Exhibit 10(b)
EXECUTION COPY
CREDIT AGREEMENT
dated as of January 25, 1999
among
NATIONAL WINE & SPIRITS, INC.
AND
NBD BANK
BNY FINANCIAL CORPORATION
LASALLE NATIONAL BANK
NATIONAL CITY BANK OF INDIANA
and
NBD BANK, as Agent
TABLE OF CONTENTS
Article Page
1. DEFINITIONS .............................................................. 1
1.1. Certain Definitions............................................ 1
1.2 Other Definitions; Rules of Construction.......................15
2. THE COMMITMENTS AND THE ADVANCES..........................................15
2.1 Commitment of the Banks........................................15
2.2 Termination and Reduction of Commitments.......................16
2.3 Fees...........................................................16
2.4 Disbursement of Advances.......................................17
2.5 Conditions for First Disbursement..............................20
2.6 Further Conditions for Disbursement............................22
2.7 Subsequent Elections as to Loans...............................23
2.8 Limitation of Requests and Elections...........................23
2.9 Minimum Amounts; Limitation on Number of Loans; Etc............24
2.10 Borrowing Base Adjustments.....................................24
2.11 Security and Collateral........................................24
3. PAYMENTS AND PREPAYMENTS OF LOANS.........................................25
3.1 Principal Payments and Prepayments.............................25
3.2 Interest Payments..............................................25
3.3 Letter of Credit Reimbursement Payments........................26
3.4 Payment Method.................................................28
3.5 No Setoff or Deduction.........................................28
3.6 Payment on Non-Business Day; Payment Computations..............28
3.7 Additional Costs...............................................29
3.8 Illegality and Impossibility...................................30
3.9 Indemnification................................................30
4 REPRESENTATIONS AND WARRANTIES............................................31
4.1 Existence and Power............................................31
4.2 Authority......................................................31
4.3 Binding Effect.................................................31
4.4 Restricted and Unrestricted Subsidiaries.......................31
4.5 Litigation.....................................................32
4.6 Financial Condition............................................32
4.7 Corporate Restructuring and Future Financial Statements........32
4.8 Use of Advances................................................32
4.9 Consents, Etc..................................................33
4.10 Taxes..........................................................33
4.11 Title to Properties............................................33
4.12 Borrowing Base.................................................33
4.13 ERISA..........................................................33
4.14 Disclosure.....................................................34
4.15 No Default.....................................................34
4.16 No Burdensome Restrictions.....................................34
4.17 Year 2000......................................................34
5. COVENANTS 34
5.1 Affirmative Covenants..........................................34
(a) Preservation of Corporate Existence, Etc.................35
(b) Compliance with Laws, Etc................................35
(c) Maintenance of Properties; Insurance.....................35
(d) Reporting Requirements...................................36
(e) Accounting; Access to Records, Books, Etc................38
(f) Loans by the Company to the Restricted Subsidiaries......38
(g) Additional Security and Collateral.......................38
(h) Addition of Covenants; Incorporation by Reference........38
(i) Further Assurances.......................................39
(j) Year 2000................................................39
5.2 Negative Covenants.............................................39
(a) Interest Coverage Ratio..................................39
(b) Funded Debt Coverage Ratio...............................39
(c) Indebtedness.............................................40
(d) Liens....................................................40
(e) Merger; Acquisitions, Etc................................41
(f) Disposition of Assets; Etc...............................42
(g) Nature of Business.......................................42
(h) Restricted Payments......................................42
(i) Capital Expenditures.....................................43
(j) Capital Leases...........................................43
(k) Investments..............................................43
(l) Transactions with Affiliates.............................44
(m) Sale and Leaseback Transactions..........................44
(n) Payments and Modification of Subordinated Debt...........44
(o) Payment and Modification of Senior Unsecured Debt........44
(p) Negative Pledge Limitation...............................45
(q) Inconsistent Agreements..................................45
(r) Accounting Changes.......................................45
6. DEFAULT ..................................................................45
6.1 Events of Default..............................................45
6.2 Remedies.......................................................48
7. THE AGENT AND THE BANKS...................................................49
7.1 Appointment and Authorization..................................49
7.2 Agent and Affiliates...........................................49
7.3 Scope of Agent's Duties........................................49
7.4 Reliance by Agent..............................................50
7.5 Default........................................................50
7.6 Liability of Agent.............................................50
7.7 Nonreliance on Agent and Other Banks...........................50
7.8 Indemnification................................................51
7.9 Successor Agent................................................51
7.10 Sharing of Payments............................................52
8. GUARANTY..................................................................53
8.1 Guarantee of Obligations.......................................53
8.2 Nature of Guaranty.............................................53
8.3 Waivers and Other Agreements...................................53
8.4 Obligations Absolute...........................................54
8.5 No Investigation by Banks or Agent.............................54
8.6 Indemnity......................................................55
8.7 Subordination, Subrogation, Etc................................55
8.8 Waiver.........................................................55
8.9 Limitation of Guaranteed Amount................................55
9. MISCELLANEOUS.............................................................57
9.1 Amendments, Etc................................................57
9.2 Notices........................................................57
9.3 No Waiver By Conduct; Remedies Cumulative......................58
9.4 Reliance on and Survival of Various Provisions.................58
9.5 Expenses; Indemnification......................................59
9.6 Successors and Assigns.........................................60
9.7 Counterparts and Telefacsimile Signature.......................63
9.8 Governing Law..................................................63
9.9 Table of Contents and Headings.................................64
9.10 Construction of Certain Provisions.............................64
9.11 Integration and Severability...................................64
9.12 Independence of Covenants......................................64
9.13 Interest Rate Limitation.......................................64
9.14 Waiver of Jury Trial...........................................65
EXHIBITS
Exhibit A....................... Borrowing Base Certificate
Exhibit B....................... Intercompany Note
Exhibit C....................... Note
Exhibit D....................... Pledge Agreement
Exhibit E....................... Security Agreement
Exhibit F....................... Legal Opinion
Exhibit G....................... Assignment and Acceptance
SCHEDULES
Schedule 2.5(k)................. Debt to be Repaid
Schedule 4.4.................... Restricted and Unrestricted Subsidiaries
Schedule 4.5.................... Litigation
Schedule 4.17................... Year 2000 Program
Schedule 5.2(c)................. Indebtedness
Schedule 5.2(d)................. Liens
Schedule 5.2(j)................. Capital Leases
Schedule 5.2(k)................. Investments
THIS CREDIT AGREEMENT, dated as of January 25, 1999 (this
"Agreement"), is by and among NATIONAL WINE & SPIRITS, INC., an Indiana
corporation (the "Company"), the Guarantors named herein, the Banks set forth on
the signature pages hereof (collectively, the "Banks" and individually, a
"Bank") and NBD BANK, a Michigan banking corporation, as agent for the Banks (in
such capacity, the "Agent").
INTRODUCTION
The Company desires to obtain a revolving credit facility,
including letters of credit, in the aggregate principal amount of $60,000,000,
in order to provide funds and other financial accommodations for working capital
and its other general corporate purposes, and the Banks are willing to establish
such a credit facility in favor of the Company on the terms and conditions
herein set forth.
In consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
Certain Definitions. As used herein the following terms shall have the
following respective meanings:
"Adjusted Base Rate" shall mean the per annum rate equal to the
sum of (a) the Applicable Margin plus (b) the greater of (i) the Base Rate in
effect from time to time, and (ii) the sum of one-half of one percent (1/2 of
1%) per annum plus the Federal Funds Rate in effect from time to time; which
Adjusted Base Rate shall change simultaneously with any change in such Base Rate
or Federal Funds Rate, as the case may be.
"Adjusted Base Rate Loan" shall mean any Loan which bears
interest at the Adjusted Base Rate.
"Advance" shall mean any Loan and any Letter of Credit Advance.
"Affiliate", when used with respect to any Person shall mean
any other Person which, directly or indirectly, controls or is controlled by or
is under common control with such Person. For purposes of this definition
"control" (including the correlative meanings of the terms "controlled by" and
"under common control with"), with respect to any Person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"Applicable Margin" shall mean for any date with respect to any
Adjusted Base Rate Loan, Eurodollar Rate Loan, or commitment fee, as the case
may be, the applicable percentage set forth in the applicable column of the
table below for, in the case of Loans, the Borrowing Base level in effect on
such date, based upon the Interest Coverage Ratio as determined as of the end of
each fiscal quarter, commencing with the March 31, 1999 fiscal quarter, for the
period of the four fiscal quarters then ending, as adjusted on the tenth
Business Day following receipt by the Agent of the Company's financial
statements for such fiscal quarter, or fiscal year, as the case may be, and
remaining in effect until the next change to be effected pursuant to this
definition, provided that if any Event of Default has occurred and is
continuing, the Interest Coverage Ratio as of the end of the most recently ended
fiscal quarter shall, for the purposes of this definition, be deemed to be less
than 2.00:1.00 and during the period from the Effective Date through and
including April 30, 1999, the Applicable Margin shall be determined from Tier
VI. In the table below, the abbreviation "bps" means "basis points". Each basis
point is equal to 0.01% per annum.
Applicable Margin (in bps)
80% A/R + 60% Inv. 75% A/R + 55% Inv. 70% A/R + 50% Inv.
Interest --------------------- ---------------------- ---------------------- Commitment
Coverage Ratio ABR Eurodollar ABR Eurodollar ABR Eurodollar Fee
Tier
I >4.00:1.00 0 150 0 125 0 100 25
II >3.50<=4.00:1.00 0 175 0 150 0 125 30
III >3.00<=3.50:1.00 25 200 0 175 0 150 30
IV >2.50<=3.00:1.00 50 225 25 200 0 175 30
V >2.25<=2.50:1.00 75 250 50 225 25 200 37.5
VI >2.00<=2.25:1.00 100 275 75 250 50 225 50
VII <=2.00:1.00 125 300 100 275 75 250 50
"Asset Sale" shall mean (i) the sale, lease, conveyance or
other disposition of any assets or rights other than sales of inventory in the
ordinary course of business consistent with past practices and (ii) the issue or
sale by the Company or any of its Restricted Subsidiaries of Equity Interests of
any of the Company's Restricted Subsidiaries, in the case of either clause (i)
or (ii), whether in a single transaction or a series of related transactions (a)
that have a fair market value in excess of $1 million or (b) for net proceeds in
excess of $1 million, but excluding a transfer of assets by the Company to a
Restricted Subsidiary or by a Restricted Subsidiary to the Company or to another
Restricted Subsidiary.
"Base Rate" shall mean the per annum rate announced by the
Agent from time to time as its "base rate" or its "prime rate" (it being
acknowledged that such announced rate may not necessarily be the lowest rate
charged by the Agent to any of its customers); which Base Rate shall change
simultaneously with any change in such announced rate.
"Borrowing" shall mean the aggregation of Advances, including
each Letter of Credit issuance, of the Banks to be made to the Company, or
continuations and conversions of any Loans, made pursuant to Article II on a
single date and, in the case of any Loans, for a single Interest Period, which
Borrowings may be classified for purposes of this Agreement by reference to the
type of Loans or the type of Advance comprising the related Borrowing, e.g., a
"Eurodollar Rate Borrowing" is a Borrowing comprised of Eurodollar Rate Loans
and a "Letter of Credit Borrowing" is an Advance comprised of a single Letter of
Credit.
"Borrowing Base" shall mean, as of any date, one of the
following three levels: (1) the sum of (a) an amount equal to 80% of the value
of Eligible Accounts Receivable plus (b) an amount equal to 60% of the value of
Eligible Inventory; or (2) the sum of (a) an amount equal to 75% of the value of
Eligible Accounts Receivable plus (b) an amount equal to 55% of the value of
Eligible Inventory; or (3) the sum of (a) 70% of the value of Eligible Accounts
Receivable plus (b) 50% of the value of Eligible Inventory, as selected by the
Company as follows: The initial Borrowing Base shall be the level described in
(3) above. The Company may change the Borrowing Base level by submitting written
notice of its selection of a different Borrowing Base level to the Agent. The
change in the Borrowing Base level shall be effective ten (10) Business Days
following receipt by the Agent of the request to change. The Company may not
change the Borrowing Base level more than four (4) times in any twelve (12)
month period, nor more frequently than once in a sixty (60) day period without
the written consent of the Agent.
"Borrowing Base Certificate" for any date shall mean an
appropriately completed report as of such date in substantially the form of
Exhibit A hereto, certified as true and correct as of such date by a duly
authorized officer of the Company.
"Business Day" shall mean a day other than a Saturday, Sunday
or other day on which the Agent is not open to the public for carrying on
substantially all of its banking functions in Detroit, Michigan.
"Capital Lease" of any Person shall mean any lease which, in
accordance with generally accepted accounting principles, is or should be
capitalized on the books of such Person.
"Capital Stock" shall mean (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership (whether general or limited) or membership
interests and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the regulations thereunder.
"Commitment" shall mean, with respect to each Bank, the
commitment of each such Bank to make Loans and to participate in Letter of
Credit Advances made through the Agent pursuant to Section 2.1, in amounts not
exceeding in aggregate principal amount outstanding at any time the respective
commitment amounts for each such Bank set forth next to the name of each such
Bank in the signature pages hereof, as such amounts may be reduced from time to
time pursuant to Section 2.2.
"Company Shareholder Note Receivable" shall mean any promissory
note receivable due to NWS-Indiana on the date of this Agreement from any
shareholder of the Company.
"Consolidated" has the meaning accorded under Generally
Accepted Accounting Principles, provided, however, that any calculation under
this Agreement requiring a determination on a Consolidated basis for any period
ending prior to the date of this Agreement shall be determined on a combined
basis for NWS-Indiana and NWS-Illinois.
"Consolidated Cash Flow" shall mean, with respect to the
Company and its Restricted Subsidiaries for any period, their Consolidated Net
Income for such period plus (i) an amount equal to any extraordinary loss plus
any net loss realized in connection with an Asset Sale (to the extent such
losses were deducted in computing such Consolidated Net Income), plus (ii) (A)
as to any Person that is an S-Corporation or substantially similar pass through
entity for Federal income tax purposes, the amount of all distributions for such
period made for the payment of taxes attributable to such Person's income, and
(B) as to any Person that is not an S-Corporation or substantially similar
pass-through entity for Federal income tax purposes, any provision for taxes
based on income or profits of such Person and its Restricted Subsidiaries for
such period, to the extent that such provision for taxes was included in
computing such Consolidated Net Income, plus (iii) consolidated interest expense
of the Company and its Restricted Subsidiaries for such period, whether paid or
accrued and whether or not capitalized (including, without limitation, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations), to the extent that any such expense
was deducted in computing such Consolidated Net Income, plus (iv) depreciation,
amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior period
other than debt issuance costs) and other non-cash expenses (excluding any such
non-cash expense to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of the Company and its Restricted Subsidiaries
for such period to the extent that such depreciation, amortization and other
non-cash expenses were deducted in computing such Consolidated Net Income, plus
(v) LIFO expense, plus (vi) prepayment penalties associated with the prepayment
of Indebtedness with the proceeds of the Senior Unsecured Debt to the extent any
such expense was deducted in computing such Consolidated Net Income, minus (vii)
non-cash items increasing such Consolidated Net Income for such period
including, without limitation, LIFO income, and capitalized interest on
Indebtedness owed to the Company or any Restricted Subsidiary by any owner of
its Capital Stock, and minus (viii) an amount equal to any extraordinary gain
plus any net gain realized in connection with an Asset Sale to the extent such
gains were included in computing such Consolidated Net Income, in each case, on
a Consolidated basis and determined in accordance with Generally Accepted
Accounting Principles.
"Consolidated Net Income" shall mean, with respect to the
Company and its Restricted Subsidiaries for any period, the aggregate of their
Net Income for such period, on a Consolidated basis, determined in accordance
with Generally Accepted Accounting Principles, reduced, as to any Person that is
an S-Corporation or substantially similar pass-through entity for Federal income
tax purposes, by the amount of distributions for such period made for the
payment of taxes attributable to such Person's income.
"Contingent Liabilities" of any Person shall mean, as of any
date, all obligations of such Person or of others for which such Person is
contingently liable, as obligor, guarantor, surety, accommodation party, partner
or in any other capacity, or in respect of which obligations such Person assures
a creditor against loss or agrees to take any action to prevent any such loss
(other than endorsements of negotiable instruments for collection in the
ordinary course of business), including without limitation all reimbursement
obligations of such Person in respect of any letters of credit, surety bonds or
similar obligations (including, without limitation, bankers acceptances) and all
obligations of such Person to advance funds to, or to purchase assets, property
or services from, any other Person in order to maintain the financial condition
of such other Person.
"Contractual Obligation" shall mean as to any Person, any
provision of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound.
"Default" shall mean any event or condition which might become
an Event of Default with notice or lapse of time or both.
"Dollars" and "$" shall mean the lawful money of the United
States of America.
"Effective Date" shall mean the effective date specified in the
final paragraph of this Agreement.
"Eligible Accounts Receivable" shall mean, as of any date,
those trade accounts receivable owned by the Company and the Guarantors which
are payable in Dollars and in which the Company and the Guarantors have granted
to the Agent for the benefit of the Banks and the Agent a first-priority
perfected security interest pursuant to the Security Agreements, valued at the
face amount thereof less sales, excise or similar taxes and less returns,
discounts, claims, credits and allowances of any nature at any time issued,
owing, granted, outstanding, available or claimed, but shall not include any
such account receivable (a) that is not a bona fide existing obligation created
by the sale and actual delivery of inventory, goods or other property or the
furnishing of services or other good and sufficient consideration to customers
of the Company and the Guarantors in the ordinary course of business, (b) that
is more than 45 days past due or, in the case of an account receivable owed to
the U.S. Beverage division of NWS-Illinois and in the case of an account
receivable owed by a Person located in Illinois, that is more than 60 days past
due, (c) that is subject to any dispute, contra-account, defense, offset or
counterclaim or any Lien (except those in favor of the Agent for the benefit of
the Banks under the Security Documents), or the inventory, goods, property,
services or other consideration of which such account receivable constitutes
proceeds is subject to any such Lien, (d) in respect of which the inventory,
goods, property, services or other consideration have been rejected or the
amount is in dispute, (e) that is due from any Affiliate or Subsidiary of the
Company, (f) that has been classified by the Company or a Guarantor as doubtful
or has otherwise failed to meet established or customary credit standards of the
Company or a Guarantor , (g) that is payable by any Person located outside the
United States (which shall not be deemed to include any territories of the
United States) and is not supported by letters of credit issued to the Agent by
commercial banks, and in form and substance, acceptable to the Agent, (h) with
respect to which any representation or warranty contained in Section 4.12 is
incorrect at any time, (i) that is payable by the United States or any of its
departments, agencies or instrumentalities or by any state or other governmental
entity, (j) that is payable by any Person as to which 50% or more of the
aggregate amount of such accounts receivable payable by such Person to the
Company and the Guarantors do not otherwise constitute Eligible Accounts
Receivable, (k) that is payable by any Person that is the subject of any
proceeding seeking to adjudicate it a bankrupt or insolvent or seeking
liquidation, winding up or reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief or protection of debtors or seeking the
appointment of a receiver, trustee, custodian or other similar official for it
or for any substantial part of its property, or that is not generally paying its
debts as they become due or has admitted in writing its inability to pay its
debts generally or has made a general assignment for the benefit of creditors,
(l) that is evidenced by a promissory note or other instrument, (m) that is
subordinate or junior in right or priority of payment to any other obligation or
claim, or (n) that for any other reason is at any time reasonably deemed by the
Agent to be ineligible.
"Eligible Inventory" shall mean, as of any date, that inventory
owned by the Company and the Guarantors that constitutes raw materials or
finished goods in which the Company and the Guarantors have granted to the Agent
for the benefit of the Banks a first-priority perfected security interest
pursuant to the Security Agreements, valued at the lower of cost or market on a
LIFO basis without deduction for any LIFO reserve, except for bottled water,
which is valued on a FIFO basis, but shall not include any such inventory (a)
that does not constitute raw materials or finished goods readily salable or
usable in the business of the Company and the Guarantors (b) that is located
outside the United States (which shall not be deemed to include any territories
of the United States), (c) that is subject to, or any accounts or other proceeds
resulting from the sale or other disposition thereof could be subject to, any
Lien (except those in favor of the Banks and the Agent under the Security
Documents), including any sale on approval or sale or return transaction or any
consignment, (d) that is not in the possession of the Company or a Guarantor
(unless it is in the possession of a bailee which has issued warehouse receipts
therefor that have been delivered to the Agent), (e) that is held for lease or
is the subject of any lease, (f) that is subject to any trademark, trade name or
licensing arrangement, or any law, rule or regulation, that could limit or
impair the ability of the Banks and the Agent to promptly exercise all rights of
the Banks and the Agent under the Security Documents, (g) if such inventory is
located on premises not owned by the Company or a Guarantor and the landlord or
other owner of such premises shall not have waived its distraint, lien and
similar rights with respect to such inventory and shall not have agreed to
permit the Banks and the Agent to enter such premises pursuant to a waiver and
agreement of such Person in favor of and in form and substance acceptable to the
Banks and the Agent, (h) with respect to which any insurance proceeds are not
payable to the Banks and the Agent as a loss payee or are payable to any loss
payee other than the Banks and the Agent or the Company or a Guarantor, (i) with
respect to which warehouse receipts have been issued but have not been delivered
to the Agent, or (j) that for any other reason is at any time reasonably deemed
by the Agent to be ineligible.
