account of the
Company by Republic National Bank of New York. Subject to all
of the terms and conditions hereof, the Banks agree to amend
such covenant as set forth below.
Therefore, subject to the terms
and conditions set forth herein, the Credit Agreement shall be
amended, as of the date first written above, as follows:
(a) All references to the
Credit Agreement in the Credit Agreement and in any of the
Collateral Documents shall refer to the Credit Agreement as
amended hereby.
(b) Clause (ii) of section 5.7
of the Credit Agreement is amended to read in its entirety as
follows:
(ii) in connection with letters of credit
issued for the account of the Company from
time to time by Republic National Bank of
New York, provided that (A) such letters
of credit shall not exceed $15,000,000 in
aggregate face amount at any time
outstanding and (B) none of such letters
of credit shall remain outstanding on or
after October 1, 1995, and
2.Representations. The Company
repeats and reaffirms the
representations and warranties set forth in Article IV of the
Credit Agreement as if made on and as of the date hereof. The
Company also represents and warrants that the execution,
delivery and performance of this Amendment are within the
corporate powers of the Company, have been duly authorized by
all necessary corporate action and do not and will not (i)
violate any provision of the certificate of incorporation or
by-laws of the Company or of any law, regulation, order, or
judgment presently in effect having applicability to the
Company or (ii) require the consent or approval of, or filing
or registration with, any governmental body, agency or
authority; or (iii) result in any breach of or constitute a
default under any indenture or other agreement or instrument
under which the Company is a party.
3.Confirmation of Credit
Agreement. Except as expressly provided
above, the Credit Agreement shall remain in full force and
effect.
4.Fees and Expenses. The
Company shall be responsible for the
payment of all fees and out-of-pocket disbursements incurred
by the Banks in connection with the preparation, execution,
delivery, administration and enforcement of this Amendment and
including without limitation the reasonable fees and
disbursements of counsel for the Agent.
5.Miscellaneous. The provisions
of this Amendment shall inure to
the benefit of and be binding upon any successor to any of the
parties hereto. All agreements, representations and
warranties made herein shall survive the execution of this
Amendment and the extension of credit under the Credit
Agreement, as so amended. This Amendment shall be governed by
and construed in accordance with the internal laws of the
State of Wisconsin. This Amendment may be signed in any
number of counterparts with the same effect as if the
signatures thereto and hereto were upon the same instrument.
If the foregoing is satisfactory
to you, please sign the form of acceptance below and return a
signed counterpart hereof to the Company.
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Very truly yours,
OSHKOSH B'GOSH, INC.
By: /S/ XXXXX X. XXXXXXXXXX
Vice President of Finance
(Corporate Seal)
Agreed to as of the date first above written.
FIRSTAR BANK MILWAUKEE,
NATIONAL ASSOCIATION
By: /S/ XXXXX XXXXXXX
Title: Assistant Vice
President
BANK ONE, MILWAUKEE, NA
By: /S/ X.X. XXXXXXXX
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /S/ XXXXXX X. DELUHY
Title: Vice President
NORWEST BANK WISCONSIN,
NATIONAL ASSOCIATION
By: /S/ XXXXXX X. XXXXXXX
Title: Vice President
-56-
AMENDMENT NO. 3 TO CREDIT AGREEMENT
As of December 21, 1995
Firstar Bank Milwaukee,
National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Bank One, Milwaukee, NA
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Norwest Bank Wisconsin,
National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Gentlemen:
Please refer to that certain
Credit Agreement dated as of June 24, 1994, as amended through
Amendment No. 2 thereto dated as of December 31, 1994 (the
"Credit Agreement") between the undersigned Oshkosh B'Gosh,
Inc., a Delaware corporation (the "Company") and you (the
"Banks"). All capitalized terms used and not otherwise
defined herein shall have the meanings given to such terms by
the Credit Agreement.
1.Amendments to Credit
Agreement. The Company requests that the
Banks agree to amend the Consolidated Fixed Charge Coverage
Ratio covenant set forth in section 6.1(c) of the Credit
Agreement as set forth below. Subject to all of the terms and
conditions hereof, the Banks agree to amend such covenant as
set forth below.
Therefore, subject to the terms
and conditions set forth herein, the Credit Agreement shall be
amended, as of the date first written above, as follows:
(a) All references to the
Credit Agreement in the Credit Agreement and in any of the
Collateral Documents shall refer to the Credit Agreement as
amended hereby.
(b) Section 6.1(c) of the
Credit Agreement is amended to read in its entirety as
follows:
(c) At the end of each fiscal
quarter during each period set forth in the table below, a
Consolidated Fixed Charge Coverage Ratio for the four
consecutive fiscal quarters then ended of at least the amount
set forth opposite such period:
Consolidated Fixed
Period Charge Coverage Ratio
1. From December 31, 2.0:1.0
1994 through and
including December
31, 1996
2. From January 1, 2.5:1.0
1997 through and
including
September 30, 1997
3. From October 1, 3.0:1.0
1997 and
thereafter
2.Representations. The Company
repeats and reaffirms the
representations and warranties set forth in Article IV of the
Credit Agreement. The Company also represents and warrants
that the execution, delivery and performance of this Amendment
are within the corporate powers of the Company, have been duly
authorized by all necessary corporate action and do not and
will not (i) violate any provision of the certificate of
incorporation or by-laws of the Company or of any law,
regulation, order, or judgment presently in effect having
applicability to the Company or (ii) require the consent or
approval of, or filing or registration with, any governmental
body, agency or authority; or (iii) result in any breach of or
constitute a default under any indenture or other agreement or
instrument under which the Company is a party.
3.Confirmation of Credit
Agreement. Except as expressly provided
above, the Credit Agreement shall remain in full force and
effect.
4.Fees and Expenses. The
Company shall be responsible for the
payment of all fees and out-of-pocket disbursements incurred
by the Banks in connection with the preparation, execution,
delivery, administration and enforcement of this Amendment and
including without limitation the reasonable fees and
disbursements of counsel for the Agent.
5.Miscellaneous. The provisions
of this Amendment shall inure to
the benefit of and be binding upon any successor to any of the
parties hereto. All agreements, representations and
warranties made herein shall survive the execution of this
Amendment and the extension of credit under the Credit
Agreement, as so amended. This Amendment shall be governed by
-58-
and construed in accordance with the internal laws of the
State of Wisconsin. This Amendment may be signed in any
number of counterparts with the same effect as if the
signatures thereto and hereto were upon the same instrument.
If the foregoing is satisfactory
to you, please sign the form of acceptance below and return a
signed counterpart hereof to the Company.
Very truly yours,
OSHKOSH B'GOSH, INC.
By: /S/ XXXXX X. XXXXXXXXXX
Vice President of Finance
(Corporate Seal)
-59-
Agreed to as of the date first above written.
FIRSTAR BANK MILWAUKEE,
NATIONAL ASSOCIATION
By: /S/ XXXXX XXXXXXX
Title: Assistant Vice
President
BANK ONE, MILWAUKEE, NA
By: /S/ X. X. XXXXXXXX
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /S/ XXXXXX X. DELUHY Title:
Vice President
NORWEST BANK WISCONSIN,
NATIONAL ASSOCIATION
By: /S/ XXXXXX X. XXXXXXX
Title: Vice President
-60-
AMENDMENT NO. 4 TO CREDIT AGREEMENT
As of January 30, 1996
Firstar Bank Milwaukee,
National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Bank One, Milwaukee, NA
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Norwest Bank Wisconsin,
National Association
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Gentlemen:
OshKosh B'Gosh, Inc., a Delaware
corporation (the "Company"), hereby agrees with each of you as
follows:
1.Definitions. Reference is
made to that certain Credit Agreement
dated as of June 24, 1994, as amended through Amendment No. 3
thereto dated as of December 21, 1995 (the "Credit Agreement")
between the Company and each of you other than The First
National Bank of Boston, pursuant to which the Company has
issued (i) its Revolving Credit Notes to each of you other
than The First National Bank of Boston in the aggregate
principal amount of $60,000,000, and (ii) its Demand Notes to
each of you other than The First National Bank of Boston in
the aggregate principal amount of $40,000,000, each dated as
of June 24, 1994 (collectively, the "Existing Notes"). All
capitalized terms used and not otherwise defined herein shall
have the meanings given to such terms by the Credit Agreement
as amended hereby.