"Environmental Laws" at any date shall mean all provisions of
law, statute, ordinances, rules, regulations, judgments, writs, injunctions,
decrees, orders, awards and standards promulgated by the government of the
United States of America or any foreign government or by any state, province,
municipality or other political subdivision thereof or therein, or by any court,
agency, instrumentality, regulatory authority or commission of any of the
foregoing concerning the protection of, or regulating the discharge of
substances into, the environment.
"Equity Interests" shall mean Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations thereunder.
"ERISA Affiliate" shall mean, with respect to any Person, any
trade or business (whether or not incorporated) which, together with such Person
or any Subsidiary of such Person, would be treated as a single employer under
Section 414 of the Code and the regulations promulgated thereunder.
"Eurodollar Business Day" shall mean, with respect to any
Eurodollar Rate Loan, a day which is both a Business Day and a day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Eurodollar Interest Period" shall mean, with respect to any
Eurodollar Rate Loan, the period commencing on the day such Eurodollar Rate Loan
is made or converted to a Eurodollar Rate Loan and ending on the day which is
one, two or three months thereafter, as the Company may elect under Section 2.4
or 2.7, and each subsequent period commencing on the last day of the immediately
preceding Eurodollar Interest Period and ending on the day which is one, two or
three months thereafter, as the Company may elect under Section 2.4 or 2.7,
provided, however, that (a) any Eurodollar Interest Period which commences on
the last Eurodollar Business Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Eurodollar Business Day of the appropriate
subsequent calendar month, (b) each Eurodollar Interest Period which would
otherwise end on a day which is not a Eurodollar Business Day shall end on the
next succeeding Eurodollar Business Day or, if such next succeeding Eurodollar
Business Day falls in the next succeeding calendar month, on the next preceding
Eurodollar Business Day, and (c) no Eurodollar Interest Period which would end
after the Termination Date shall be permitted.
"Eurodollar Rate" shall mean, with respect to any Eurodollar
Rate Loan and the related Eurodollar Interest Period, the per annum rate that is
equal to the sum of:
the Applicable Margin, plus
the rate per annum obtained by dividing (i) the per annum rate of
interest at which deposits in Dollars for such Eurodollar Interest
Period and in an aggregate amount comparable to the amount of such
Eurodollar Rate Loan to be made by the Agent in its capacity as a Bank
hereunder are offered to the Agent or any of its Affiliates by other
prime banks in the London interbank market at approximately 11:00 a.m.
London time on the second Eurodollar Business Day prior to the first
day of such Eurodollar Interest Period by (ii) an amount equal to one
minus the stated maximum rate (expressed as a decimal) of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) that are specified on the
first day of such Eurodollar Interest Period by the Board of Governors
of the Federal Reserve System (or any successor agency thereto) for
determining the maximum reserve requirement with respect to
eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of such Board) maintained by a member bank
of such System;
all as conclusively determined by the Agent, such sum to be rounded up, if
necessary, to the nearest whole multiple of one one-hundredth of one percent
(1/100 of 1%).
"Eurodollar Rate Loan" shall mean any Loan which bears interest
at the Eurodollar Rate.
"Event of Default" shall mean any of the events or conditions
described in Section 6.1.
"Federal Funds Rate" shall mean the per annum rate that is
equal to the average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published by the Federal Reserve Bank of New York for such day, or, if such rate
is not so published for any day, the average of the quotations for such rates
received by the Agent from three federal funds brokers of recognized standing
selected by the Agent in its discretion;
all as conclusively determined by the Agent, such sum to be rounded up, if
necessary, to the nearest whole multiple of one one-hundredth of one percent
(1/100 of 1%), which Federal Funds Rate shall change simultaneously with any
change in such published or quoted rates.
"Funded Debt" as of any date, shall mean without duplication
all interest-bearing Indebtedness including but not limited to the capitalized
portion of all Capital Lease obligations, all as determined for the Company and
its Restricted Subsidiaries on a Consolidated basis.
"Funded Debt Coverage Ratio" shall mean the ratio of Funded
Debt as of the end of any fiscal quarter of the Company to Consolidated Cash
Flow for the period of the four fiscal quarters ending at the end of such fiscal
quarter. In the event that a Restricted Subsidiary shall have been acquired
during such period, the Consolidated Cash Flow used for this ratio shall include
the results of operations of such Restricted Subsidiary for such period.
"Generally Accepted Accounting Principles" shall mean generally
accepted accounting principles set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, as in effect
from time to time.
"Guaranties" shall mean the guaranties entered into by each of
the Guarantors for the benefit of the Agent and the Banks pursuant to Article 8
of this Agreement, as amended or modified from time to time.
"Guarantors" shall mean NWS-Indiana, NWS-Illinois,
NWS-Illinois, LLC, NWS Michigan, Inc., and each Person that enters into a
Guaranty pursuant to Section 5.1(g)(ii).
"Hazardous Materials" includes, without limitation, any
flammable explosives, radioactive materials, hazardous materials, hazardous
wastes, hazardous or toxic substances or related materials defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. Sections 9601, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Sections 1801, et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.) and
in the regulations adopted and publications promulgated pursuant thereto, or any
other federal, state or local government law, ordinance, rule or regulation.
"Hedging Obligations" shall mean, with respect to any Person,
the obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Indebtedness" of any Person shall mean, as of any date, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person as lessee under any Capital Lease, (c) all obligations which are secured
by any Lien existing on any asset or property of such Person whether or not the
obligation secured thereby shall have been assumed by such Person (to the extent
of such Lien if such obligation is not assumed), (d) all obligations of such
Person for the unpaid purchase price for goods, property or services acquired by
such Person, except for trade accounts payable arising in the ordinary course of
business that are not aged more than 45 days after the invoice date, (e) all
obligations of such Person to purchase goods, property or services where payment
therefor is required regardless of whether delivery of such goods or property or
the performance of such services is ever made or tendered (generally referred to
as "take or pay contracts"), and (f) all reimbursement obligations of such
Person in respect of letters of credit.
"Intercompany Note" shall mean the promissory note of a
Subsidiary evidencing Indebtedness of such Subsidiary to the Company, in
substantially the form of Exhibit B hereto and "Intercompany Notes" shall mean
all such promissory notes of all of the Restricted Subsidiaries, provided that
the aggregate principal amount of Intercompany Notes at any time outstanding
shall not exceed the aggregate principal amount of the Advances then
outstanding.
"Interest Coverage Ratio" shall mean with respect to the
Company and its Restricted Subsidiaries for any period, the ratio of their
Consolidated Cash Flow for such period to their Interest Expense for such
period. In addition, for purposes of making the computation referred to above,
(i) the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with Generally Accepted Accounting Principles, and to
operations or businesses disposed of prior to the date on which the event for
which the calculation of the Interest Coverage Ratio is made (the "Calculation
Date"), shall be excluded, and (ii) the Interest Expense attributable to
discontinued operations, as determined in accordance with Generally Accepted
Accounting Principles, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the obligations
giving rise to such Interest Expense will not be obligations of the Company or
any of its Restricted Subsidiaries following the Calculation Date.
"Interest Expense" shall mean, with respect to the Company and
its Restricted Subsidiaries for any period, the sum, without duplication, of (i)
their Consolidated interest expense for such period, whether paid or accrued
(including, without limitation, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all
payments associated with Capital Lease obligations, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments (if any) pursuant to Hedging
Obligations, but excluding interest accrued for such period on any NWSI
Shareholder Subordinated Note net of the amount of interest received in cash for
such period with respect to any Company Shareholder Note Receivable and (ii)
their Consolidated interest expense that was capitalized during such period, in
each case on a Consolidated basis and in accordance with Generally Accepted
Accounting Principles.
"Interest Payment Date" shall mean (a) with respect to any
Eurodollar Rate Loan, the last day of each Interest Period with respect to such
Eurodollar Rate Loan and (b) in all other cases, the last Business Day of each
month occurring after the date hereof, commencing with the first such Business
Day occurring after the date of this Agreement.
"Interest Period" shall mean any Eurodollar Interest Period.
"Investments" of any Person shall mean the purchase or other
acquisition of any Capital Stock of or debt securities of or any evidences of
Indebtedness of, any other Person, or the making of any loan or the advance of
any of its funds or property or the making of any other extension of credit to
or the making of any investment or the acquisition of any interest whatsoever
in, any other Person, or the incurrence of any Contingent Liability.
"Letter of Credit" shall mean a standby or commercial letter of
credit having a stated expiry date or a date upon which the draft must be
reimbursed not later than twelve months after the date of issuance and not later
than the fifth Business Day before the Termination Date issued by the Agent on
behalf of the Banks for the account of the Company or one of its Restricted
Subsidiaries under an application and related documentation acceptable to the
Agent requiring, among other things, immediate reimbursement by the Company to
the Agent in respect of all drafts or other demand for payment honored
thereunder and all expenses paid or incurred by the Agent relative thereto.
"Letter of Credit Advance" shall mean any issuance of a Letter
of Credit under Section 2.4 made pursuant to Section 2.1 in which each Bank
acquires a pro rata risk participation pursuant to Section 2.4(d).
"Letter of Credit Documents" shall have the meaning ascribed
thereto in Section 3.3(b).
"Lien" shall mean any pledge, assignment, hypothecation,
mortgage, security interest, deposit arrangement, option, conditional sale or
title retaining contract, sale and leaseback transaction, financing statement
filing, lessor's or lessee's interest under any lease, subordination of any
claim or right, or any other type of lien, charge, encumbrance, preferential
arrangement or other claim or right.
"Loan" shall mean any borrowing under Section 2.4 evidenced by
the Notes and made pursuant to Section 2.1. Any such Loan or portion thereof may
also be denominated as an Adjusted Base Rate Loan or a Eurodollar Rate Loan and
such Loans are referred to herein as "types" of Loans.
"Loan Documents" shall mean, collectively, this Agreement, the
Notes, the Security Documents and all agreements, instruments and documents
executed pursuant thereto at any time.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the business, assets, operations or condition (financial or otherwise) of
the Company and its Restricted Subsidiaries on a consolidated basis, (b) the
ability of the Company or any Guarantor to perform its obligations under any
Loan Document, or (c) the validity of enforceability of any Loan Document or the
rights or remedies of the Agent or the Banks under any Loan Document.
"Multiemployer Plan" shall mean any "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"Net Income" shall mean, for any period, the Consolidated net
income (or loss) of the Company and its Restricted Subsidiaries for such period
taken as a single accounting period, determined in accordance with Generally
Accepted Accounting Principles; provided that in determining Consolidated Net
Income there shall be excluded, without duplication: (a) the income of any
Person in which any Person other than the Company or a Restricted Subsidiary of
the Company has a joint interest or partnership interest, except to the extent
of the amount of dividends or other distributions actually paid to the Company
or each Restricted Subsidiary by such Person during such period, (b) the
proceeds of any insurance policy, (c) gains from the sale, exchange, transfer or
other disposition of property or assets not in the ordinary course of business
of the Company and its Restricted Subsidiaries and related tax effects in
accordance with Generally Accepted Accounting Principles, and (d) any other
extraordinary or non-recurring gains of the Company or any of its Restricted
Subsidiaries or other income which is not from the continuing operations of the
Company and its Restricted Subsidiaries, and related tax effects, in accordance
with Generally Accepted Accounting Principles.
"Non-Recourse Debt" shall mean Indebtedness (i) as to which
neither the Company nor any of its Restricted Subsidiaries (a) provides credit
support of any kind (including any undertaking, agreement or instrument that
would constitute Indebtedness), (b) is directly or indirectly liable (as a
guarantor or otherwise), or (c) constitutes the lender and (ii) as to which the
lenders have been notified in writing that they will not have any recourse to
the stock or assets of the Company or any of its Restricted Subsidiaries.
"Note" shall mean any promissory note of the Company evidencing
the Loans, in substantially the form of Exhibit C hereto as amended or modified
from time to time and together with any promissory note or notes issued in
exchange or replacement therefor.
"NWS-Illinois" shall mean NWS, Inc., an Illinois corporation.
"NWS-Indiana" shall mean National Wine & Spirits Corporation,
an Indiana corporation.
"NWSI Shareholder Subordinated Note" shall mean any note
payable to any shareholder of the Company by NWS, Inc. that is outstanding on
the date of this Agreement and (i) matures on or after February 1, 2004, (ii)
does not require payment of cash interest or redemption prior to maturity, and
(iii) that is Subordinated Debt.
"Overdue Rate" shall mean (a) in respect of principal of
Adjusted Base Rate Loans, a rate per annum that is equal to the sum of three
percent (3%) per annum plus the Adjusted Base Rate, (b) in respect of principal
of Eurodollar Rate Loans, a rate per annum that is equal to the sum of three
percent (3%) per annum plus the per annum rate in effect thereon until the end
of the then current Interest Period for such Loan and, thereafter, a rate per
annum that is equal to the sum of three percent (3%) per annum plus the Adjusted
Base Rate, and (c) in respect of other amounts payable by the Company hereunder
(other than interest), a per annum rate that is equal to the sum of three
percent (3%) per annum plus the Adjusted Base Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and
any entity succeeding to any or all of its functions under ERISA.
"Permitted Liens" shall mean Liens permitted by Section 5.2(d)
hereof.
"Person" shall include an individual, a corporation, an
association, a partnership, a trust or estate, a joint stock company, a limited
liability company, an unincorporated organization, a joint venture, a trade or
business (whether or not incorporated), a government (foreign or domestic) and
any agency or political subdivision thereof, or any other entity.
"Plan" shall mean, with respect to any Person, any pension plan
(including a Multiemployer Plan) subject to Title IV of ERISA or to the minimum
funding standards of Section 412 of the Code which has been established or
maintained by such Person, any Subsidiary of such Person or any ERISA Affiliate,
or by any other Person if such Person, any Subsidiary of such Person or any
ERISA Affiliate could have liability with respect to such pension plan.
"Pledge Agreement" shall mean each pledge agreement entered
into by the Company in favor of the Agent for the benefit of the Banks pursuant
to this Agreement in substantially the form of Exhibit D hereto, as amended or
modified from time to time.
"Prohibited Transaction" shall mean any transaction involving
any Plan which is proscribed by Section 406 of ERISA or Section 4975 of the
Code.
"Reportable Event" shall mean a reportable event as described
in Section 4043(b) of ERISA including those events as to which the thirty (30)
day notice period is waived under Part 2615 of the regulations promulgated by
the PBGC under ERISA.
"Required Banks" shall mean Banks holding not less than (i)
fifty-one percent (51%) of the aggregate principal amount of the Advances then
outstanding or (ii) fifty-one percent (51%) of the Commitments if no Advances
are then outstanding.
"Requirement of Law" shall mean as to any Person, the
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property to
which such Person or any of its property is subject.
"Restricted Payment" shall mean with respect to the Company or
any Restricted Subsidiary, any dividend, payment or other distribution in
respect of any class of its Capital Stock or any dividend, payment or
distribution in connection with the redemption, purchase, retirement or other
acquisition, directly or indirectly, of any shares of its Capital Stock other
than such dividends, payments or other distributions to the extent payable
solely in shares of the Capital Stock of the Company or to the extent payable to
the Company by a Restricted Subsidiary of the Company.
"Restricted Subsidiary" of a Person shall mean any Subsidiary
of the referent Person that is not an Unrestricted Subsidiary.
"Security Agreement" shall mean each security agreement entered
into by the Company or any Guarantor for the benefit of the Agent and the Banks
pursuant to this Agreement in substantially the form of Exhibit E hereto, as
amended or modified from time to time.
"Security Documents" shall mean, collectively, the Pledge
Agreement, the Security Agreements, and the Guaranties and all other related
agreements and documents, including financing statements and similar documents,
delivered pursuant to this Agreement or otherwise entered into by any Person to
secure the Advances.
"Senior Unsecured Debt" shall mean an aggregate amount of not
less than $100,000,000 of senior unsecured notes issued by the Company on
January 25, 1999 and maturing in 2009.
"Subordinated Debt" of any Person shall mean, as of any date,
that Indebtedness of such Person for borrowed money which is expressly
subordinate and junior in right and priority of payment to the Advances and
other Indebtedness of such Person to the Banks in manner and by agreement
satisfactory in form and substance to the Agent including without limitation
maturities, covenants, defaults, rates and fees acceptable to the Agent.
"Subsidiary" of any Person shall mean any other Person (whether
now existing or hereafter organized or acquired) in which (other than directors
qualifying shares required by law) at least a majority of the securities or
other ownership interests of each class having ordinary voting power or
analogous right (other than securities or other ownership interests which have
such power or right only by reason of the happening of a contingency), at the
time as of which any determination is being made, are owned, beneficially and of
record, by such Person or by one or more of the other Restricted Subsidiaries of
such Person or by any combination thereof. Unless otherwise specified, reference
to "Subsidiary" shall mean a Subsidiary of the Company.
"Termination Date" shall mean the earlier to occur of (a)
January 25, 2004 and (b) the date on which the Commitments shall be terminated
pursuant to Section 2.2 or 6.2.
"Unrestricted Subsidiary" shall mean (i) any Subsidiary of the
Company (other than the Guarantors or any successor to any of them) that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a
resolution of such Board; but only to the extent that such Subsidiary: (a) has
no Indebtedness other than Non-Recourse Debt; (b) is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company; (c) is a Person with respect to which
neither the Company nor any of its Restricted Subsidiaries has any direct or
indirect obligation (x) to subscribe for additional Equity Interests or (y) to
maintain or preserve such Person's financial condition or to cause such Person
to achieve any specified levels of operating results; (d) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness of
the Company or any of its Restricted Subsidiaries; and (e) has at least one
director on its board of directors that is not a director or executive officer
of the Company or any of its Restricted Subsidiaries and has at least one
executive officer that is not a director or executive officer of the Company or
any of its Restricted Subsidiaries. Any such designation by the Board of
Directors shall be evidenced to the Agent by filing with the Agent a certified
copy of the resolution of such Board giving effect to such designation and an
officers' certificate certifying that such designation complied with the
foregoing conditions and did not violate any covenant of this Agreement. If, at
any time, any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of the indenture with respect to the Senior
Unsecured Debt and any Indebtedness of such Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary of the Company as of such date (and, if such
Indebtedness is not permitted to be incurred as of such date under any covenant
herein, the Company shall be in default of such covenant). The Board of
Directors of the Company may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that such designation shall be deemed to
be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of
any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is permitted under
the covenant contained in this Agreement, (ii) no Default or Event of Default
would be in existence following such designation.
"Year 2000 Issues" shall mean anticipated costs, problems and
uncertainties associated with the inability of certain computer applications to
effectively handle data including dates on and after January 1, 2000, as such
inability affects the business, operations and financial condition of the
Company and its Restricted Subsidiaries and of the Company's and its
Subsidiaries' material customers, suppliers and vendors.
"Year 2000 Program" is defined in Section 4.17.
Other Definitions; Rules of Construction. As used herein, the
terms "Agent", "Banks", "Company" and "this Agreement" shall have the respective
meanings ascribed thereto in the introductory paragraph of this Agreement, and
the term "Guaranteed Obligations" shall have the meaning ascribed thereto in
Section 8.1 of this Agreement. Such terms, together with the other terms defined
in Section 1.1, shall include both the singular and the plural forms thereof and
shall be construed accordingly. All computations required hereunder and all
financial terms used herein shall be made or construed in accordance with
Generally Accepted Accounting Principles unless such principles are inconsistent
with the express requirements of this Agreement; provided that, if the Company
notifies the Agent that the Company wishes to amend any covenant in Article V to
eliminate the effect of any change in Generally Accepted Accounting Principles
in the operation of such covenant (or if the Agent notifies the Company that the
Required Banks wish to amend Article V for such purpose), then the Company's
compliance with such covenant shall be determined on the basis of Generally
Accepted Accounting Principles in effect immediately before the relevant change
in Generally Accepted Accounting Principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Banks. Use of the terms "herein", "hereof", and
"hereunder" shall be deemed references to this Agreement in its entirety and not
to the Section or clause in which such term appears. References to "Sections"
and "subsections" shall be to Sections and subsections, respectively, of this
Agreement unless otherwise specifically provided.
ARTICLE 2.
THE COMMITMENTS AND THE ADVANCES
Commitment of the Banks.
Advances. Each Bank agrees, for itself only, subject to the terms and
conditions of this Agreement, to make Loans to the Company pursuant to Section
2.4 and Section 3.3 and to participate in Letter of Credit Advances to the
Company pursuant to Section 2.4, from time to time from and including the
Effective Date to but excluding the Termination Date, not to exceed in aggregate
principal amount at any time outstanding the amount determined pursuant to
Section 2.1(b).
Limitation on Amount of Advances. Notwithstanding anything in this
Agreement to the contrary, (i) the aggregate principal amount of the Advances
made by any Bank at any time outstanding shall not exceed the amount of its
respective Commitment as of the date any such Advance is made, provided,
however, that the aggregate principal amount of Letter of Credit Advances
outstanding at any time shall not exceed $5,000,000, and (ii) the aggregate
principal amount of all Advances at any time outstanding shall not exceed the
amount of the Borrowing Base as of the date of the Borrowing Base Certificate
dated or next preceding the date any such Advance is made.
Termination and Reduction of Commitments.
The Company shall have the right to terminate or reduce the Commitments at
any time and from time to time at its option, provided that (i) the Company
shall give notice of such termination or reduction to the Agent (with sufficient
executed copies for each Bank) specifying the amount and effective date thereof,
(ii) each partial reduction of the Commitments shall be in a minimum amount of
$5,000,000 and in an integral multiple of $1,000,000 and shall reduce the
Commitments of all of the Banks proportionately in accordance with the
respective commitment amounts for each such Bank set forth in the signature
pages hereof next to name of each such Bank, (iii) no such termination or
reduction shall be permitted with respect to any portion of the Commitments as
to which a request for an Advance pursuant to Section 2.4 is then pending and
(iv) the Commitments may not be terminated if any Advances are then outstanding
and may not be reduced below the principal amount of Advances then outstanding.
The Commitments or any portion thereof terminated or reduced pursuant to this
Section 2.2, whether optional or mandatory, may not be reinstated.
For purposes of this Agreement, a Letter of Credit advance (i) shall be
deemed outstanding in an amount equal to the sum of the maximum amount available
to be drawn under the related Letter of Credit on or after the date of
determination and on or before the stated expiry date thereof plus the amount of
any draws under such Letter of Credit that have not been reimbursed as provided
in Section 3.3 and (ii) shall be deemed outstanding at all times on and before
such stated expiry date or such earlier date on which all amounts available to
be drawn under such Letter of Credit have been fully drawn, and thereafter until
all related reimbursement obligations have been paid pursuant to Section 3.3. As
provided in Section 3.3, upon each payment made by the Agent in respect of any
draft or other demand for payment under any Letter of Credit, the amount of any
Letter of Credit Advance outstanding immediately prior to such payment shall be
automatically reduced by the amount of each Loan deemed advanced in respect of
the related reimbursement obligation of the Company.
Fees.
The Company agrees to pay to each Bank a commitment fee on the daily
average unused amount of its respective Commitment, for the period from the
Effective Date to but excluding the Termination Date, at a rate equal to
one-half of one percent (1/2 of 1%) per annum during the period ending on the
30th day of April, 1999, and thereafter at a per annum rate equal to the
Applicable Margin. Accrued commitment fees shall be payable quarterly in arrears
on the last Business Day of each March, June, September and December, commencing
on the first such Business Day occurring after the Effective Date, and on the
Termination Date.
The Company agrees to pay to the Banks a facility fee in the amount of
$150,000. Such facility fee shall be payable on or prior to the Effective Date.
On or before the date of issuance of any Letter of Credit, the Company
agrees (i) to pay to the Banks in the case of a standby Letter of Credit a fee
computed at a per annum rate equal to the Applicable Margin for Eurodollar Rate
Loans in effect at the time of issuance of such Letter of Credit for the period
from and including such date to and including the stated expiry date of such
Letter of Credit, and in the case of a commercial Letter of Credit equal to
one-half of one percent (1/2 of 1%), in both cases of the maximum amount
available to be drawn under such Letter of Credit, and (ii) to pay an additional
fee to the Agent for its own account computed at a per annum rate equal to
one-quarter of one percent (1/4 of 1%) on such maximum amount. Such fees are
nonrefundable and the Company shall not be entitled to any rebate of any portion
thereof if such Letter of Credit does not remain outstanding through its stated
expiry date or for any other reason. The Company further agrees to pay to the
Agent, on demand, such other customary administrative fees, charges and expenses
of the Agent in respect of the issuance, negotiation, acceptance, amendment,
transfer and payment of such Letter of Credit or otherwise payable pursuant to
the application and related documentation under which such Letter of Credit is
issued.
The Company agrees to pay to the Agent an agency fee for its services as
Agent under this Agreement in such amounts as may from time to time be agreed
upon by the Company and the Agent.
Disbursement of Advances.
The Company shall give the Agent telephonic notice of its request for each
Advance not later than 2:00 p.m. Detroit time (i) three Eurodollar Business Days
prior to the date such Advance is requested to be made if such Advance is to be
made as a Eurodollar Rate Loan, (ii) five Business Days prior to the date any
Letter of Credit Advance is requested to be made, and (iii) on the same Business
Day that such Advance is requested to be made in all other cases, which notice
shall specify whether a Eurodollar Rate Loan or Adjusted Base Rate Loan or a
Letter of Credit Advance is requested and, in the case of each requested
Eurodollar Rate Loan, the Interest Period to be initially applicable to such
Loan and, in the case of each Letter of Credit Advance, such information as may
be necessary for the issuance thereof by the Agent. The Agent, not later than
the date of any requested Adjusted Base Rate Loan and not later than the
Business Day next succeeding the day such notice is given with respect to a
Letter of Credit Advance and not later than the day such notice is given with
respect to a Eurodollar Rate Loan, shall provide notice of such requested
Advance to each Bank, provided that in the case of Adjusted Base Rate Loans
where the Agent elects to settle with the Banks weekly instead of at the time of
each such Loan, the Agent shall provide notice of such Loans on the weekly
settlement date next following the dates on which they are requested. Subject to
the terms and conditions of this Agreement, the proceeds of each such requested
Loan shall be made available to the Company by depositing the proceeds thereof
in immediately available funds, in an account maintained and designated by the
Company at the principal office of the Agent. Subject to the terms and
conditions of this Agreement, the Agent shall, on the date any Letter of Credit
Advance is requested to be made, issue the related Letter of Credit on behalf of
the Banks for the account of the Company. Notwithstanding anything herein to the
contrary, the Agent may decline to issue any requested Letter of Credit on the
basis that the beneficiary, the purpose of issuance or the terms or the
conditions of drawing are unacceptable to it in its reasonable discretion.
Each Bank, on the date any Borrowing in the form of a Loan is requested to
be made, or on the date the Agent requests such Bank to make available its share
of such Borrowing pursuant to Section 2.4(c), shall make its pro rata share of
such Borrowing available in immediately available, freely transferable, cleared
funds for disbursement to the Company or application by the Agent to a reduction
of its Loans made pursuant to Section 2.4(c), pursuant to the terms and
conditions of this Agreement at the principal office of the Agent. Unless the
Agent shall have received notice from any Bank prior to the date such Borrowing
is requested to be made under this Section 2.4 that such Bank will not make
available to the Agent such Bank's pro rata portion of such Borrowing, the Agent
may assume that such Bank has made such portion available to the Agent on the
date such Borrowing is requested to be made in accordance with this Section 2.4.
If and to the extent such Bank shall not have so made such pro rata portion
available to the Agent, the Agent may (but shall not be obligated to) make such
amount available to the Company, and such Bank and the Company severally agree
to pay to the Agent forthwith on demand such amount together with interest
thereon, for each day from the date such amount is made available to the Company
by the Agent until the date such amount is repaid to the Agent, at the Federal
Funds Rate. If such Bank shall pay such amount to the Agent together with
interest, such amount so paid shall constitute a Loan by such Bank as a part of
such the related Borrowing for purposes of this Agreement. The failure of any
Bank to make its pro rata portion of any such Borrowing available to the Agent
shall not relieve any other Bank of its obligations to make available its pro
rata portion of such Borrowing on the date such Borrowing is requested to be
made, but no Bank shall be responsible for failure of any other Bank to make
such pro rata portion available to the Agent on the date of any such Borrowing.
Administrative Convenience Loans.
(i) With respect to any Adjusted Base Rate Loan requested on a day other
than the day chosen by the Agent for weekly settlements with the Banks, the
Agent may elect, for administrative convenience, to make such requested Loan
itself and to defer until the next following weekly settlement date notifying
the Banks of such requested Loan. Each Bank's Commitment shall be deemed
utilized by an amount equal to such Bank's pro rata share (based on such Bank's
Commitment) of each such Loan made solely by the Agent for purposes of
determining the amount of Advances required to be made by such Bank, but no
Bank's Commitment, other than the Agent's, shall be deemed utilized for purposes
of determining commitment fees under Section 2.3(a). Each Bank shall be
absolutely and unconditionally obligated to fund its pro rata share (based on
such Bank's Commitment) of any such Loan or, if applicable, purchase a
participating interest in any such Loan pursuant to Section 2.4(c)(ii) and such
obligation shall not be affected by any circumstance, including, without
limitation, (A) any set-off, counterclaim, recoupment, defense or other right
which such Bank has or may have against the Agent or anyone else for any reason
whatsoever; (B) the occurrence or continuance of a Default or an Event of
Default, subject to Section 2.4(c)(ii); (C) any adverse change in the condition
(financial or otherwise) of the Company or any of its Restricted Subsidiaries;
(D) any breach of this Agreement by the Company or any of the Guarantors or any
other Bank; or (E) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing (including without limitation the
Company's failure to satisfy any conditions contained in Article II or any other
provision of this Agreement).
(ii) If, for any reason (including without limitation as a result of the
occurrence of an Event of Default with respect to the Company pursuant to
Section 6.1(h)), Loans may not be made by the Banks as described in Section
2.4(c)(i), then (A) the Company agrees that each Loan not paid pursuant to
Section 2.4(c)(i) shall bear interest, payable on demand by the Agent, at the
Overdue Rate, and (B) effective on the date each such Loan would otherwise have
been made by it, each Bank severally agrees that it shall unconditionally and
irrevocably, without regard to the occurrence of any Default or Event of
Default, in lieu of deemed disbursement of loans, to the extent of such Bank's
Commitment, purchase a participating interest in each such Loan by paying its
participation percentage thereof. Each Bank will immediately transfer to the
Agent, in same day funds, the amount of its participation. Each Bank shall share
on a pro rata basis (calculated by reference to its Commitment) in any interest
which accrues thereon and in all repayments thereof. If and to the extent that
any Bank shall not have so made the amount of such participating interest
available to the Agent, such Bank and the Company severally agree to pay to the
Agent forthwith on demand such amount together with interest thereon, for each
day from the date of demand by the Agent until the date such amount is paid to
the Agent, at (x) in the case of the Company, the interest rate specified above
and (y) in the case of such Bank, the Federal Funds Rate.
All Loans made under this Section 2.4 shall be evidenced by the Notes, and
all such Loans shall be due and payable and bear interest as provided in Article
III. Each Bank is hereby authorized by the Company to record on the schedule
attached to the Notes, or in its books and records, the date, amount and type of
each Loan and the duration of the related Interest Period (if applicable), the
amount of each payment or prepayment of principal thereon, and the other
information provided for on such schedule, which schedule or books and records,
as the case may be, shall constitute prima facie evidence of the information so
recorded, provided, however, that failure of any Bank to record, or any error in
recording, any such information shall not relieve the Company of its obligation
to repay the outstanding principal amount of the Loans, all accrued interest
thereon and other amounts payable with respect thereto in accordance with the
terms of the Notes and this Agreement. Subject to the terms and conditions of
this Agreement, the Company may borrow Loans under this Section 2.4 and under
Section 3.3, prepay Loans pursuant to Section 3.1 and reborrow Loans under this
Section 2.4 and under Section 3.3.
Nothing in this Agreement shall be construed to require or authorize any
Bank to issue any Letter of Credit, it being recognized that the Agent has the
sole obligation under this Agreement to issue Letters of Credit on behalf of the
Banks, and the Commitment of each Bank with respect to Letter of Credit Advances
is expressly conditioned upon the Agent's performance of such obligations. Upon
such issuance by the Agent, each Bank shall automatically acquire a pro rata
risk participation interest in such Letter of Credit Advance based on the amount
of its respective Commitment. If the Agent shall honor a draft or other demand
for payment presented or made under any Letter of Credit, the Agent shall
provide notice thereof to each Bank on the date such draft or demand is honored
unless the Company shall have satisfied its reimbursement obligation under
Section 3.3 by payment to the Agent on such date. Each Bank, on such date, shall
make its pro rata share of the amount paid by the Agent available in immediately
available funds at the principal office of the Agent for the account of the
Agent. If and to the extent such Bank shall not have made such pro rata portion
available to the Agent, such Bank and the Company severally agree to pay to the
Agent forthwith on demand such amount together with interest thereon, for each
day from the date such amount was paid by the Agent until such amount is so made
available to the Agent at a per annum rate equal to the Federal Funds Rate. If
such Bank shall pay such amount to the Agent together with such interest, such
amount so paid shall constitute a Loan by such Bank as part of the Borrowing
disbursed in respect of the reimbursement obligation of the Company under
Section 3.3 for purposes of this Agreement. The failure of any Bank to make its
pro rata portion of any such amount paid by the Agent available to the Agent
shall not relieve any other Bank of its obligation to make available its pro
rata portion of such amount, but no Bank shall be responsible for failure of any
other Bank to make such pro rata portion available to the Agent.
Conditions for First Disbursement. The obligation of the Banks to make the
first Advance hereunder is subject to receipt by each Bank and the Agent of the
following documents and completion of the following matters, in form and
substance satisfactory to each Bank and the Agent:
Charter Documents. Certificates of recent date of the appropriate authority
or official of the Company's and each Guarantor's respective state of
incorporation or organization (listing all charter documents of the Company and
each Guarantor, respectively, on file in that office if such listing is
available) and certifying as to the good standing and corporate existence of the
Company and each Guarantor that is a corporation, and as to the existence and
status of each Guarantor that is a limited liability company, together with
copies of such charter documents of the Company and each Guarantor, certified as
of a recent date by such authority or official and certified as true and correct
as of the Effective Date by a duly authorized officer of the Company;
By-Laws and Corporate Authorizations. Copies of the by-laws or operating
agreement of the Company and each Guarantor together with all authorizing
resolutions and evidence of other corporate or limited liability company action
taken by the Company and each Guarantor to authorize the execution, delivery and
performance by the Company and each Guarantor of this Agreement, the Notes and
the Security Documents to which the Company and such Guarantor, respectively, is
a party and the consummation by the Company and such Guarantor, respectively, of
the transactions contemplated hereby, certified as true and correct as of the
Effective Date by a duly authorized officer of the Company and each Guarantor,
respectively;
Incumbency Certificate. Certificates of incumbency of the Company and each
Guarantor containing, and attesting to the genuineness of, the signatures of
those officers, members or managers authorized to act on behalf of the Company
and such Guarantor in connection with this Agreement, the Notes and the Security
Documents to which the Company or such Guarantor is a party and the consummation
by the Company and such Guarantor of the transactions contemplated hereby,
certified as true and correct as of the Effective Date by a duly authorized
officer of the Company and each Guarantor;
Notes. The Notes duly executed on behalf of the Company for each Bank;
Security Documents. The Security Documents duly executed on behalf of the
Company and each Guarantor, as the case may be, granting to the Banks and the
Agent the collateral and security intended to be provided pursuant to Section
2.11, together with:
Recording, Filing, Etc. Evidence of the recordation, filing and other
action (including payment of any applicable taxes or fees) in such jurisdictions
as the Agent may deem necessary or appropriate with respect to the Security
Documents, including the filing of financing statements and similar documents
which the Agent may deem necessary or appropriate to create, preserve or perfect
the liens, security interests and other rights intended to be granted to the
Banks or the Agent thereunder, together with Uniform Commercial Code record
searches in such offices as the Agent may request;
Leased Property; Landlord Waivers. A schedule setting forth all real
property leased by the Company and each Guarantor in which inventory is located,
together with copies of the related leases, certified as true and correct as of
the Effective Date by a duly authorized officer of the Company, and an agreement
of each landlord under such leases, in form and substance acceptable to the
Banks and the Agent, waiving its distraint, lien and similar rights with respect
to any property subject to the Security Documents and agreeing to permit the
Banks and the Agent to enter such premises in connection therewith;
Casualty and Other Insurance. Evidence that the casualty and other
insurance required pursuant to Section 5.1(c) of this Agreement and pursuant to
each Security Agreement is in full force and effect; and
Intercompany Notes and Security Agreements. The original copies of the
Intercompany Notes, and copies of security agreements and financing statements
given by the Guarantors to the Company granting to the Company security
interests in their accounts and inventory, that are expressly made junior to the
security interest of the Agent in such assets, and that in the case of such
financing statements show the assignment by the Company of its rights as secured
party to the Agent.
(f) Subordination Agreements with respect to Shareholder Subordinated Debt.
Subordination agreements executed by Xxxxx LaCrosse and Xxxxx Xxxxxxxx
subordinating to the Loans all Indebtedness to them for borrowed money of the
company and the Guarantors.
(g) Subrogation and Contribution Agreement. A subrogation and contribution
agreement in form satisfactory to the Agent executed by the Guarantors.
(h) Legal Opinions. The favorable written opinion of Ice Xxxxxx Xxxxxxx &
Xxxx, counsel for the Company and each Guarantor in substantially the form of
Exhibit F hereto.
(i) Consents, Approvals, Etc. Copies of all governmental and
nongovernmental consents, approvals, authorizations, declarations, registrations
or filings, if any, required on the part of the Company or any Guarantor in
connection with the execution, delivery and performance of this Agreement, the
Notes, the Security Documents or the transactions contemplated hereby or as a
condition to the legality, validity or enforceability of this Agreement, the
Notes or any of the Security Documents, certified as true and correct and in
full force and effect as of the Effective Date by a duly authorized officer of
the Company, or, if none are required, a certificate of such officer to that
effect;
(j) Fees. The facility fee described in Section 2.3(b); and
(k) Senior Unsecured Debt Issue and Repayment of Indebtedness. The Company
shall have successfully placed the issue of Senior Unsecured Debt and shall have
applied the proceeds thereof and of Loans under this Agreement to repay all
Indebtedness and other obligations outstanding under the Second Amended and
Restated Credit Agreement among NWS-Indiana, certain lenders, NBD Bank and NBD
Bank, N.A. as Agents dated September 2, 1997 and all Indebtedness and other
obligations of NWS-Illinois and NWS-Illinois, LLC under the Second Amended and
Restated Credit Agreement among NWS-Illinois certain lenders and NBD Bank and
NBD Bank, N.A., as Agents, dated as of September 2, 1997, and other debt
described on Schedule 2.5(k) hereof; and the Banks shall have received certified
copies of the documents evidencing the Senior Unsecured Debt issue.
(l) Solvency Certificate. A Solvency Certificate from each of the Company
and the Guarantors in a form acceptable to the Agent.
(m) Year 2000. Information reasonably satisfactory to the Agent and the
Required Banks regarding the Company's Year 2000 Program.
(n) Other. Such other documents, and completion of such other matters, as
the Agent may reasonably request.
Further Conditions for Disbursements. The obligation of the Banks to make
any Advance (including the first Advance), or any continuation or conversion
under Section 2.7 is further subject to the satisfaction of the following
conditions precedent:
The representations and warranties contained in Article 4 hereof and in the
Security Documents shall be true and correct on and as of the date such Advance
is made (both before and after such Advance is made) as if such representations
and warranties were made on and as of such date;
No Default or Event of Default shall exist or shall have occurred and be
continuing on the date such Advance is made (whether before or after such
Advance is made); The Agent shall have received the latest Borrowing Base
Certificate required pursuant to Section 5.1(d)(v) prior to the date such
Advance is made; and
In the case of any Letter of Credit Advance, the Company shall have
delivered to the Agent an application for the related Letter of Credit and other
related documentation requested by and acceptable to the Agent appropriately
completed and duly executed on behalf of the Company.