2.Addition of The First National
Bank of Boston; New Notes. The
Company has informed each of you that it wishes, and The First
National Bank of Boston has informed the Company and each of
you other than itself that it wishes, that The First National
Bank of Boston become a party to the Credit Agreement on the
terms and conditions herein and therein set forth. On the
effective date of this Amendment, all loans made or continued
pursuant to the Credit Agreement, including the unpaid
balances of the Existing Notes, shall be evidenced by (i) new
Revolving Credit Notes of the Company in the form of Exhibit
1.1 annexed hereto in the aggregate principal amount of
$60,000,000, and (ii) new Demand Notes of the Company in the
form of Exhibit 1.2 annexed hereto in the aggregate principal
amount of $40,000,000, each to be dated as of the date hereof
(collectively, the "New Notes"). The New Notes shall be
executed by the Company and delivered to each of you on the
date hereof against the return of the Existing Notes to the
Company. Accrued interest on the Existing Notes outstanding
on the date of issuance of the New Notes shall be included in
the interest due on the New Notes issued in replacement of
such Existing Notes on the first interest payment date
specified therein.
3.Amendments to Credit
Agreement. Subject to the terms and
conditions set forth herein, the Credit Agreement shall be
amended, as of the date first written above, as follows:
(a) All references in the
Credit Agreement to the Notes issued thereunder and the loans
evidenced thereby shall refer to the New Notes issued
hereunder and the loans evidenced thereby (including the
unpaid balances of the Existing Notes).
(b) All references to the
Credit Agreement in the Credit Agreement and in any other
agreements relating thereto shall refer to the Credit
Agreement as amended hereby.
(c) The first page of the
Credit Agreement is amended by adding The First National Bank
of Boston, at its address set forth on the first page of this
Amendment, as an additional addressee. The First National
Bank of Boston shall be included as one of the Banks for all
purposes of the Credit Agreement, and all references to the
Banks in the Credit Agreement and all other agreements
relating thereto shall hereafter be deemed to refer
collectively to Firstar Bank Milwaukee, National Association,
Bank One, Milwaukee, NA, Xxxxxx Trust and Savings Bank,
Norwest Bank Wisconsin, National Association, and The First
National Bank of Boston.
(d) The table set forth in
Section 1.1 of the Credit Agreement (Revolving Credit) is
amended to read in its entirety as follows:
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Percentage
Name of Bank Commitment Interest
Firstar Bank Milwaukee,
National Association $18,000,000 30.0%
Bank One, Milwaukee, NA $12,000,000 20.0%
Xxxxxx Trust and Savings Bank $10,500,000 17.5%
Norwest Bank Wisconsin,
National Association $10,500,000 17.5%
The First National Bank of
Boston $ 9,000,000 15.0%
TOTAL $60,000,000 100%
(e) The table set forth in Section 1.2 of the
Credit Agreement (Demand Line of Credit) is amended to read in
its entirety as follows:
Name of Bank Demand Line
Firstar Bank Milwaukee,
National Association $12,000,000
Bank One, Milwaukee, NA $ 8,000,000
Xxxxxx Trust and Savings Bank $ 7,000,000
Norwest Bank Wisconsin,
National Association $ 7,000,000
The First National Bank of
Boston $ 6,000,000
TOTAL $40,000,000
(f) The first clause of the definition of "Business
Day" (prior to the semicolon) set forth in Section 10.1(b) of
the Credit Agreement is hereby amended to read in its entirety
as follows:
(b) the term "Business Day" means any day
other than a Saturday or Sunday on which banks in
the States of Wisconsin, Illinois and Massachusetts
are open for the transaction of substantially all of
their banking functions;
4. Representations. The Company repeats and
reaffirms the representations and warranties set forth in
Article IV of the Credit Agreement. The Company also
represents and warrants that the execution, delivery and
performance of this Amendment are within the corporate powers
of the Company, have been duly authorized by all necessary
corporate action and do not and will not (i) violate any
provision of the certificate of incorporation or by-laws of
-63-
the Company or of any law, regulation, order, or judgment
presently in effect having applicability to the Company or
(ii) require the consent or approval of, or filing or
registration with, any governmental body, agency or authority;
or (iii) result in any breach of or constitute a default under
any indenture or other agreement or instrument under which the
Company is a party.