The Company shall be deemed to have made a representation and warranty to the
Banks at the time of the making of, and the continuation or conversion of, each
Advance to the effects set forth in clauses (a) and (b) of this Section 2.6. For
purposes of this Section 2.6 the representations and warranties contained in
Section 4.6 hereof shall be deemed made with respect to both the financial
statements referred to therein and the most recent financial statements
delivered pursuant to Section 5.1(d)(ii) and (iii).
Subsequent Elections as to Loans. The Company may elect (a) to
continue a Eurodollar Rate Loan, or a portion thereof, as a Eurodollar Rate Loan
or (b) may elect to convert a Eurodollar Rate Loan, or a portion thereof, to a
Loan of another type or (c) elect to convert an Adjusted Base Rate Loan, or a
portion thereof, to a Eurodollar Rate Loan in each case by giving telephonic
notice thereof to the Agent not later than 2:00 p.m. Detroit time four
Eurodollar Business Days prior to the date any such continuation of or
conversion to a Eurodollar Rate Loan is to be effective and not later than 2:00
p.m. Detroit time one Business Day prior to the date such continuation or
conversion is to be effective in all other cases, provided that an outstanding
Eurodollar Rate Loan may only be converted on the last day of the then current
Interest Period with respect to such Loan, and provided, further, if a
continuation of a Loan as, or a conversion of a Loan to, a Eurodollar Rate Loan
is requested, such notice shall also specify the Interest Period to be
applicable thereto upon such continuation or conversion. The Agent, not later
than the Business Day next succeeding the day such notice is given, shall
provide notice of such election to the Banks. If the Company shall not timely
deliver such a notice with respect to any outstanding Eurodollar Rate Loan, the
Company shall be deemed to have elected to convert such Eurodollar Rate Loan to
an Adjusted Base Rate Loan on the last day of the then current Interest Period
with respect to such Loan.
Limitation of Requests and Elections. Notwithstanding any
other provision of this Agreement to the contrary, if, upon receiving a request
for a Eurodollar Rate Loan pursuant to Section 2.4, or a request for a
continuation of a Eurodollar Rate Loan as a Eurodollar Rate Loan of the then
existing type, or a request for a conversion of an Adjusted Base Rate Loan to a
Eurodollar Rate Loan pursuant to Section 2.7, (a) in the case of any Eurodollar
Rate Loan, deposits in Dollars for periods comparable to the Interest Period
elected by the Company are not available to any Bank in the London interbank
market, or (b) the Eurodollar Rate will not adequately and fairly reflect the
cost to any Bank of making, funding or maintaining the related Eurodollar Rate
Loan, or (c) by reason of national or international financial, political or
economic conditions or by reason of any applicable law, treaty or other
international agreement, rule or regulation (whether domestic or foreign) now or
hereafter in effect, or the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by any Bank with any guideline, request or directive of
such authority (whether or not having the force of law), including without
limitation exchange controls, it is impracticable, unlawful or impossible for,
or shall limit or impair the ability of, (i) any Bank to make or fund the
relevant Loan or to continue such Loan as a Loan of the then existing type or to
convert a Loan to such a Loan or (ii) the Company to make or any Bank to receive
any payment under this Agreement at the place specified for payment hereunder or
to freely convert any amount paid into Dollars at market rates of exchange or to
transfer any amount paid or so converted to the address of its principal office
specified in Section 9.2, then the Company shall not be entitled, so long as
such circumstances continue, to request a Loan of the affected type pursuant to
Section 2.4 or a continuation of or conversion to a Loan of the affected type
pursuant to Section 2.7. In the event that such circumstances no longer exist,
the Banks shall again consider requests for Loans of the affected type pursuant
to Section 2.4, and requests for continuations of and conversions to Loans of
the affected type pursuant to Section 2.7.
Minimum Amounts; Limitation on Number of Loans; Etc. Except
for (a) Advances which exhaust the entire remaining amount of the Commitments,
and (b) payments required pursuant to Section 3.1(c) or Section 3.8, each
Eurodollar Rate Loan and each continuation of or conversion to a Eurodollar Rate
Loan pursuant to Section 2.7 and each prepayment thereof shall be in a minimum
amount of $3,000,000 and in an integral multiple of $1,000,000, and each
Adjusted Base Rate Loan and each continuation of or conversion to an Adjusted
Base Rate Loan shall be in a minimum amount of $250,000 and in an integral
multiple of $50,000. The aggregate number of Eurodollar Rate Loans outstanding
at any one time under this Agreement may not exceed five.
Borrowing Base Adjustments. The Company agrees that if at any
time any trade account receivable or any inventory of the Company fails to
constitute an Eligible Account Receivable or Eligible Inventory, as the case may
be, for any reason, the Agent may, at any time and notwithstanding any prior
classification of eligibility, classify such asset or property as ineligible and
exclude the same from the computation of the Borrowing Base without in any way
impairing the rights of the Banks and the Agent in and to the same under the
Security Agreement.
Security and Collateral. To secure the payment when due of the
Notes and all other obligations of the Company under this Agreement to the Banks
and the Agent, the Company shall execute and deliver, or cause to be executed
and delivered, to the Banks and the Agent Security Documents granting the
following:
Security interests in all present and future accounts and inventory of the
Company.
Security interests in all present and future accounts and inventory of the
Guarantors.
Security interests in the Intercompany Notes and in the collateral securing
such Intercompany Notes.
ARTICLE 3.
PAYMENTS AND PREPAYMENTS OF ADVANCES
Principal Payments and Prepayments.
Unless earlier payment is required under this Agreement, the Company shall
pay to the Banks on the Termination Date the entire outstanding principal amount
of the Loans.
The Company may at any time and from time to time prepay all or a portion
of the Loans, without premium or penalty, provided that (i) the Company may not
prepay any portion of any Loan as to which an election for a continuation of or
a conversion to a Eurodollar Rate Loan is pending pursuant to Section 2.4, and
(ii) unless earlier payment is required under this Agreement, any Eurodollar
Rate Loan may only be prepaid on the last day of the then current Interest
Period with respect to such Loan.
If at any time the aggregate outstanding principal amount of the Revolving
Credit Advances shall exceed the lesser of Borrowing Base or the aggregate
Commitments, the Company shall forthwith pay to the Bank, without demand, an
amount not less than the amount of such excess for application to the
outstanding principal amount of the Loans, provided that if any such prepayment
would be in excess of the outstanding amount of the Loans, the Company shall
deliver cash collateral to the Agent to secure the outstanding Letters of Credit
in the amount of such excess which is greater than the outstanding Loans and the
Company hereby grants to the Agent, for the benefit of the Banks, a first
priority lien and security interest in such collateral, and all such cash
collateral shall be under the sole and exclusive control of the Agent.
Interest Payments. The Company shall pay interest to the Banks on the
unpaid principal amount of each Loan, for the period commencing on the date such
Loan is made until such Loan is paid in full, on each Interest Payment Date and
at maturity (whether at stated maturity, by acceleration or otherwise), and
thereafter on demand, at the following rates per annum:
During such periods that such Loan is an Adjusted Base Rate Loan, the
Adjusted Base Rate.
During such periods that such Loan is a Eurodollar Rate Loan, the
Eurodollar Rate applicable to such Loan for each related Eurodollar Interest
Period.
Notwithstanding the foregoing paragraphs (a) and (b), the Company shall pay
interest on demand by the Agent at the Overdue Rate on the outstanding principal
amount of any Loan and any other amount payable by the Company hereunder (other
than interest) at any time on or after an Event of Default if required in
writing by the Required Banks.
Letter of Credit Reimbursement Payments.
(i) The Company agrees to pay to the Banks, on the day on which the Agent
shall honor a draft or other demand for payment presented or made under any
Letter of Credit, an amount equal to the amount paid by the Agent in respect of
such draft or other demand under such Letter of Credit and all expenses paid or
incurred by the Agent relative thereto. Unless the Company shall have made such
payment to the Banks on such day, upon each such payment by the Agent, the Agent
shall be deemed to have disbursed to the Company, and the Company shall be
deemed to have elected to satisfy its reimbursement obligation by, a Loan
bearing interest at the Adjusted Base Rate for the account of the Banks in an
amount equal to the amount so paid by the Agent in respect of such draft or
other demand under such Letter of Credit. Such Loan shall be disbursed
notwithstanding any failure to satisfy any conditions for disbursement of any
Loan set forth in Article II hereof and, to the extent of the Loan so disbursed,
the reimbursement obligation of the Company under this Section 3.3 shall be
deemed satisfied; provided, however, that nothing in this Section 3.3 shall be
deemed to constitute a waiver of any Default or Event of Default caused by the
failure to the conditions for disbursement or otherwise.
(ii) If, for any reason (including without limitation as a result of the
occurrence of an Event of Default with respect to the Company pursuant to
Section 6.1(h)), Adjusted Base Rate Loans may not be made by the Banks as
described in Section 3.3(a)(i), then (A) the Company agrees that each
reimbursement amount not paid pursuant to the first sentence of Section
3.3(a)(i) shall bear interest, payable on demand by the Agent, at the interest
rate then applicable to Adjusted Base Rate Loans, and (B) effective on the date
each such Adjusted Base Rate Loan would otherwise have been made, each Bank
severally agrees that it shall unconditionally and irrevocably, without regard
to the occurrence of any Default or Event of Default, in lieu of deemed
disbursement of loans, to the extent of such Bank's Commitment, purchase a
participating interest in each reimbursement amount. Each Bank will immediately
transfer to the Agent, in same day funds, the amount of its participation. Each
Bank shall share on a pro rata basis (calculated by reference to its Commitment)
in any interest which accrues thereon and in all repayments thereof. If and to
the extent that any Bank shall not have so made the amount of such participating
interest available to the Agent, such Bank and the Company severally agree to
pay to the Agent forthwith on demand such amount together with interest thereon,
for each day from the date of demand by the Agent until the date such amount is
paid to the Agent, at (x) in the case of the Company, the interest rate then
applicable to Adjusted Base Rate Loans and (y) in the case of such Bank, the
Federal Funds Rate.
The reimbursement obligation of the Company under this Section 3.3 shall be
absolute, unconditional and irrevocable and shall remain in full force and
effect until all obligations of the Company to the Banks hereunder shall have
been satisfied, and such obligations of the Company shall not be affected,
modified or impaired upon the happening of any event, including without
limitation, any of the following, whether or not with notice to, or the consent
of, the Company:
Any lack of validity or enforceability of any Letter of Credit or any
documentation relating to any Letter of Credit or to any transaction related in
any way to such Letter of Credit (the "Letter of Credit Documents");
Any amendment, modification, waiver, consent, or any substitution, exchange
or release of or failure to perfect any interest in collateral or security, with
respect to any of the Letter of Credit Documents;
The existence of any claim, setoff, defense or other right which the
Company may have at any time against any beneficiary or any transferee of any
Letter of Credit (or any Persons or entities for whom any such beneficiary or
any such transferee may be acting), the Agent or any Bank or any other Person or
entity, whether in connection with any of the Letter of Credit Documents, the
transactions contemplated herein or therein or any unrelated transactions;
Any draft or other statement or document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect;
Payment by the Agent to the beneficiary under any Letter of Credit against
presentation of documents which do not comply with the terms of the Letter of
Credit, including failure of any documents to bear any reference or adequate
reference to such Letter of Credit;
Any failure, omission, delay or lack on the part of the Agent or any Bank
or any party to any of the Letter of Credit Documents to enforce, assert or
exercise any right, power or remedy conferred upon the Agent, any Bank or any
such party under this Agreement or any of the Letter of Credit Documents, or any
other acts or omissions on the part of the Agent, any Bank or any such party;
Any other event or circumstance that would, in the absence of this clause,
result in the release or discharge by operation of law or otherwise of the
Company from the performance or observance of any obligation, covenant or
agreement contained in this Section 3.3.
No setoff, counterclaim, reduction or diminution of any obligation or any
defense of any kind or nature which the Company has or may have against the
beneficiary of any Letter of Credit shall be available hereunder to the Company
against the Agent or any Bank.
Payment Method.
All payments to be made by the Company hereunder will be made to the Agent
for the account of the Banks in Dollars and in immediately available funds not
later than 1:00 p.m. at the principal office of the Agent specified in Section
9.2. Payments received after 1:00 p.m. at the place for payment shall be deemed
to be payments made prior to 1:00 p.m. at the place for payment on the next
succeeding Business Day. The Company hereby authorizes the Agent to charge its
account with the Agent in order to cause timely payment of amounts due hereunder
to be made (subject to sufficient funds being available in such account for that
purpose).
At the time of making each such payment, the Company shall, subject to the
other terms and conditions of this Agreement, specify to the Agent that Loan or
other obligation of the Company hereunder to which such payment is to be
applied. In the event that the Company fails to so specify the relevant
obligation or if an Event of Default shall have occurred and be continuing, the
Agent may apply such payments as it may determine in its sole discretion.
On the day such payments are deemed received, the Agent shall remit to the
Banks their pro rata shares of such payments in immediately available funds to
the Banks at their respective address in the United States specified for notices
pursuant to Section 9.2. In the case of payments of principal and interest on
any Borrowing, such pro rata shares shall be determined with respect to each
such Bank by the ratio which the outstanding principal balance of its Loan
included in such Borrowing bears to the outstanding principal balance of the
Loans of all of the Banks included in such Borrowing, and in the case of fees
paid pursuant to Section 2.3 and other amounts payable hereunder (other than the
Agent's fees payable pursuant to Section 2.3(d) and amounts payable to any Bank
under Section 3.7), such pro rata shares shall be determined with respect to
each such Bank by the ratio which the Commitment of such Bank bears to the
Commitments of all the Banks.
No Setoff or Deduction. All payments of principal of and interest on
the Loans and other amounts payable by the Company hereunder shall be made by
the Company without setoff or counterclaim, and free and clear of, and without
deduction or withholding for, or on account of, any present or future taxes,
levies, imposts, duties, fees, assessments, or other charges of whatever nature,
imposed by any governmental authority, or by any department, agency or other
political subdivision or taxing authority.
Payment on Non-Business Day; Payment Computations. Except as otherwise
provided in this Agreement to the contrary, whenever any installment of
principal of, or interest on, any Loan or any other amount due hereunder becomes
due and payable on a day which is not a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day and, in the case of any
installment of principal, interest shall be payable thereon at the rate per
annum determined in accordance with this Agreement during such extension.
Computations of interest and other amounts due under this Agreement shall be
made on the basis of a year of 365 or 366 days (360 days in the case of
Eurodollar Rate Loans) for the actual number of days elapsed, including the
first day but excluding the last day of the relevant period.
Additional Costs.
In the event that any applicable law, treaty or other international
agreement, rule or regulation (whether domestic or foreign) now or hereafter in
effect and whether or not presently applicable to any Bank or the Agent, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Bank or
the Agent with any guideline, request or directive of any such authority
(whether or not having the force of law), shall (a) affect the basis of taxation
of payments to any Bank or the Agent of any amounts payable by the Company under
this Agreement (other than taxes imposed on the overall net income of any Bank
or the Agent, by the jurisdiction, or by any political subdivision or taxing
authority of any such jurisdiction, in which any Bank or the Agent, as the case
may be, has its principal office), or (b) shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by any Bank or the
Agent, or (c) shall impose any other condition with respect to this Agreement,
or any of the Commitments, the Notes or the Loans or any Letter of Credit, and
the result of any of the foregoing is to increase the cost to any Bank or the
Agent, as the case may be, of making, funding or maintaining any Eurodollar Rate
Loan or any Letter of Credit or to reduce the amount of any sum receivable by
any Bank or the Agent, as the case may be, thereon, then the Company shall pay
to such Bank or the Agent, as the case may be, from time to time, upon request
by such Bank (with a copy of such request to be provided to the Agent) or the
Agent, additional amounts sufficient to compensate such Bank or the Agent, as
the case may be, for such increased cost or reduced sum receivable to the
extent, in the case of any Eurodollar Rate Loan, such Bank or the Agent is not
compensated therefor in the computation of the interest rate applicable to such
Eurodollar Rate Loan. A statement as to the amount of such increased cost or
reduced sum receivable, prepared in good faith and in reasonable detail by such
Bank or the Agent, as the case may be, and submitted by such Bank or the Agent,
as the case may be, to the Company, shall be conclusive and binding for all
purposes absent manifest error in computation.
In the event that any applicable law, treaty or other international
agreement, rule or regulation (whether domestic or foreign) now or hereafter in
effect and whether or not presently applicable to any Bank or the Agent, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Bank or
the Agent with any guideline, request or directive of any such authority
(whether or not having the force of law), including any risk-based capital
guidelines, affects or would affect the amount of capital required or expected
to be maintained by such Bank or the Agent (or any corporation controlling such
Bank or the Agent) and such Bank or the Agent, as the case may be, determines
that the amount of such capital is increased by or based upon the existence of
such Bank's or the Agent's obligations hereunder and such increase has the
effect of reducing the rate of return on such Bank's or the Agent's (or such
controlling corporation's) capital as a consequence of such obligations
hereunder to a level below that which such Bank or the Agent (or such
controlling corporation) could have achieved but for such circumstances (taking
into consideration its policies with respect to capital adequacy), then the
Company shall pay to such Bank or the Agent, as the case may be, from time to
time, upon request by such Bank (with a copy of such request to be provided to
the Agent) or the Agent, additional amounts sufficient to compensate such Bank
or the Agent (or such controlling corporation) for any increase in the amount of
capital and reduced rate of return which such Bank or the Agent reasonably
determines to be allocable to the existence of such Bank's or the Agent's
obligations hereunder. A statement as to the amount of such compensation,
prepared in good faith and in reasonable detail by such Bank or the Agent, as
the case may be, and submitted by such Bank or the Agent to the Company, shall
be conclusive and binding for all purposes absent manifest error in computation.
Illegality and Impossibility. In the event that any applicable law, treaty
or other international agreement, rule or regulation (whether domestic or
foreign) now or hereafter in effect and whether or not presently applicable to
any Bank, or any interpretation or administration thereof by any governmental
authority charged with the interpretation or administration thereof, or
compliance by any Bank with any guideline, request or directive of such
authority (whether or not having the force of law), including without limitation
exchange controls, shall make it unlawful or impossible for any Bank to maintain
any Loan under this Agreement, (b) shall make it impracticable, unlawful or
impossible for, or shall in any way limit or impair ability of, the Company to
make or any Bank to receive any payment under this Agreement at the place
specified for payment hereunder, the Company shall upon receipt of notice
thereof from such Bank, repay in full the then outstanding principal amount of
each Loan so affected, together with all accrued interest thereon to the date of
payment and all amounts owing to such Bank under Section 3.8, (a) on the last
day of the then current Interest Period applicable to such Loan if such Bank may
lawfully continue to maintain such Loan to such day, or (b) immediately if such
Bank may not continue to maintain such Loan to such day.
Indemnification. If the Company makes any payment of principal with respect
to any Eurodollar Rate Loan on any other date than the last day of an Interest
Period applicable thereto (whether pursuant to Section 3.1(c), Section 3.7,
Section 6.2 or otherwise), or if the Company fails to borrow any Eurodollar Rate
Loan after notice has been given to the Banks in accordance with Section 2.4, or
if the Company fails to make any payment of principal or interest in respect of
a Eurodollar Rate Loan when due, the Company shall reimburse each Bank on demand
for any resulting loss or expense incurred by each such Bank, including without
limitation any loss incurred in obtaining, liquidating or employing deposits
from third parties, whether or not such Bank shall have funded or committed to
fund such Loan. A statement as to the amount of such loss or expense, prepared
in good faith and in reasonable detail by such Bank and submitted by such Bank
to the Company, shall be conclusive and binding for all purposes absent manifest
error in computation. Calculation of all amounts payable to such Bank under this
Section 3.9 shall be made as though such Bank shall have actually funded or
committed to fund the relevant Eurodollar Rate Loan through the purchase of an
underlying deposit in an amount equal to the amount of such Loan in the relevant
market and having a maturity comparable to the related Interest Period and,
through the transfer of such deposit to a domestic office of such Bank in the
United States; provided, however, that such Bank may fund any Eurodollar Rate
Loan in any manner it sees fit and the foregoing assumption shall be utilized
only for the purpose of calculation of amounts payable under this Section 3.9.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Banks and the Agent that:
Existence and Power. Each of the Company and the Guarantors is a
corporation or a limited liability company duly organized, validly existing and
in good standing under the laws of the state of its jurisdiction of
incorporation or organization, as the case may be, and is duly qualified to do
business, and is in good standing in all additional jurisdictions where such
qualification is necessary under applicable law. Each of the Company and the
Guarantors has all requisite corporate or limited liability company power to own
or lease the properties used in its business and to carry on its business as now
being conducted and as proposed to be conducted, and to execute and deliver this
Agreement, the Notes and the Security Documents to which it is a party and to
engage in the transactions contemplated by this Agreement.
Authority. The execution, delivery and performance by the Company and each
Guarantor of this Agreement, the Notes and the Security Documents to which it is
a party have been duly authorized by all necessary corporate or limited
liability company action and are not in contravention of any law, rule or
regulation, or any judgment, decree, writ, injunction, order or award of any
arbitrator, court or governmental authority, or of the terms of the Company's or
the Guarantor's charter, by-laws, articles of organization or operating
agreement or of any contract or undertaking to which the Company or any
Guarantor is a party or by which the Company or any Guarantor or any of their
respective property may be bound or affected and will not result in the
imposition of any Lien on any of their property or of any of their Restricted
Subsidiaries except for Permitted Liens.
Binding Effect. This Agreement is, and the Notes and the Security Documents
to which the Company or any Guarantor is a party when delivered hereunder will
be, legal, valid and binding obligations of the Company and the Guarantor,
respectively, enforceable against the Company and the Guarantor in accordance
with their respective terms.
Restricted and Unrestricted Subsidiaries. Schedule 4.4 hereto correctly
sets forth the name, jurisdiction of incorporation or organization and ownership
of each Subsidiary of the Company, and whether it is a Restricted Subsidiary or
an Unrestricted Subsidiary. Each such Subsidiary and each corporation or limited
liability company becoming a Subsidiary of the Company or any Guarantor after
the date hereof is and will be a corporation or limited liability company duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization and is and will be duly qualified
to do business in each additional jurisdiction where such qualification is or
may be necessary under applicable law. Each Subsidiary of the Company and each
Guarantor has and will have all requisite corporate or limited liability company
power to own or lease the properties used in its business and to carry on its
business as now being conducted and as proposed to be conducted. All outstanding
shares of Capital Stock of each class of each Subsidiary, the Company and each
Guarantor have been and will be validly issued and are and will be fully paid
and nonassessable, and, except as otherwise indicated in Schedule 4.4 hereto or
disclosed in writing to the Agent and the Banks from time to time, all ownership
interests in the company's subsidiaries, are and will be owned, beneficially and
of record, by the Company or another Subsidiary of the Company free and clear of
any Liens.
Litigation. Except as set forth in Schedule 4.5 hereto, there is no action,
suit or proceeding pending or, to the best of the Company's and the Guarantors'
knowledge, threatened against or affecting the Company, any Guarantor or any of
their respective Subsidiaries before or by any court, governmental authority or
arbitrator, which if adversely decided might have a Material Adverse Effect and,
to the best of the Company's and the Guarantor's knowledge, there is no basis
for any such action, suit or proceeding.
Financial Condition. The individual and combined balance sheet of
NWS-Indiana and NWS-Illinois and the individual and combined statements of
income, retained earnings and cash flows of NWS-Indiana and NWS-Illinois for the
fiscal year ended March 31, 1998 and reported on by Ernst & Young, independent
certified public accountants, and the interim combined balance sheet and interim
combined statements of income, retained earnings and cash flows of NWS-Indiana
and NWS-Illinois, as of or for the six-month period ended on September 30, 1998,
copies of which have been furnished to the Banks, fairly present the combined
financial position of NWS-Indiana and NWS-Illinois as at the respective dates
thereof, and the combined results of operations of NWS-Indiana and NWS-Illinois
for the respective periods indicated, all in accordance with Generally Accepted
Accounting Principles consistently applied (subject, in the case of said interim
statements, to year-end audit adjustments). There has been no event or
development which has had or could reasonably be expected to have a Material
Adverse Effect since March 31, 1998. There is no material Contingent Liability
of the Company or any of its Restricted Subsidiaries that is not reflected in
such financial statements or in the notes thereto.
Corporate Restructuring and Future Financial Statements. All of the shares
of NWS-Illinois. and NWS-Indiana, which were previously owned by Xxxxx LaCrosse
and Xxxxx Xxxxxxxx, have been transferred to the Company, and NWS-Illinois and
NWS-Indiana are wholly-owned Subsidiaries of the Company. The financial
statements of the Company, NWS-Illinois, NWS-Indiana and the other Restricted
Subsidiaries of the Company, are now prepared on a Consolidated basis and the
financial statements of the Company and its Restricted Subsidiaries pursuant to
Section 5.1(d) will fairly present the Consolidated financial position of the
Company and its Restricted Subsidiaries as at the respective dates thereof and
the Consolidated results of operations of the Company and its Restricted
Subsidiaries for the respective periods indicated, all in accordance with
Generally Accepted Accounting Principles consistently applied (subject, in the
case of interim statements, to year-end audit adjustments).
Use of Advances. The Company will use the proceeds of the Advances for its
general corporate purposes and to make loans to the Guarantors for their general
corporate purposes, which loans will be evidenced by Intercompany Notes pledged
to the Agent by the Company. Neither the Company nor any Guarantor nor any of
their respective Restricted Subsidiaries extends or maintains, in the ordinary
course of business, credit for the purpose, whether immediate, incidental, or
ultimate, of buying or carrying margin stock (within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System), and no part of the
proceeds of any Advance will be used for the purpose, whether immediate,
incidental, or ultimate, of buying or carrying any such margin stock or
maintaining or extending credit to others for such purpose. After applying the
proceeds of each Advance, such margin stock will not constitute more than 25% of
the value of the assets (either of the Company or any Guarantor alone or of the
Company and the Guarantors and their respective Restricted Subsidiaries on a
consolidated basis) that are subject to any provisions of this Agreement or any
Security Document that may cause the Advances to be deemed secured, directly or
indirectly, by margin stock.
Consents, Etc. Except for such consents, approvals, authorizations,
declarations, registrations or filings delivered by the Company and the
Guarantors pursuant to Section 2.5(g), if any, each of which is in full force
and effect, no consent, approval or authorization of or declaration,
registration or filing with any governmental authority or any nongovernmental
Person or entity, including without limitation any creditor, lessor or
stockholder of the Company or any Guarantor or any of their respective
Restricted Subsidiaries, is required on the part of the Company or any Guarantor
in connection with the execution, delivery and performance of this Agreement,
the Notes, the Security Documents or the transactions contemplated hereby or as
a condition to the legality, validity or enforceability of this Agreement, the
Notes or any of the Security Documents.
Taxes. The Company and the Guarantors and their respective Restricted
Subsidiaries have filed all tax returns (federal, state and local) required to
be filed and have paid all taxes shown thereon to be due, including interest and
penalties, or have established adequate financial reserves on their respective
books and records for payment thereof in accordance with Generally Accepted
Accounting Principles. Neither the Company nor any Guarantor nor any of their
respective Restricted Subsidiaries knows of any actual or proposed assessment
for taxes based on income or any basis therefor, and no extension of time for
the assessment of deficiencies in any such federal or state tax has been granted
by the Company, any Guarantor or any such Subsidiary.
Title to Properties. Except as otherwise disclosed in the latest balance
sheet delivered pursuant to Section 4.6 or 5.1(d) of this Agreement, the
Company, the Guarantors or one or more of their respective Restricted
Subsidiaries have good and marketable fee simple title to all of the real
property, and a valid and indefeasible ownership interest in all of the other
properties and assets (including, without limitation, the collateral subject to
the Security Documents to which any of them is a party) reflected in said
balance sheet or subsequently acquired by the Company, any Guarantor or any such
Subsidiary. All of such properties and assets are free and clear of any Lien,
except for Permitted Liens.
Borrowing Base. All trade accounts receivable and inventory of the Company
represented or reported by the Company to be, or are otherwise included in,
Eligible Accounts Receivable and Eligible Inventory comply in all respects with
the requirements therefor set forth in the definition thereof, and the
computation of the Borrowing Base set forth in each Borrowing Base Certificate
is true and correct.
ERISA. The Company, the Guarantors, their respective Restricted
Subsidiaries, their ERISA Affiliates and their respective Plans are in
compliance in all material respects with those provisions of ERISA and of the
Code which are applicable with respect to any Plan. No Prohibited Transaction
and no Reportable Event has occurred with respect to any such Plan. None of the
Company, any Guarantor, any of their respective Restricted Subsidiaries or any
of their ERISA Affiliates is an employer with respect to any Multiemployer Plan.
The Company, the Guarantors, their respective Restricted Subsidiaries and their
ERISA Affiliates have met the minimum funding requirements under ERISA and the
Code with respect to each of their respective Plans, if any, and have not
incurred any liability to the PBGC or any Plan. The execution, delivery and
performance of this Agreement, the Notes and the Security Documents do not
constitute a Prohibited Transaction. There is no material Unfunded Benefit
Liability, with respect to any Plan of the Company, any Guarantor, their
respective Restricted Subsidiaries or their ERISA Affiliates.
Disclosure. No report or other information furnished in writing or on
behalf of the Company or any Guarantor to any Bank or the Agent in connection
with the negotiation or administration of this Agreement contains any material
misstatement of fact or omits to state any material fact or any fact necessary
to make the statements contained therein not misleading in light of the
circumstances in which they were made. Neither this Agreement, the Notes, the
Security Documents nor any other document, certificate, or report or statement
or other information furnished to any Bank or the Agent by or on behalf of the
Company or any Guarantor in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein and therein not
misleading in light of the circumstances in which they were made. There is no
fact known to the Company or any Guarantor which has or which in the future may
have (so far as the Company or any Guarantor can now foresee) a Material Adverse
Effect, which has not been set forth in this Agreement or in the other
documents, certificates, statements, reports and other information furnished in
writing to the Banks by or on behalf of the Company or any Guarantor in
connection with the transactions contemplated hereby.
No Default. Neither the Company nor any Subsidiary is in default or has
received any written notice of default under or with respect to any of its
Contractual Obligations in any respect which could have a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.
No Burdensome Restrictions. No Requirement of Law or Contractual Obligation
applicable to the Company or any Subsidiary could have a Material Adverse Effect
on the financial condition or business of the Company and its Restricted
Subsidiaries.
4.17 Year 2000. The Company's program for remediating the Year 2000 Issues
on a timely basis (the "Year 2000 Program") is accurately summarized on Schedule
4.17 hereto. Based on the assessment set forth in Schedule 4.17 the Company does
not reasonably anticipate that Year 2000 Issues will have a Material Adverse
Effect.
ARTICLE 5
COVENANTS
Affirmative Covenants. Each of the Company and the Guarantors covenants and
agrees that, until the Termination Date and thereafter until payment in full of
the principal of and accrued interest on the Notes and the performance of all
other obligations of the Company and the Guarantors under this Agreement, unless
the Required Banks shall otherwise consent in writing, it shall, and shall cause
each of their respective Restricted Subsidiaries to:
Preservation of Corporate Existence, Etc. Do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence, and its qualification as a foreign corporation or limited liability
company in good standing in each jurisdiction in which such qualification is
necessary under applicable law, and the rights, licenses, permits (including
those required under Environmental Laws), franchises, patents, copyrights,
trademarks and trade names material to the conduct of its businesses; and defend
all of the foregoing against all claims, actions, demands, suits or proceedings
at law or in equity or by or before any governmental instrumentality or other
agency or regulatory authority.
Compliance with Laws, Etc. Comply in all material respects with all
applicable laws, rules, regulations and orders of any governmental authority,
whether federal, state, local or foreign (including without limitation ERISA,
the Code and Environmental Laws), in effect from time to time; and pay and
discharge promptly when due all taxes, assessments and governmental charges or
levies imposed upon it or upon its income, revenues or property, before the same
shall become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise, which, if unpaid, might give rise to Liens
upon such properties or any portion thereof, except to the extent that payment
of any of the foregoing is then being contested in good faith by appropriate
legal proceedings and with respect to which adequate financial reserves have
been established on the books and records of the Company, any Guarantor or any
of their respective Restricted Subsidiaries in accordance with Generally
Accepted Accounting Principles.
Maintenance of Properties; Insurance. Maintain, preserve and protect all
property that is material to the conduct of the business of the Company, any
Guarantor or any of their respective Restricted Subsidiaries and keep such
property in good repair, working order and condition and from time to time make,
or cause to be made all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times in
accordance with customary and prudent business practices for similar businesses;
and, in addition to that insurance required under the Security Documents,
maintain in full force and effect insurance with responsible and reputable
insurance companies or associations in such amounts, on such terms and covering
such risks, including fire and other risks insured against by extended coverage,
as is usually carried by companies engaged in similar businesses and owning
similar properties similarly situated and maintain in full force and effect
public liability insurance, insurance against claims for personal injury or
death or property damage occurring in connection with any of its activities or
any properties owned, occupied or controlled by it, in such amount as it shall
reasonably deem necessary, and maintain such other insurance as may be required
by law or as may be reasonably requested by the Required Banks for purposes of
assuring compliance with this Section 5.1(c).
Reporting Requirements. Furnish to the Banks and the Agent the following:
Promptly and in any event within three Business Days after becoming aware
of the occurrence of (A) any Default or Event of Default, (B) the commencement
of any material litigation against, by or affecting the Company, any Guarantor
or any of their respective Restricted Subsidiaries, and any material
developments therein, or (C) entering into any material contract or undertaking
that is not entered into in the ordinary course of business or (D) any
development in the business or affairs of the Company, any Guarantor or any of
their respective Subsidiaries, including, without limitation, developments with
respect to Year 2000 Issues, which has resulted in or which is likely in the
reasonable judgment of the Company or any Guarantor, to result in a Material
Adverse Effect, a statement of a duly authorized officer of the Company or the
Guarantor, as the case may be setting forth details of each such Default or
Event of Default or such litigation, material contract or undertaking or
development and the action which the Company, such Guarantor or such Subsidiary,
as the case may be, has taken and proposes to take with respect thereto;
As soon as available and in any event within 45 days after the end of each
month of the Company, the Consolidated and consolidating balance sheet of the
Company and its Restricted Subsidiaries, and of the Company and its
Subsidiaries, as of the end of such month, and the related Consolidated and
consolidating statements of income, retained earnings and cash flows for the
period commencing at the end of the previous fiscal year and ending with the end
of such month, setting forth in each case in comparative form the corresponding
figures for the corresponding date or period of the preceding fiscal year, all
in reasonable detail and duly certified (subject to year-end audit adjustments)
by the chief financial officer of the Company as having been prepared in
accordance with Generally Accepted Accounting Principles, together with, in the
case of the financial statements for the last month of each fiscal quarter, a
certificate of a duly authorized officer of the Company stating (A) that no
Default or Event of Default has occurred and is continuing or, if a Default or
Event of Default has occurred and is continuing, a statement setting forth the
details thereof and the action which the Company has taken and proposes to take
with respect thereto, and (B) that a computation (which computation shall
accompany such certificate and shall be in reasonable detail) showing compliance
with Section 5.2(a) and (b) hereof is in conformity with the terms of this
Agreement;
As soon as available and in any event within 120 days after the end of each
fiscal year of the Company, a copy of the Consolidated balance sheet of the
Company and its Restricted Subsidiaries, and of the Company and its
Subsidiaries, as of the end of such fiscal year and the related consolidated
statements of income, retained earnings and changes in financial position of the
Company and its Restricted Subsidiaries, and of the Company and its
Subsidiaries, for such fiscal year, with a customary audit report of Ernst &
Young, or other independent certified public accountants selected by the Company
and acceptable to the Required Banks, without qualifications unacceptable to the
Required Banks, together with a certificate of such accountants stating (A) that
they have reviewed this Agreement and stating further whether, in the course of
their review of such financial statements, they have become aware of any Default
or Event of Default and, if such a Default or Event of Default exists and is
continuing, a statement setting forth the nature and status thereof, and (B)
that a computation by the Company (which computation shall accompany such
certificate and shall be in reasonable detail) showing compliance with Section
5.2 (a) and (b) hereof is in conformity with the terms of this Agreement;
Promptly after the sending or filing thereof, copies of all reports, proxy
statements and financial statements which the Company or any Guarantor or any of
their respective Restricted Subsidiaries sends to or files with any of their
respective security holders or any securities exchange or the Securities and
Exchange Commission or any successor agency thereof;
Promptly and in any event within 10 calendar days following last day of
each month, or within one Business Day following the last day of each week at
any time when the Borrowing Base selected by the Company is equal to the sum of
80% of the value of Eligible Accounts Receivable plus 60% of the value of
Eligible Inventory, a Borrowing Base certificate prepared as of the close of
business on such last day, together with supporting schedules, in form and
detail satisfactory to the Agent, setting forth such information as the Agent
may request with respect to the aging, value, location, and ownership of such
Eligible Accounts Receivable and Eligible Inventory, and other information
relating to the computation of the Borrowing Base and the eligibility of any
property or assets included in such computation, certified as true and correct
by the chief financial officer of the Company;
Promptly and in any event within 10 calendar days after receiving or
becoming aware thereof (A) a copy of any notice of intent to terminate any Plan
of the Company, any Guarantor, their respective Restricted Subsidiaries or any
ERISA Affiliate filed with the PBGC, (B) a statement of the chief financial
officer of the Company or any Guarantor, as the case may be; setting forth the
details of the occurrence of any Reportable Event with respect to any such Plan,
(C) a copy of any notice that the Company, any Guarantor, any of their
respective Restricted Subsidiaries or any ERISA Affiliate may receive from the
PBGC relating to the intention of the PBGC to terminate any such Plan or to
appoint a trustee to administer any such Plan, or (D) a copy of any notice of
failure to make a required installment or other payment within the meaning of
Section 412(n) of the Code or Section 302(f) of ERISA with respect to any such
Plan;
As soon as available and in any event within 15 days after the end of each
month, a report with respect to the Company and its Restricted Subsidiaries,
listing their accounts receivable and accounts payable and the age thereof, and
setting forth in summary form their inventory and its value, in form and detail
satisfactory to the Agent, certified as true and correct by a duly authorized
officer of the Company; and
Promptly, such other information respecting the business, properties,
operations or condition, financial or otherwise, of the Company, any Guarantor
or any of their respective Restricted Subsidiaries as any Bank or the Agent may
from time to time reasonably request.
Accounting; Access to Records, Books, Etc. Maintain a system of accounting
established and administered in accordance with sound business practices to
permit preparation of financial statements in accordance with Generally Accepted
Accounting Principles and to comply with the requirements of this Agreement and,
at any reasonable time and from time to time, (i) permit any Bank or the Agent
or any agents or representatives thereof to examine and make copies of and
abstracts from the records and books of account of, and visit the properties of,
the Company, the Guarantors and their respective Restricted Subsidiaries, and to
discuss the affairs, finances and accounts of the Company, the Guarantors and
their respective Restricted Subsidiaries with their respective directors,
officers, employees and independent auditors, and by this provision each of the
Company and the Guarantors hereby authorizes such Persons to discuss such
affairs, finances and accounts with any Bank or the Agent, and (ii) during any
fiscal quarter that the Borrowing Base is equal to the sum of 80% of the value
of Eligible Accounts Receivable plus 60% of the value of Eligible Inventory,
permit the Agent or any of its agents or representatives to conduct a
comprehensive field audit of its books, records, properties and assets,
including without limitation all collateral subject to the Security Documents,
at any one time during such quarter, at the expense of the Company, and if a
different Borrowing Base level is in effect permit the Agent to do so at any
time, at the expense of the Banks; and
Loans by the Company to the Restricted Subsidiaries. In the event that the
Company makes loans or other advances to or for the benefit of a Restricted
Subsidiary after the Effective Date that are not evidenced by an Intercompany
Note delivered to the Agent, the Company will obtain an Intercompany Note from
the borrowing Restricted Subsidiary to evidence such loans and advances and
shall deliver it to the Agent pursuant to the Pledge Agreement.