5. Related Transactions; Computations. Upon
issuance of the New Notes, (i) The First National Bank of
Boston shall become a party to the Credit Agreement as amended
hereby with the same force and effect as if a signatory
thereto and shall have (a) the Commitment and Percentage
Interest in the revolving credit loans to be made under the
Credit Agreement set forth opposite its name in Section 1.1 of
the Credit Agreement as amended hereby, and (b) its respective
share of the Demand Line set forth in Section 1.2 of the
Credit Agreement as amended hereby, (ii) each of you will make
such adjustments among yourselves as are necessary so that
after giving effect to such adjustments, the Percentage
Interest of each of you in the revolving credit loans
outstanding under the Credit Agreement will be the Percentage
Interest set forth under Section 1.1 of the Credit Agreement
as amended hereby, and your respective shares of the
outstanding portion of the Demand Line will be as set forth
under Section 1.2 of the Credit Agreement as amended hereby,
and (iii) the obligations of the Company to The First National
Bank of Boston under the Credit Agreement as amended hereby
shall begin to accrue. The interest and commitment fees due
each of you other than The First National Bank of Boston with
respect to periods prior to the date hereof shall be
determined in accordance with the Credit Agreement as in
effect prior to the date hereof, and the interest and
commitment fees due each of you with respect to the periods
beginning on or after the date hereof shall be determined in
accordance with the Percentage Interests in effect on and
after the date hereof.
6. Conditions. Without limiting any of the other
terms of the Credit Agreement as amended hereby, this
Amendment shall not become effective, and the Banks shall not
be required to make any further loans to the Company unless
and until:
(a) No Default or Event of Default shall have
occurred and be continuing and neither the business nor the
assets nor the financial condition of the Company shall have
been materially adversely affected as the result of any event
or development since December 31, 1994.
(b) The Banks shall have received such documents
concerning the corporate status of the Company and the
authorization of the transactions contemplated hereby as may
be reasonably requested, and such other matters as the Banks
shall reasonably require; and
-64-
(c) All proceedings taken in connection with the
transactions contemplated by this Amendment and all
instruments, authorizations and other documents applicable
thereto shall be satisfactory in form and substance in the
reasonable opinion of the Banks and their counsel.
7. Confirmation of Credit Agreement. Except as
expressly provided above, the Credit Agreement shall remain in
full force and effect.
8. Fees and Expenses. The Company shall be
responsible for the payment of all fees and out-of-pocket
disbursements incurred by the Banks in connection with the
preparation, execution, delivery, administration and
enforcement of this Amendment and including without limitation
the reasonable fees and disbursements of counsel for the
Agent.
9. Miscellaneous. The provisions of this
Amendment shall inure to the benefit of and be binding upon
any successor to any of the parties hereto. All agreements,
representations and warranties made herein shall survive the
execution of this Amendment and the extension of credit under
the Credit Agreement, as so amended. This Amendment shall be
governed by and construed in accordance with the internal laws
of the State of Wisconsin. This Amendment may be signed in
any number of counterparts with the same effect as if the
signatures thereto and hereto were upon the same instrument.