Additional Security and Collateral. Promptly (i) execute and deliver and
cause each Restricted Subsidiary of the Company and the Guarantors to execute
and deliver, additional Security Documents, within 30 days after request
therefor by the Banks and the Agent, sufficient to grant to the Agent for the
benefit of the Banks liens and security interests in any after acquired property
of the type described in Section 2.11, and (ii) cause each Person becoming a
Restricted Subsidiary of the Company or any Guarantor from time to time to
execute and deliver to the Banks and the Agent, within 30 days after such Person
becomes a Restricted Subsidiary, a Guaranty and Security Documents, together
with other related documents described in Section 2.5, sufficient to grant to
the Agent for the benefit of the Banks liens and security interests in all
collateral of the type described in Section 2.11. The Company shall notify the
Banks and the Agent, within 10 Business Days after the occurrence thereof, of
the acquisition of any property by the Company or any Guarantor that is not
subject to the existing Security Documents, any Person's becoming a Restricted
Subsidiary and any other event or condition that may require additional action
of any nature in order to preserve the effectiveness and perfected status of the
liens and security interests of the Banks and the Agent with respect to such
property pursuant to the Security Documents.
(h) Addition of Covenants; Incorporation by Reference. If at any time the
Company shall enter into or be a party to any instrument or agreement, including
all such instruments or agreements in existence as of the date hereof and all
such instruments or agreements entered into after the date hereof, relating to
or amending any terms or conditions applicable to any of its Indebtedness or any
issuance or placement of its equity which includes covenants, terms, conditions
or defaults not substantially provided for in this Agreement or more favorable
to the holder or holders thereof than those provided for in this Agreement, then
the Company shall promptly so advise the Agent and the Banks. Thereupon, if the
Agent shall request, upon notice to the Company, the Agent and the Banks shall
enter into with the Company an amendment to this Agreement or an additional
agreement (as the Agent may request), providing for substantially the same
covenants, terms, conditions and defaults as those provided for in such
instrument or agreement to the extent required and as may be selected by the
Agent. In addition to the foregoing, any covenants, terms, conditions or
defaults in the documents governing the Senior Unsecured Debt not substantially
provided for in this Agreement or more favorable to the holders of the Senior
Unsecured Debt than those provided for in this Agreement are hereby incorporated
by reference into this Agreement to the same extent as if set forth fully
herein.
(i) Further Assurances. Will, and will cause each Guarantor to, execute and
deliver within 30 days after request therefor by the Banks and the Agent, all
further instruments and documents and take all further action that may be
necessary or desirable, or that the Agent may request, in order to give effect
to, and to aid in the exercise and enforcement of the rights and remedies of the
Banks under, this Agreement, the Notes and the Security Documents, including
without limitation causing each lessor of real property to the Company or any
Guarantor in which inventory is located to execute and deliver to the Agent,
prior to or upon the commencement of any such tenancy, an agreement in form and
substance acceptable to the Banks and the Agent duly executed on behalf of such
lessor waiving any distraint, lien and similar rights with respect to any
property subject to the Security Documents and agreeing to permit the Banks and
the Agent to enter such premises in connection therewith.
(j) Year 2000. The Company will take and will cause each of its Restricted
Subsidiaries to take all such actions as are reasonably necessary to
successfully implement the Year 2000 Program and to assure that Year 2000 Issues
will not have a Material Adverse Effect. At the request of the Agent, the
Company will provide updates and progress reports with respect to the Year 2000
Program.
Negative Covenants. Until the Termination Date and thereafter until payment
in full of the principal of and accrued interest on the Notes and the
performance of all other obligations of the Company and the Guarantors under
this Agreement, the Company agrees that, unless the Required Banks shall
otherwise consent in writing it shall not, and shall not permit any of its
Restricted Subsidiaries to:
Interest Coverage Ratio. Permit or suffer the Interest Coverage Ratio at
any time to be less than 1.50 to 1.0 at any time during the period ending on
March 30, 2000, and to be less than 1.75 to 1.0 on March 31, 2000 and at any
time thereafter.
Funded Debt Coverage Ratio. Permit or suffer the Funded Debt Coverage Ratio
to be greater than 7.5 to 1.0 at any time during the period ending on September
29, 1999, and to be greater than 6.5 to 1.0 on September 30, 1999 and at any
time thereafter.
Indebtedness. Create, incur, assume or in any manner become liable in
respect of, or suffer to exist, any Indebtedness other than:
The Advances;
The Indebtedness described in Schedule 5.2(c) hereto, having the same terms
as those existing on the date of this Agreement;
Indebtedness of any Restricted Subsidiary of the Company owing to the
Company or to any other Restricted Subsidiary of the Company;
Senior Unsecured Debt;
Subordinated Debt of the Company or any of its Restricted Subsidiaries; and
Indebtedness owing to any Bank that constitutes Hedging Obligations that
are incurred for the purpose of fixing or hedging interest rate risk with
respect to any floating rate Indebtedness that is permitted by the terms of this
Agreement to be outstanding (valued in an amount equal to the highest
termination payment, if any, that would be payable upon termination for any
reason on the date of determination) not exceeding in aggregate amount
$25,000,000;
(vii) Indebtedness in aggregate principal amount at any time outstanding
not exceeding $5,000,000 which is secured by one or more liens permitted by
Section 5.2(d)(viii) hereof; and
(viii) Additional Indebtedness not to exceed $10,000,000 in aggregate
principal amount at any time outstanding.
Liens. Create, incur or suffer to exist any Lien on any of the assets,
rights, revenues or property, real, personal or mixed, tangible or intangible,
whether now owned or hereafter acquired, of the Company or any of its Restricted
Subsidiaries, other than:
Liens for taxes not delinquent or for taxes being contested in good faith
by appropriate proceedings and as to which adequate financial reserves have been
established on its books and records in accordance with Generally Accepted
Accounting Principles;
Liens (other than any Lien imposed by ERISA or any Environmental Law)
created and maintained in the ordinary course of business which are not material
in the aggregate, and which would not have a Material Adverse Effect and which
constitute (A) pledges or deposits under worker's compensation laws,
unemployment insurance laws or similar legislation, (B) good faith deposits in
connection with bids, tenders, contracts or leases to which the Company or any
of its Restricted Subsidiaries is a party for a purpose other than borrowing
money or obtaining credit, including rent security deposits, (C) liens imposed
by law, such as those of carriers, warehousemen and mechanics, if payment of the
obligation secured thereby is not yet due, (D) Liens securing taxes, assessments
or other governmental charges or levies not yet subject to penalties for
nonpayment, and (E) pledges or deposits to secure public or statutory
obligations of the Company or any of its Restricted Subsidiaries, or surety,
customs or appeal bonds to which the Company or any of its Restricted
Subsidiaries is a party;
Liens affecting real property which constitute minor survey exceptions or
defects or irregularities in title, minor encumbrances, easements or
reservations of, or rights of others for, rights of way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or other
restrictions as to the use of such real property, provided that all of the
foregoing, in the aggregate, do not at any time materially detract from the
value of said properties or materially impair their use in the operation of the
businesses of the Company or any of its Restricted Subsidiaries;
Liens created pursuant to the Security Documents and Liens expressly
permitted by the Security Documents;
Each Lien described in Schedule 5.2(d) hereto may be suffered to exist upon
the same terms as those existing on the date hereof;
Liens in favor of the Company or any of its Restricted Subsidiaries as
security for Indebtedness permitted by Section 5.2(c)(iii);
The interest or title of a lessor under any lease otherwise permitted under
this Agreement with respect to the property subject to such lease to the extent
performance of the obligations of the Company or its Restricted Subsidiary
thereunder is not delinquent by more than 30 days or is being contested in good
faith; and
(viii) Any lien created to secure payment of a portion of the purchase
price of any tangible fixed asset, including, without limitation, real estate
(including improvements thereto) and vehicles, acquired by the Company or any of
its Restricted Subsidiaries may be created or suffered to exist upon such fixed
asset if the outstanding principal amount of the Indebtedness secured by such
Lien does not at any time exceed the purchase price paid by the Company or such
Subsidiary for such fixed asset and the aggregate principal amount at any time
outstanding of all Indebtedness secured by such Liens does not exceed
$5,000,000, provided that such Lien does not encumber any other asset at any
time owned by the Company or such Restricted Subsidiary, and provided, further,
that not more than one such Lien shall encumber such fixed asset at any one
time.
Merger; Acquisitions; Etc. Subject to the limitations contained in Section
5.2(k), purchase or otherwise acquire, whether in one or a series of
transactions, all or a substantial portion of the business, assets, rights,
revenues or property, real, personal or mixed, tangible or intangible, of any
Person, or all or a substantial portion of the Capital Stock of any other
Person; nor merge or consolidate or amalgamate with any other Person or take any
other action having a similar effect, provided, however, that this Section
5.2(e) shall not prohibit any merger or acquisition, including but not limited
to those in which the consideration paid by the Company or a Restricted
Subsidiary consists of its Capital Stock, if (i) the Company shall be the
surviving or continuing corporation thereof, and (ii) immediately before and
after such merger or acquisition, no Default or Event of Default shall exist or
shall have occurred and be continuing and the representations and warranties
contained in Article 4 shall be true and correct on and as of the date thereof
(both before and after such merger or acquisition is consummated) as if made on
the date such merger or acquisition is consummated, and (iii) the Company shall
have provided to the Agent before such merger or acquisition pro forma financial
statements reflecting the occurrence of such merger or acquisition demonstrating
compliance with the covenants contained in this Agreement, certified by a duly
authorized officer of the Company.
Disposition of Assets; Etc. Sell, lease, license, transfer, assign or
otherwise dispose of all or a substantial portion of its business, assets,
rights, revenues or property, real, personal or mixed, tangible or intangible,
whether in one or a series of transactions, other than inventory sold in the
ordinary course of business upon customary credit terms and sales of obsolete
material or equipment, provided, however, that this Section 5.2(f) shall not
prohibit any such sale, lease, license, transfer, assignment or other
disposition if (i) the aggregate book value (disregarding any write-downs of
such book value other than ordinary depreciation and amortization) of all of the
business, assets, rights, revenues and property disposed of (excluding the value
of any Capital Stock of U.S. Beverage Company disposed of) after the date of
this Agreement shall be less than three percent (3%) of such aggregate book
value of the total assets of the Company or such Restricted Subsidiary, as the
case may be, or (ii) with respect to a Restricted Subsidiary at least
seventy-five percent (75%) of the consideration therefor received by such
Restricted Subsidiary is either cash or the assumption of liabilities that are
assumed by the transferee of any such assets pursuant to a novation agreement
that releases the Restricted Subsidiary from further liability, and the cash
proceeds are paid to the Company in reduction of such Restricted Subsidiary's
Indebtedness to the Company, and paid by the Company to the Banks as a permanent
reduction to the Commitments; and (iii) in the case of both (i) and (ii) above,
immediately before and after such transaction no Default or Event of Default
shall exist or shall have occurred and be continuing. Notwithstanding the above,
(a) the Company may sell the Capital Stock of U.S. Beverage Company; (b) the
Company may sell its Cameron Springs bottled water business for fair market
value provided that any non-cash consideration received therefor is in the form
of securities registered under the Securities Act of 1933 or subject to a
registration rights agreement providing for registration under the Securities
Act of 1933 ninety days after the sale; (c) NWS-Illinois may transfer its asset
primarily used in its U.S. Beverage division to U.S. Beverage Company; and (d)
NWS-Illinois may sell beer franchises, brand labels and distribution rights for
fair market value including cash royalty payments or cash payments over time.
Nature of Business. Make any substantial change in the nature of its
business from that engaged in on the date of this Agreement or engage in any
other businesses other than those in which it is engaged on the date of this
Agreement, other than businesses reasonably related thereto.
Restricted Payments. Make, pay, declare or authorize any Restricted
Payment, provided, however, that (i) the Company may make Restricted Payments
with respect to any taxable year of the Company in the total amount not
exceeding the federal, state and local income taxes incurred by attribution to
the Company's shareholders of the S corporation taxable income of the Company
for such taxable year; so long as there shall not then exist a Default or Event
of Default, and so long as prior to such distribution the chief financial
officer of the Company shall deliver to the Agent a certificate in form
acceptable to the Agent stating that such distribution is in compliance with
this Section 5.2(h), and (ii) the Company and the Restricted Subsidiaries may
make additional Restricted Payments, provided that the aggregate of such
additional Restricted Payments made after the Effective Date shall be less than
the sum of (A) 50% of Consolidated Net Income for the period (taken as one
accounting period) from the beginning of the first fiscal quarter commencing
after the Effective Date to the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available at the time of
such Restricted Payment (or, if such Consolidated Net Income for such period is
a deficit, less 100% of such deficit), plus (B) 100% of the aggregate net cash
proceeds received by the Company from the issue or sale since the Effective Date
of Capital Stock of the Company (other than Capital Stock sold to a Subsidiary
of the Company) and 100% of the capital contributions received by the Company
after the Effective Date in cash, plus (C) one year and one day after the date
of such receipt, 100% of the cash payments received by the Company after the
Effective Date on a Company Shareholder Note Receivable, plus (D) to the extent
that any Investment permitted under Section 5.2(k) hereof that was made after
the Effective Date is sold for cash or otherwise liquidated or repaid for cash,
the lesser of (x) the cash return of capital with respect to such Investment
(less the cost of disposition, if any) and (y) the initial amount of such
Investment, plus (E) 50% of any dividends received by the Company or a
Restricted Subsidiary after the Effective Date from an Unrestricted Subsidiary,
to the extent that such dividends were not otherwise included in Consolidated
Net Income for such period, plus (F) provided that no Default or Event of
Default has occurred and is continuing, $2,500,000.
Capital Expenditures. Acquire or contract to acquire any fixed asset or
make any other capital expenditure if the aggregate purchase price and other
acquisition costs of all such fixed assets acquired and contracted to be
acquired and other capital expenditures made by the Company or any of its
Restricted Subsidiaries during any fiscal year of the Company would exceed, on a
Consolidated basis, an amount equal to $10,000,000 in any fiscal year, plus with
respect to any fiscal year after fiscal year 1999 the amount, if any, by which
such costs and other capital expenditures in the preceding fiscal year were less
than $10,000,000.
Capital Leases. Permit or suffer the aggregate outstanding capitalized
amount of all obligations under Capital Leases of the Company and its Restricted
Subsidiaries at any time to exceed $5,000,000, excluding from this amount
obligations on Capital Leases existing on the Effective Date and described on
Schedule 5.2(j).
Investments. Make any Investments other than (i) Investments by the Company
in any Restricted Subsidiary; (ii) extensions of trade credit made in the
ordinary course of business on customary credit terms and commission, travel and
similar advances made to officers and employees in the ordinary course of
business; (iii) Investments in commercial paper of any United States issuer
having the highest rating then given by Xxxxx'x Investors Service, Inc., or
Standard & Poor's Corporation, direct obligations of and obligations fully
guaranteed by the United States of America or any agency or instrumentality
thereof, or certificates of deposit of any commercial bank which is a member of
the Federal Reserve System and which has capital, surplus and undivided profit
(as shown on its most recently published statement of condition) aggregating not
less than $100,000,000, provided, however, that each of the foregoing
Investments has a maturity date not later than one year after the acquisition
thereof by the Company or any of its Restricted Subsidiaries; (iv) Investments
in joint venture or similar arrangements, exclusive of Investments described in
subsection (iii) above, and (except for loans and advances of credit)
Unrestricted Subsidiaries in which the aggregate of all such Investments does
not exceed, at any one time outstanding, an amount equal to 10% of Consolidated
Tangible Assets; (v) those Investments described in Schedule 5.2(k) hereto,
having the same terms as existing on the date of this Agreement, but no
extension or renewal thereof shall be permitted; (vi) redemptions of the
minority interest owned on the Effective Date by Xxxxxx X. Xxxx in NWS Illinois,
LLC; and (vii) Investments permitted under Section 5.2(e).
Transactions with Affiliates. Enter into, become a party to, or become
liable in respect of, any contract or undertaking with any Affiliate except in
the ordinary course of business and on terms not less favorable to the Company
or such Restricted Subsidiary than those which could be obtained if such
contract or undertaking were an arm's length transaction with a Person other
than an Affiliate.
Sale and Leaseback Transactions. Become or remain liable in any way,
whether directly or by assignment or as a guarantor or other contingent obligor,
for the obligations of the lessee or user under any lease or contract for the
use of any real or personal property if such property is owned on the date of
this Agreement or thereafter acquired by the Company or any of its Restricted
Subsidiaries and has been or is to be sold or transferred to any other Person
and was, is or will be used by the Company or any such Restricted Subsidiary for
substantially the same purpose as such property was used by the Company or such
Restricted Subsidiary prior to such sale or transfer.
Payments and Modification of Subordinated Debt. Make any optional payment,
prepayment or redemption of any Subordinated Debt, nor amend or modify, or
consent or agree to any amendment or modification, which would shorten any
maturity or increase the amount of any payment of principal or increase the rate
(or require earlier payment) of interest on any such Subordinated Debt, nor
amend the subordination provisions of any agreement under which any Subordinated
Debt is issued or created or otherwise related thereto, nor enter into any
agreement or arrangement providing for the defeasance of any Subordinated
Indebtedness.
Payments and Modification of Senior Unsecured Debt. Make any optional
payment, prepayment or any optional or mandatory redemption of any Senior
Unsecured Debt, nor amend or modify, or consent or agree to any amendment or
modification, which would shorten any maturity or increase the amount of any
payment of principal or increase the rate (or require earlier payment) of
interest on any such Senior Unsecured Debt, nor enter into any agreement or
arrangement providing for the defeasance of any Senior Unsecured Debt; provided,
that the Company may make redemptions of Senior Unsecured Debt that are
permitted or required by the terms of the indenture governing the Senior
Unsecured Debt from the cash proceeds of a sale of common stock of the Company,
if (i) immediately before and after such redemption, no Default or Event of
Default shall exist or shall have occurred and be continuing (ii) the
representations and warranties contained in Article 4 shall be true and correct
on and as of the date thereof (both before and after such redemption is
consummated) as if made on the date such redemption is consummated, and (iii)
the Company shall have provided to the Agent before such redemption pro forma
financial statements reflecting the occurrence of such redemption demonstrating
compliance with the covenants contained in this Agreement, certified by a duly
authorized officer of the Company.
Negative Pledge Limitation. Enter into any agreement with any Person other
than the Banks pursuant hereto which prohibits or limits the ability of the
Company or any Subsidiary to create, incur, assume or suffer to exist any Lien
in favor of the Agent and the Banks upon any of its assets, rights, revenues or
property, real, personal or mixed, tangible or intangible, whether now owned or
hereafter acquired, except for any such prohibitions or limitations contained in
the indenture governing the Senior Unsecured Debt as in effect on the Effective
Date.
Inconsistent Agreements. Enter into any agreement containing any provision
which would be violated or breached by this Agreement or any of the transactions
contemplated hereby or by performance by the Company or any of its Restricted
Subsidiaries of its obligations in connection therewith.
Accounting Changes. The Company shall not change its fiscal year or make
any significant changes (i) in accounting treatment and reporting practices
except as permitted by generally accepted accounting principles and disclosed to
the Banks, or (ii) in tax reporting treatment except as permitted by law and
disclosed to the Banks.
ARTICLE 6.