If the foregoing is satisfactory to you, please sign
the form of acceptance below and return a signed counterpart
hereof to the Company.
Very truly yours,
OSHKOSH B'GOSH, INC.
By: /S/ XXXXX X. XXXXXXXXXX
Vice President of Finance
(Corporate Seal)
Agreed to as of the date first above written.
FIRSTAR BANK MILWAUKEE,
NATIONAL ASSOCIATION
By: /S/ XXXXX XXXXXXX
Title: Vice President
-00-
XXXX XXX, XXXXXXXXX, NA
By: /S/ X.X. XXXXXXXX
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /S/ XXXXXX X. DELUHY
Title: Vice President
NORWEST BANK WISCONSIN,
NATIONAL ASSOCIATION
By: /S/ XXXXXX X. XXXXXXX
Title: Vice President
THE FIRST NATIONAL BANK OF
BOSTON
By: /S/ XXXXX XXXXXXXX
Title: Director
-66-
EXHIBIT 1.1
PROMISSORY NOTE
$____________ _____________, 19__
FOR VALUE RECEIVED, OshKosh B'Gosh, Inc., a Delaware
corporation, promises to pay to the order of
____________________ ________________________, the principal
sum of __________________ Dollars ($____________) at the Main
Office of Firstar Bank Milwaukee, National Association in
Milwaukee, Wisconsin, on June 24, 1997. The unpaid principal
balance hereof shall bear interest, payable on the dates
specified in the Credit Agreement referred to below, computed
at the Applicable Rate as defined in such Credit Agreement.
Principal amounts unpaid at the maturity hereof
(whether by fixed maturity or acceleration) shall bear
interest from and after maturity until paid computed at a rate
equal to 2% per annum plus the rate otherwise payable
hereunder. Principal of and interest on this Note shall be
payable in lawful money of the United States of America.
This Note constitutes one of the Revolving Credit
Notes issued under a Credit Agreement dated as of June 24,
1994, as amended, among the undersigned and Firstar Bank
Milwaukee, National Association, for itself and as Agent, and
the other banks party thereto, to which Agreement reference is
hereby made for a statement of the terms and conditions on
which loans in part evidenced hereby were or may be made, and
for a description of the conditions upon which this Note may
be prepaid, in whole or in part, or its maturity accelerated.
OSHKOSH B'GOSH, INC.
By:
______________________________
Vice President of Finance
(CORPORATE SEAL)
EXHIBIT 1.2
DEMAND NOTE
$____________ _____________, 19__
FOR VALUE RECEIVED, OshKosh B'Gosh, Inc., a Delaware
corporation, promises to pay to the order of
____________________ ________________________, the principal
sum of __________________ Dollars ($____________) at the Main
Office of Firstar Bank Milwaukee, National Association in
Milwaukee, Wisconsin, ON DEMAND. The unpaid principal balance
hereof shall bear interest, payable on the dates specified in
the Credit Agreement referred to below, computed at the
Applicable Rate as defined in such Credit Agreement.
Principal amounts unpaid at the maturity hereof
(whether by fixed maturity or acceleration) shall bear
interest from and after demand until paid computed at a rate
equal to 2% per annum plus the rate otherwise payable
hereunder. Principal of and interest on this Note shall be
payable in lawful money of the United States of America.
This Note constitutes one of the Demand Notes issued
under a Credit Agreement dated as of June 24, 1994, as
amended, among the undersigned and Firstar Bank Milwaukee,
National Association, for itself and as Agent, and the other
banks party thereto, to which Agreement reference is hereby
made for a statement of the terms and conditions on which
loans in part evidenced hereby were made and for a description
of the terms and conditions on which loans in part evidenced
hereby were made and for a description of the terms and
conditions upon which this Note may be prepaid, in whole or in
part, or its maturity accelerated.
OSHKOSH B'GOSH, INC.
By: ________________________
Vice President of Finance
(CORPORATE SEAL)