DEFAULT
Events of Default. The occurrence of any one of the following events or
conditions shall be deemed an "Event of Default" hereunder unless waived
pursuant to Section 9.1:
Nonpayment. The Company shall fail to pay when due any principal of the
Notes, or any reimbursement obligation under Section 3.3 (whether by deemed
disbursement of a Loan or otherwise), or failure to pay any interest on the
Notes or any fees or any other amount payable hereunder, which failure continues
for a period of five days; or
Misrepresentation. Any representation or warranty made by the Company in
Article 4 hereof or by the Company or any Guarantor in any Security Document or
any other certificate, report, financial statement or other document furnished
by or on behalf of the Company or any Guarantor in connection with this
Agreement, shall prove to have been incorrect in any material respect when made
or deemed made; or
Certain Covenants. The Company or any Guarantor shall fail to perform or
observe any term, covenant or agreement contained in Article 5 hereof, and any
such failure shall remain unremedied for 30 calendar days after notice thereof
shall have been given to the Company or such Guarantor, as the case may be, by
the Agent; or
Other Defaults. The Company or any Guarantor shall fail to perform or
observe any other term, covenant or agreement contained in this Agreement or in
any Security Document, and any such failure shall remain unremedied for 30
calendar days after notice thereof shall have been given to the Company or such
Guarantor, as the case may be, by the Agent (or such longer or shorter period of
time as may be specified in such Security Document); or
Cross Default. The Company or any Restricted Subsidiary shall fail to pay
any part of the principal of, the premium, if any, or the interest on, or any
other payment of money due under any of its Indebtedness (other than
Indebtedness hereunder), beyond any period of grace provided with respect
thereto, which individually or together with other such Indebtedness as to which
any such failure exists has an aggregate outstanding principal amount in excess
of $1,000,000; or if the Company or any Restricted Subsidiary fails to perform
or observe any other term, covenant or agreement contained in, or if any other
event or condition occurs or exists under, any agreement, document or instrument
evidencing or securing any such Indebtedness having such aggregate outstanding
principal amount, or under which any such Indebtedness was incurred, issued or
created, beyond any period of grace, if any, provided with respect thereto if
the effect of such failure is either (i) to cause, or permit the holders of such
Indebtedness (or a trustee on behalf of such holders) to cause, any payment in
respect of such Indebtedness to become due prior to its due date or (ii) to
permit the holders of such Indebtedness (or a trustee on behalf of such holders)
to elect a majority of the board of directors of the Company; or
Judgments. One or more judgments or orders for the payment of money in an
aggregate amount of $1,000,000 shall be rendered against the Company or any
Restricted Subsidiary, or any other judgment or order (whether or not for the
payment of money) shall be rendered against or shall affect the Company or any
Restricted Subsidiary which causes or could cause a material adverse change in
the business, properties, operations or condition, financial or otherwise, of
the Company or any Restricted Subsidiary or which does or could have a material
adverse effect on the legality, validity or enforceability of this Agreement,
the Notes or any Security Document, and either (i) such judgment or order shall
have remained unsatisfied and the Company or such Restricted Subsidiary shall
not have taken action necessary to stay enforcement thereof by reason of pending
appeal or otherwise, prior to the expiration of the applicable period of
limitations for taking such action or, if such action shall have been taken, a
final order denying such stay shall have been rendered, or (ii) enforcement
proceedings shall have been commenced by any creditor upon any such judgment or
order; or
ERISA. The occurrence of a Reportable Event that results in or could result
in liability of the Company, any Restricted Subsidiary or their ERISA Affiliates
to the PBGC or to any Plan and such Reportable Event is not corrected within
thirty (30) days after the occurrence thereof; or the occurrence of any
Reportable Event which could constitute grounds for termination of any Plan of
the Company, any Restricted Subsidiary or their ERISA Affiliates by the PBGC or
for the appointment by the appropriate United States District Court of a trustee
to administer any such Plan and such Reportable Event is not corrected within
thirty (30) days after the occurrence thereof; or the filing by the Company, any
Restricted Subsidiary or any of their ERISA Affiliates of a notice of intent to
terminate a Plan or the institution of other proceedings to terminate a Plan; or
the Company, any Restricted Subsidiary or any of their ERISA Affiliates shall
fail to pay when due any liability to the PBGC or to a Plan; or the PBGC shall
have instituted proceedings to terminate, or to cause a trustee to be appointed
to administer, any Plan of the Company, any Guarantor, Restricted Subsidiary or
any of their ERISA Affiliates; or any Person engages in a Prohibited Transaction
with respect to any Plan which results in or could result in liability of the
Company, Restricted Subsidiary, any of their ERISA Affiliates, any Plan of the
Company, any Restricted Subsidiary or their ERISA Affiliates or fiduciary of any
such Plan; or failure by the Company, any Restricted Subsidiary or any of their
ERISA Affiliates to make a required installment or other payment to any Plan
within the meaning of Section 302(f) of ERISA or Section 412(n) of the Code that
results in or could result in liability of the Company, any Restricted
Subsidiary or any of their ERISA Affiliates to the PBGC or any Plan; or the
withdrawal of the Company, any Restricted Subsidiary or any of their ERISA
Affiliates from a Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(9a)(2) of ERISA; or the Company, any
Restricted Subsidiary or any of their ERISA Affiliates becomes an employer with
respect to any Multiemployer Plan without the prior written consent of the
Required Banks; or
Insolvency, Etc. The Company or any Restricted Subsidiary shall be
dissolved or liquidated (or any judgment, order or decree therefor shall be
entered), or shall generally not pay its debts as they become due, or shall
admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors, or shall institute, or there
shall be instituted against the Company or any Restricted Subsidiary, any
proceeding or case seeking to adjudicate it a bankrupt or insolvent or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief or protection of debtors or seeking the
entry of an order for relief, or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
assets, rights, revenues or property, and, if such proceeding is instituted
against the Company or such Restricted Subsidiary and is being contested by the
Company or such Restricted Subsidiary, as the case may be, in good faith by
appropriate proceedings, such proceeding shall remain undismissed or unstayed
for a period of 60 days; or the Company or such Restricted Subsidiary shall take
any action (corporate or other) to authorize or further any of the actions
described above in this subsection; or
Loan Documents. Any event of default described in any Loan Document shall
have occurred and be continuing, or any material provision of Article 8 hereof
or of any Loan Document shall at any time for any reason cease to be valid and
binding and enforceable against any obligor thereunder, or the validity, binding
effect or enforceability thereof shall be contested by any Person, or any
obligor shall deny that it has any or further liability or obligation
thereunder, or any Loan Document shall be terminated, invalidated or set aside,
or be declared ineffective or inoperative or in any way cease to give or provide
to the Banks and the Agent the benefits purported to be created thereby.
Control. Xxxxx LaCrosse, and trusts established by him for the benefit of
his spouse and issue, shall cease to own directly or indirectly free and clear
of all Liens at least 65% of the securities of the Company of each class having
ordinary voting power for the election of directors (other than securities which
have such power only by reason of the happening of a contingency); or any Person
other than Xxxxx LaCrosse and Xxxxx Xxxxxxxx shall possess, directly or
indirectly, the power to direct or cause the direction of the management and
policies of the Company, whether through the ownership of voting securities or
by contract or otherwise.
Remedies.
Upon the occurrence and during the continuance of any Event of Default, the
Agent may and, upon being directed to do so by the Required Banks, shall by
notice to the Company (i) terminate the Commitments or (ii) declare the
outstanding principal of, and accrued interest on, the Notes, all unpaid
reimbursement obligations in respect of drawings under Letters of Credit and all
other amounts owing under this Agreement to be immediately due and payable, or
(iii) demand immediate delivery of cash collateral, and the Company agrees to
deliver such cash collateral upon demand, in an amount equal to the maximum
amount that may be available to be drawn at any time prior to the stated expiry
of all outstanding Letters of Credit, or any one or more of the foregoing,
whereupon the Commitments shall terminate forthwith and all such amounts,
including such cash collateral, shall become immediately due and payable,
provided that in the case of any event or condition described in Section 6.1(h)
with respect to the Company or any Restricted Subsidiary, the Commitments shall
automatically terminate forthwith and all such amounts, including such cash
collateral, shall automatically become immediately due and payable without
notice; in all cases without demand, presentment, protest, diligence, notice of
dishonor or other formality, all of which are hereby expressly waived. Such cash
collateral delivered in respect of outstanding Letters of Credit shall be
deposited in a special cash collateral account to be held by the Agent as
collateral security for the payment and performance of the Company's obligations
under this Agreement to the Banks and the Agent.
The Agent may and, upon being directed to do so by the Required Banks,
shall, in addition to the remedies provided in Section 6.2(a), exercise and
enforce any and all other rights and remedies available to it, whether arising
under this Agreement, the Notes or any Security Document or under applicable
law, in any manner deemed appropriate by the Agent, including suit in equity,
action at law, or other appropriate proceedings, whether for the specific
performance (to the extent permitted by law) of any covenant or agreement
contained in this Agreement or in the Notes or any Security Document or in aid
of the exercise of any power granted in this Agreement, the Notes or any
Security Document.
Upon the occurrence and during the continuance of any Event of Default,
each Bank may at any time and from time to time, without notice to the Company
or any Guarantor (any requirement for such notice being expressly waived by the
Company and each Guarantor) set off and apply against any and all of the
obligations of the Company and each Guarantor now or hereafter existing under
this Agreement, whether owing to such Bank or any other Bank or the Agent, any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Bank to or for
the credit or the account of the Company or any Guarantor and any property of
the Company or any Guarantor from time to time in possession of such Bank,
irrespective of whether or not such Bank shall have made any demand hereunder
and although such obligations may be contingent and unmatured. Each of the
Company and the Guarantors hereby grants to the Banks and the Agent a lien on
and security interest in all such deposits, indebtedness and property as
collateral security for the payment and performance of the obligations of the
Company and each Guarantor under this Agreement. The rights of such Bank under
this Section 6.2(c) are in addition to other rights and remedies (including,
without limitation, other rights of setoff) which such Bank may have.
ARTICLE 7.
THE AGENT AND THE BANKS
Appointment and Authorization. Each Bank hereby irrevocably appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement, the Notes and the Security Documents as are
delegated to the Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto. The provisions of this Article 7
are solely for the benefit of the Agent and the Banks, and neither the Company
nor any Guarantor shall have any rights as a third party beneficiary of any of
the provisions hereof. In performing its functions and duties under this
Agreement, the Agent shall act solely as agent of the Banks and does not assume
and shall not be deemed to have assumed any obligation towards or relationship
of agency or trust with or for the Company.
Agent and Affiliates. NBD Bank in its capacity as a Bank hereunder shall
have the same rights and powers hereunder as any other Bank and may exercise or
refrain from exercising the same as though it were not the Agent. NBD Bank and
its affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to, and generally engage in any kind of banking,
trust, financial advisory or other business with the Company, any Guarantor or
any of their respective Restricted Subsidiaries as if it were not acting as
Agent hereunder, and may accept fees and other consideration therefor without
having to account for the same to the Banks.
Scope of Agent's Duties. The Agent shall have no duties or responsibilities
except those expressly set forth herein, and shall not, by reason of this
Agreement, have a fiduciary relationship with any Bank, and no implied
covenants, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or shall otherwise exist against the Agent. As to any
matters not expressly provided for by this Agreement (including, without
limitation, collection and enforcement actioned under the Notes and the Security
Documents), the Agent shall not be required to exercise any discretion or take
any action, but the Agent shall take such action or omit to take any action
pursuant to the reasonable written instructions of the Required Banks and may
request instructions from the Required Banks. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, pursuant to the written
instructions of the Required Banks (or all of the Banks, as the case may be, in
accordance with the requirements of this Agreement), which instructions and any
action or omission pursuant thereto shall be binding upon all of the Banks;
provided, however, that the Agent shall not be required to act or omit to act
if, in the judgment of the Agent, such action or omission may expose the Agent
to personal liability or is contrary to this Agreement, the Notes or the
Security Documents or applicable law.
Reliance by Agent. The Agent shall be entitled to rely upon any
certificate, notice, document or other communication (including any cable,
telegram, telex, facsimile transmission or oral communication) believed by it to
be genuine and correct and to have been sent or given by or on behalf of a
proper Person. The Agent may treat the payee of any Note as the holder thereof
unless and until the Agent receives written notice of the assignment thereof
pursuant to the terms of this Agreement signed by such payee and the Agent
receives the written agreement of the assignee that such assignee is bound
hereby to the same extent as if it had been an original party hereto. The Agent
may employ agents (including without limitation collateral agents) and may
consult with legal counsel (who may be counsel for the Company), independent
public accountants and other experts selected by it and shall not be liable to
the Banks, except as to money or property received by it or its authorized
agents, for the negligence or misconduct of any such agent selected by it with
reasonable care or for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
Default. The Agent shall not be deemed to have knowledge of the occurrence
of any Default or Event of Default, unless the Agent has received written notice
from a Bank or the Company or any Guarantor specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice, the Agent shall give written notice thereto to
the Banks.
Liability of Agent. Neither the Agent nor any of its directors, officers,
agents, or employees shall be liable to the Banks for any action taken or not
taken by it or them in connection herewith with the consent or at the request of
the Required Banks or in the absence of its or their own gross negligence or
willful misconduct. Neither the Agent nor any of its directors, officers, agents
or employees shall be responsible for or have any duty to ascertain, inquire
into or verify (i) any recital, statement, warranty or representation contained
in this Agreement, any Note or any Security Document, or in any certificate,
report, financial statement or other document furnished in connection with this
Agreement, (ii) the performance or observance of any of the covenants or
agreements of the Company or any Guarantor, (iii) the satisfaction of any
condition specified in Article II hereof, or (iv) the validity, effectiveness,
legal enforceability, value or genuineness of this Agreement, Notes or the
Security Documents or any collateral subject thereto or any other instrument or
document furnished in connection herewith.
Nonreliance on Agent and Other Banks. Each Bank acknowledges and agrees
that it has, independently and without reliance on the Agent or any other Bank,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of the Company and the Guarantors and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decision in taking or not taking action under this Agreement. The Agent shall
not be required to keep itself informed as to the performance or observance by
the Company or any Guarantor of this Agreement, the Notes or the Security
Documents or any other documents referred to or provided for herein or to
inspect the properties or books of the Company or any Guarantor and, except for
notices, reports and other documents and information expressly required to be
furnished to the Banks by the Agent hereunder, the Agent shall not have any duty
or responsibility to provide any Bank with any information concerning the
affairs, financial condition or business of the Company, any Guarantor or any of
their respective Restricted Subsidiaries which may come into the possession of
the Agent or any of its affiliates.
Indemnification. The Banks agree to indemnify the Agent (to the extent not
reimbursed by the Company or any Guarantor, but without limiting any obligation
of the Company or any Guarantor to make such reimbursement), ratably according
to the respective principal amounts of the Advances then outstanding made by
each of them (or if no Advances are at the time outstanding, ratably according
to the respective amounts of their Commitments), from and against any and all
claims, damages, losses, liabilities, costs or expenses of any kind or nature
whatsoever (including, without limitation, fees and disbursements of counsel)
which may be imposed on, incurred by, or asserted against the Agent in any way
relating to or arising out of this Agreement or the transactions contemplated
hereby or any action taken or omitted by the Agent under this Agreement,
provided, however, that no Bank shall be liable for any portion of such claims,
damages, losses, liabilities, costs or expenses 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 without limitation fees and expenses of
counsel) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent that
the Agent is not reimbursed for such expenses by the Company or any Guarantor,
but without limiting the obligation of the Company or any Guarantor to make such
reimbursement. Each Bank agrees to reimburse the Agent promptly upon demand for
its ratable share of any amounts owing to the Agent by the Banks pursuant to
this Section. If the indemnity furnished to the Agent under this Section shall,
in the judgment of the Agent, be insufficient or become impaired, the Agent may
call for additional indemnity from the Banks and cease, or not commence, to take
any action until such additional indemnity is furnished.
Successor Agent. The Agent may resign as such at any time upon ten days'
prior written notice to the Company and the Banks. In the event of any such
resignation, the Required Banks shall, by an instrument in writing delivered to
the Company and the Agent, appoint a successor, which shall be a commercial bank
organized under the laws of the United States or any State thereof and having a
combined capital and surplus of at least $500,000,000. If a successor is not so
appointed or does not accept such appointment before the Agent's resignation
becomes effective, the retiring Agent may appoint a temporary successor to act
until such appointment by the Required Banks is made and accepted or if no such
temporary successor is appointed as provided above by the retiring Agent, the
Required Banks shall thereafter perform all the duties of the Agent hereunder
until such appointment by the Required Banks is made and accepted. Any successor
to the Agent shall execute and deliver to the Company and the Banks an
instrument accepting such appointment and thereupon such successor Agent,
without further act, deed, conveyance or transfer shall become vested with all
of the properties, rights, interests, powers, authorities and obligations of its
predecessor hereunder with like effect as if originally named as Agent
hereunder. Upon request of such successor Agent, the Company and the retiring
Agent shall execute and deliver such instruments of conveyance, assignment and
further assurance and do such other things as may reasonably be required for
more fully and certainly vesting and confirming in such successor Agent all such
properties, rights, interests, powers, authorities and obligations. The
provisions of this Article VII shall thereafter remain effective for such
retiring Agent with respect to any actions taken or omitted to be taken by such
Agent while acting as the Agent hereunder.
Sharing of Payments. The Banks agree among themselves that, in the event
that any Bank shall obtain payment in respect of any Advance or any other
obligation owing to the Banks under this Agreement through the exercise of a
right of set-off, banker's lien, counterclaim or otherwise in excess of its
ratable share of payments received by all of the Banks on account of the
Advances and other obligations (or if no Advances are outstanding, ratably
according to the respective amounts of the Commitments), such Bank shall
promptly purchase from the other Banks participations in such Advances and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all of the Banks share such payment in
accordance with such ratable shares. The Banks further agree among themselves
that if payment to a Bank obtained by such Bank through the exercise of a right
of set-off, banker's lien, counterclaim or otherwise as aforesaid shall be
rescinded or must otherwise be restored, each Bank which shall have shared the
benefit of such payment shall, by repurchase of participations theretofore sold,
return its share of that benefit to each Bank whose payment shall have been
rescinded or otherwise restored. Each of the Company and the Guarantors agrees
that any Bank so purchasing such a participation may, to the fullest extent
permitted by law, exercise all rights of payment, including set-off, banker's
lien or counterclaim, with respect to such participation as fully as if such
Bank were a holder of such Advance or other obligation in the amount of such
participation. The Banks further agree among themselves that, in the event that
amounts received by the Banks and the Agent hereunder are insufficient to pay
all such obligations or insufficient to pay all such obligations when due, the
fees and other amounts owing to the Agent in such capacity shall be paid
therefrom before payment of obligations owing to the Banks under this Agreement.
Except as otherwise expressly provided in this Agreement, if any Bank or the
Agent shall fail to remit to the Agent or any other Bank an amount payable by
such Bank or the Agent to the Agent or such other Bank pursuant to this
Agreement on the date when such amount is due, such payments shall be made
together with interest thereon for each date from the date such amount is due
until the date such amount is paid to the Agent or such other Bank at a rate per
annum equal to the rate at which borrowings are available to the payee in its
overnight federal funds market. It is further understood and agreed among the
Banks and the Agent that if the Agent shall engage in any other transactions
with the Company and shall have the benefit of any collateral or security
therefor which does not expressly secure the obligations arising under this
Agreement except by virtue of a so-called dragnet clause or comparable
provision, the Agent shall be entitled to apply any proceeds of such collateral
or security first in respect of the obligations arising in connection with such
other transaction before application to the obligations arising under this
Agreement.
ARTICLE 8.
GUARANTY
As an inducement to the Banks and the Agent to enter into the transactions
contemplated by this Agreement, each Guarantor agrees with the Banks and the
Agent as follows:
Guaranty of Obligations.
Each Guarantor hereby (i) guarantees, as principal obligor and not as
surety only, to the Banks the prompt payment of the principal of and any and all
accrued and unpaid interest (including interest which otherwise may cease to
accrue by operation of any insolvency law, rule, regulation or interpretation
thereof) on the Advances and all other obligations of the Company to the Banks
and the Agent under this Agreement when due, whether by scheduled maturity,
acceleration or otherwise, all in accordance with the terms of this Agreement
and the Notes, including, without limitation, default interest, indemnification
payments and all reasonable costs and expenses incurred by the Banks and the
Agent in connection with enforcing any obligations of the Company hereunder,
including without limitation the reasonable fees and disbursements of counsel,
(ii) guarantees to the Agent and the Banks the prompt and punctual performance
and observance of each and every term, covenant or agreement contained in this
Agreement and the Notes to be performed or observed on the part of the Company
and (iii) agrees to make prompt payment, on demand, of any and all reasonable
costs and expenses incurred by the Banks or the Agent in connection with
enforcing the obligations of the Guarantors hereunder, including, without
limitation, the reasonable fees and disbursements of counsel (all of the
foregoing being collectively referred to as the "Guaranteed Obligations").
If for any reason any duty, agreement or obligation of the Company
contained in this Agreement shall not be performed or observed by the Company as
provided therein, or if any amount payable under or in connection with this
Agreement shall not be paid in full when the same becomes due and payable, each
Guarantor undertakes to perform or cause to be performed promptly each of such
duties, agreements and obligations and to pay forthwith each such amount to the
Agent for the account of the Banks regardless of any defense or setoff or
counterclaim which the Company may have or assert, and regardless of any other
condition or contingency.
Nature of Guaranty. The obligations of the Guarantors hereunder constitute
an absolute and unconditional and irrevocable guaranty of payment and not a
guaranty of collection and are wholly independent of and in addition to other
rights and remedies of the Banks and the Agent and are not contingent upon the
pursuit by the Banks and the Agent of any such rights and remedies, such pursuit
being hereby waived by the Guarantors.
Waivers and Other Agreements. Each Guarantor hereby unconditionally (a)
waives any requirement that the Banks or the Agent, upon the occurrence of an
Event of Default first make demand upon, or seek to enforce remedies against the
Company before demanding payment under or seeking to enforce the obligations of
the Guarantors hereunder, (b) covenants that the obligations of the Guarantors
hereunder will not be discharged except by complete performance of all
obligations of the Company contained in this Agreement and the Notes, (c) agrees
that the obligations of the Guarantors hereunder shall remain in full force and
effect without regard to, and shall not be affected or impaired, without
limitation, by any invalidity, irregularity or unenforceability in whole or in
part of this Agreement or the Notes, or any limitation on the liability of the
Company thereunder, or any limitation on the method or terms of payment
thereunder which may or hereafter be caused or imposed in any manner whatsoever
(including, without limitation, usury laws), (d) waives diligence, presentment
and protest with respect to, and any notice of default or dishonor in the
payment of any amount at any time payable by the Company under or in connection
with this Agreement or the Notes, and further waives any requirement of notice
of acceptance of, or other formality relating to, the obligations of the
Guarantors hereunder and (e) agrees that the Guaranteed Obligations shall
include any amounts paid by the Company to the Banks or the Agent which may be
required to be returned to the Company or to its representative or to a trustee,
custodian or receiver for the Company.
Obligations Absolute. The obligations, covenants, agreements and duties of
the Guarantors under this Agreement shall not be released, affected or impaired
by any of the following whether or not undertaken with notice to or consent of
the Guarantors: (a) an assignment or transfer, in whole or in part, of the
Advances made to the Company or of this Agreement or any Note although made
without notice to or consent of the Guarantors, or (b) any waiver by any Bank or
the Agent or by any other Person, of the performance or observance by the
Company of any of the agreements, covenants, terms or conditions contained in
this Agreement or in the other Loan Documents, or (c) any indulgence in or the
extension of the time for payment by the Company of any amounts payable under or
in connection with this Agreement or any other Loan Document, or of the time for
performance by the Company of any other obligations under or arising out of this
Agreement or any other Loan Document, or the extension or renewal thereof, or
(d) the modification, amendment or waiver (whether material or otherwise) of any
duty, agreement or obligation of the Company set forth in this Agreement or any
other Loan Document (the modification, amendment or waiver from time to time of
this Agreement and the other Loan Documents being expressly authorized without
further notice to or consent of the Guarantors), or (e) the voluntary or
involuntary liquidation, sale or other disposition of all or substantially all
of the assets of the Company or any receivership, insolvency, bankruptcy,
reorganization, or other similar proceedings, affecting the Company or any of
its assets, or (f) the merger or consolidation of the Company or the Guarantors
with any other Person, or (g) the release of discharge of the Company or the
Guarantors from the performance or observance of any agreement, covenant, term
or condition contained in this Agreement or any other Loan Document, by
operation of law, or (h) any other cause whether similar or dissimilar to the
foregoing which would release, affect or impair the obligations, covenants,
agreements or duties of the Guarantors hereunder.
No Investigation by Banks or Agent. Each Guarantor hereby waives
unconditionally any obligation which, in the absence of such provision, the
Banks or the Agent might otherwise have to investigate or to assure that there
has been compliance with the law of any jurisdiction with respect to the
Guaranteed Obligations recognizing that, to save both time and expense, each
Guarantor has requested that the Banks and the Agent not undertake such
investigation. Each Guarantor hereby expressly confirms that the obligations of
such Guarantor hereunder shall remain in full force and effect without regard to
compliance or noncompliance with any such law and irrespective of any
investigation or knowledge of any Bank or the Agent of any such law.
Indemnity. As a separate, additional and continuing obligation, each
Guarantor unconditionally and irrevocably undertakes and agrees with the Banks
and the Agent that, should the Guaranteed Obligations not be recoverable from
the Guarantors under Section 8.1 for any reason whatsoever (including, without
limitation, by reason of any provision of this Agreement or the Notes or any
other agreement or instrument executed in connection herewith being or becoming
void, unenforceable, or otherwise invalid under any applicable law) then,
notwithstanding any knowledge thereof by any Bank or the Agent at any time, each
Guarantor as sole, original and independent obligor, upon demand by the Agent,
will make payment to the Agent for the account of the Banks and the Agent of the
Guaranteed Obligations by way of a full indemnity in such currency and otherwise
in such manner as is provided in this Agreement and the Notes.
Subordination, Subrogation, Etc. Each Guarantor agrees that any present or
future indebtedness, obligations or liabilities of the Company to any Guarantor
shall be fully subordinate and junior in right and priority of payment to any
present or future indebtedness, obligations or liabilities of the Company to the
Banks and the Agent. Each Guarantor waives any right of subrogation to the
rights of any Bank or the Agent against the Company or any other Person
obligated for payment of the Guaranteed Obligations and any right of
reimbursement or indemnity whatsoever arising or accruing out of any payment
which any Guarantor may make pursuant to this Agreement and the Notes, and any
right of recourse to security for the debts and obligations of the Company,
unless and until the entire principal balance of and interest on the Guaranteed
Obligations shall have been paid in full.
Waiver. To the extent that it lawfully may, each Guarantor agrees that it
will not at any time insist upon or plead, or in any manner whatsoever claim or
take any benefit or advantage of any applicable present or future stay,
extension or moratorium law, which may affect observance or performance of the
provisions of this Agreement or the Notes; nor will it claim, take or insist
upon any benefit or advantage of any present or future law providing for the
evaluation or appraisal of any security for its obligations hereunder or the
Company under this Agreement and under the Notes prior to any sale or sales
thereof which may be made under or by virtue of any instrument governing the
same; nor will it, after any such sale or sales claim or exercise any right,
under any applicable law, to redeem any portion of such security so sold.
8.9 Limitation of Guaranteed Amount. (a) As used hereinbelow, the following
terms shall have the following respective meanings:
"Adjusted Net Worth" of any Guarantor shall mean, as of any date of
determination thereof, the excess of (i) the aggregate value of all assets of
such Guarantor, contingent or otherwise, at a fair valuation, as of the date of
such determination, over (ii) the sum of all liabilities of such Guarantor,
contingent or otherwise, as of the date of such determination (excluding,
however, all liabilities of such Guarantor in respect of this Guaranty).
"Maximum Guaranteed Amount" of any Guarantor shall mean, as of any date of
determination thereof, the greatest of (i) the aggregate amount of all Advances
to or for the benefit of the Company to the extent that the proceeds thereof are
extended directly to such Guarantor or are used to make a Valuable Transfer to
such Guarantor, and (ii) ninety-five percent (95%) of the Adjusted Net Worth of
such Guarantor at the date it incurred its obligation under this Guaranty, and
(iii) the maximum amount for which this Guaranty then may be enforced against
such Guarantor.
"Valuable Transfer" shall mean, in respect of any Guarantor, (i) all loans
or advances made to such Guarantor with proceeds of the Advances which have not
been repaid by such Guarantor, (ii) all capital contributions made to such
Guarantor with proceeds of the Advances, (iii) all debt securities or other
obligations of such Guarantor acquired from such Guarantor or retired by such
Guarantor with proceeds of the Advances, (iv) the fair market value of all
property acquired with proceeds of the Advances and transferred, absolutely and
not as collateral, to such Guarantor, (v) all equity securities of such
Guarantor acquired from such Guarantor with proceeds of the Advances, and (vi)
the value of any quantifiable economic benefits not otherwise included in
clauses (i) through (v) above, but includable in accordance with applicable
federal and state laws governing determinations of fraudulent conveyances or the
insolvency of debtors, accruing to such Guarantor as a result of the Advances.
(b) Notwithstanding any other provision in this Guaranty to the contrary,
the maximum liability of each Guarantor hereunder shall in no event exceed such
Guarantor's Maximum Guaranteed Amount. Each Guarantor agrees, however, that the
obligations guaranteed hereunder may at any time and from time to time exceed
the Maximum Guaranteed Amount of such Guarantor or the aggregate Maximum
Guaranteed Amounts of all of the Guarantors without impairing this Guaranty or
affecting the rights and remedies of the Agent and the Banks. No payment or
payments made by the Company or any receipt or collection by the Agent or any
Bank or any setoff or appropriation or application at any time or from time to
time in reduction or in payment of the obligations guaranteed hereunder shall be
deemed to modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder, and each Guarantor shall remain liable for the Guaranteed
Obligations up to its Maximum Guaranteed Amount until the first to occur of the
full and final payment to the Agent and the Banks by such Guarantor of its
Maximum Guaranteed Amount and the full and final payment of the obligations
guaranteed hereunder.
(c) In addition to the above limitation there is a further limitation as
follows: in the event of a bankruptcy, insolvency or other similar proceeding
involving a Guarantor, the claims made by the Banks with respect to the Guaranty
of such Guarantor and allowed in such proceeding shall be reduced by the claims
made by the Banks with respect to the Intercompany Notes of such Guarantor and
allowed in such proceeding (after reducing the claims with respect to the
Intercompany Notes by (i) the amount of any offset against such claims relating
to Indebtedness or other obligations owed by the Company to such Guarantor, and
(ii) the amount, if any, of the claims with respect to such Intercompany Notes
that is determined to be equitably subordinated to any other claim against such
Guarantor), to the end that there shall be no duplication of such claims.
ARTICLE 9.
MISCELLANEOUS
Amendments, Etc.
No amendment, modification, termination or waiver of any provision of this
Agreement nor any consent to any departure therefrom shall be effective unless
the same shall be in writing and signed by the Company and Required Banks and,
to the extent any rights or duties of the Agent may be affected thereby, the
Agent, provided, however, that no such amendment, modification, termination,
waiver or consent shall, without the consent of the Agent and all of the Banks,
(i) authorize or permit the extension of time for, or any reduction of the
amount of, any payment of the principal of, or interest on, the Notes or any
Letter of Credit reimbursement obligation, or any fees or other amount payable
hereunder, (ii) amend, extend or terminate the respective Commitments of any
Bank set forth on the signature pages hereof or modify the provisions of this
Section regarding the taking of any action under this Section or the definition
of Required Banks or any provision of this Agreement requiring the consent of
all of the Banks, (iii) provide for the discharge of any Guarantor or the
release of any collateral subject to any Security Document, or (iv) modify any
other provision of this Agreement which by its terms requires the consent of all
of the Banks.
Any such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Notwithstanding anything herein to the contrary, no Bank that is in default
of any of its obligations, covenants or agreements under this Agreement shall be
entitled to vote (whether to consent or to withhold its consent) with respect to
any amendment, modification, termination or waiver of any provision of this
Agreement or any departure therefrom or any direction from the Banks to the
Agent, and, for purposes of determining the Required Banks at any time when any
Bank is in default under this Agreement, the Commitments and Advances of such
defaulting Banks shall be disregarded.
Notices.
Except as otherwise provided in Sections 2.4(a), 2.7 and 9.2(c) hereof, all
notices and other communications hereunder shall be in writing and shall be sent
to the Company, and the Guarantors c/o the Company, at X.X. Xxx 0000,
Xxxxxxxxxxxx, XX 00000-0000, or by facsimile to facsimile No. 317/685-8810, or
delivered to the Company, and the Guarantors c/o the Company, at 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx, XX 00000, in all the above cases to the attention of Xxxxx
LaCrosse, President; and to the Agent and the Banks at the respective addresses
for notices set forth on the signatures pages hereof, or to such other address
as may be designated by the Company, any Guarantor, the Agent or any Bank by
notice to the other parties hereto. All notices and other communications shall
be deemed to have been given at the time of actual delivery thereof to such
address, or, unless sooner delivered, (i) if sent by certified or registered
mail, postage prepaid, to such address, on the third day after the date of
mailing, (ii) if sent by telex, upon receipt of the appropriate answerback, or
(iii) if sent by facsimile transmission, upon confirmation of receipt by
telephone at the number specified for confirmation, provided, however, that
notices to the Agent shall not be effective until received.
Notices by the Company to the Agent with respect to terminations or
reductions of the Commitments pursuant to Section 2.2, requests for Advances
pursuant to Section 2.4, requests for continuations or conversions of Loans
pursuant to Section 2.7 and notices of prepayment pursuant to Section 3.1 shall
be irrevocable and binding on the Company.
Any notice to be given by the Company to the Agent pursuant to Sections
2.4, 2.7 or 3.1 and any notice to be given by the Agent or any Bank hereunder,
may be given by telephone, and all such notices given by the Company must be
immediately confirmed in writing in the manner provided in Section 9.2(a). Any
such notice given by telephone shall be deemed effective upon receipt thereof by
the party to whom such notice is to be given. The Company and the Guarantors
shall indemnify and hold harmless the Banks and the Agent from any and all
losses, damages, liabilities and claims arising from their good faith reliance
on any such telephone notice.
No Waiver By Conduct; Remedies Cumulative. No course of dealing on the part
of the Agent or any Bank, nor any delay or failure on the part of the Agent or
any Bank in exercising any right, power or privilege hereunder shall operate as
a waiver of such right, power or privilege or otherwise prejudice the Agent's or
such Bank's rights and remedies hereunder; nor shall any single or partial
exercise thereof preclude any further exercise thereof or the exercise of any
other right, power or privilege. No right or remedy conferred upon or reserved
to the Agent or any Bank under this Agreement, the Notes or any Security
Document is intended to be exclusive of any other right or remedy, and every
right and remedy shall be cumulative and in addition to every other right or
remedy granted thereunder or now or hereafter existing under any applicable law.
Every right and remedy granted by this Agreement, the Notes or any Security
Document or by applicable law to the Agent or any Bank may be exercised from
time to time and as often as may be deemed expedient by the Agent or any Bank
and, unless contrary to the express provisions of this Agreement, the Notes or
any Security Document, irrespective of the occurrence or continuance of any
Default or Event of Default.
Reliance on and Survival of Various Provisions. All terms, covenants,
agreements, representations and warranties of the Company or any Guarantor made
herein or in any Security Document or in any certificate, report, financial
statement or other document furnished by or on behalf of the Company or any
Guarantor in connection with this Agreement shall be deemed to be material and
to have been relied upon by the Banks, notwithstanding any investigation
heretofore or hereafter made by any Bank or on such Bank's behalf, and those
covenants and agreements of the Company set forth in Section 3.7, 3.9 and 9.5
hereof shall survive the repayment in full of the Advances and the termination
of the Commitments.
Expenses; Indemnification.
Company agrees to pay, or reimburse the Agent for the payment of, on
demand, (i) the reasonable fees and expenses of counsel to the Agent, including
without limitation the fees and expenses of Xxxxxxxxx Xxxxxx PLLC, in connection
with the preparation, execution, delivery and administration of this Agreement,
the Notes, the Security Documents and in connection with advising the Agent as
to its rights and responsibilities with respect thereto, and in connection with
any amendments, waivers or consents in connection therewith, and (ii) all stamp
and other taxes and fees payable or determined to be payable in connection with
the execution, delivery, filing or recording of this Agreement, Notes, the
Security Documents (or the verification of filing, recording, perfection or
priority thereof) or the consummation of the transactions contemplated hereby,
and any and all liabilities with respect to or resulting from any delay in
paying or omitting to pay such taxes or fees, and (iii) all reasonable costs and
expenses of the Agent and the Banks (including reasonable fees and expenses of
counsel and whether incurred through negotiations, legal proceedings or
otherwise)) in connection with any Default or Event of Default or the
enforcement of, or the exercise or preservation of any rights under, this
Agreement or the Notes or any Security Document or in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement and (iv) all reasonable costs and expenses of the Agent and the Banks
(including reasonable fees and expenses of counsel) in connection with any
action or proceeding relating to a court order, injunction or other process or
decree restraining or seeking to restrain the Agent from paying any amount
under, or otherwise relating in any way to, any Letter of Credit and any and all
costs and expenses which any of them may incur relative to any payment under any
Letter of Credit.
The Company hereby indemnifies and agrees to hold harmless the Banks and
the Agent, and their respective officers, directors, employees and agents,
harmless from and against any and all claims, damages, losses, liabilities,
costs or expenses of any kind or nature whatsoever which the Banks or the Agent
or any such Person may incur or which may be claimed against any of them by
reason of or in connection with any Letter of Credit, and neither any Bank nor
the Agent or any of their respective officers, directors, employees or agents
shall be liable or responsible for: (i) the use which may be made of any Letter
of Credit or for any acts or omissions of any beneficiary in connection
therewith; (ii) the validity, sufficiency or genuineness of documents or of any
endorsement thereon, even if such documents should in fact prove to be in any or
all respects invalid, insufficient, fraudulent or forged; (iii) payment by the
Agent to the beneficiary under any Letter of Credit against presentation of
documents which do not comply with the terms of any Letter of Credit, including
failure of any documents to bear any reference or adequate reference to such
Letter of Credit; (iv) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit; or (v) any other event or
circumstance whatsoever arising in connection with any Letter of Credit;
provided, however, that the Company shall not be required to indemnify the Banks
and the Agent and such other Persons, and the Banks shall be liable to the
Company to the extent, but only to the extent, of any direct, as opposed to
consequential or incidental, damages suffered by the Company which were caused
by (A) the Agent's wrongful dishonor of any Letter of Credit after the
presentation to it by the beneficiary thereunder of a draft or other demand for
payment and other documentation strictly complying with the terms and conditions
of such Letter of Credit, or (B) the Agent's payment to the beneficiary under
any Letter of Credit against presentation of documents which do not comply with
the terms of the Letter of Credit to the extent, but only to the extent, that
such payment constitutes gross negligence of willful misconduct of the Agent. It
is understood that in making any payment under a Letter of Credit the Agent will
rely on documents presented to it under such Letter of Credit as to any and all
matters set forth therein without further investigation and regardless of any
notice or information to the contrary, and such reliance and payment against
documents presented under a Letter of Credit substantially complying with the
terms thereof shall not be deemed gross negligence or willful misconduct of the
Agent in connection with such payment. It is further acknowledged and agreed
that the Company may have rights against the beneficiary or others in connection
with any Letter of Credit with respect to which the Banks are alleged to be
liable and it shall be a precondition of the assertion of any liability of the
Banks under this Section that the Company shall first have exhausted all
reasonable remedies in respect of the alleged loss against such beneficiary and
any other parties obligated or liable in connection with such Letter of Credit
and any related transactions.
The Company hereby indemnifies and agrees to hold harmless the Banks and
the Agent, and their respective officers, directors, employees and agents, from
and against any and all claims, damages, losses, liabilities, costs or expenses
of any kind or nature whatsoever (including reasonable attorneys fees and
disbursements incurred in connection with any investigative, administrative or
judicial proceeding whether or not such Person shall be designated as a party
thereto) which the Banks or the Agent or any such Person may incur or which may
be claimed against any of them by reason of or in connection with entering into
this Agreement or the transactions contemplated hereby, including without
limitation those arising under Environmental Laws; provided, however, that the
Company shall not be required to indemnify any such Bank and the Agent or such
other Person, to the extent, but only to the extent, that such claim, damage,
loss, liability, cost or expense is attributable to the gross negligence or
willful misconduct of such Bank or the Agent, as the case may be.
Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, provided that the
Company may not, without the prior consent of the Banks, assign its rights or
obligations hereunder or under the Notes or any Security Document and the Banks
shall not be obligated to make any Advance hereunder to any entity other than
the Company.
Each Bank may, with the prior consent of the Company (which shall not be
unreasonably withheld and which is not required if there should then exist a
Default or Event of Default or if the sale is to an Affiliate of such Bank) may
sell to any financial institution or institutions, and such financial
institution or institutions may further sell, a participation interest
(undivided or divided) in, the Advances and such Bank's rights and benefits
under this Agreement, the Notes and the Security Documents, and to the extent of
that participation interest such participant or participants shall have the same
rights and benefits against the Company under Section 3.7, 3.9 and 6.2(c) as it
or they would have had if such participant or participants were the Bank making
the Advances to the Company hereunder, provided, however, that (i) such Bank's
obligations under this Agreement shall remain unmodified and fully effective and
enforceable against such Bank, (ii) such Bank shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii) such
Bank shall remain the holder of its Notes for all purposes of this Agreement,
(iv) the Company, the Agent and the other Banks shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement, and (v) such Bank shall not grant to its
participant any rights to consent or withhold consent to any action taken by
such Bank or the Agent under this Agreement other than action requiring the
consent of all of the Banks hereunder.
The Agent from time to time in its sole discretion may appoint agents for
the purpose of servicing and administering this Agreement and the transactions
contemplated hereby and enforcing or exercising any rights or remedies of the
Agent provided under this Agreement, the Notes, any Security Documents or
otherwise. In furtherance of such agency, the Agent may from time to time direct
that the Company and the Guarantors provide notices, reports and other documents
contemplated by this Agreement (or duplicates thereof) to such agent. The
Company and each Guarantor hereby consents to the appointment of such agent and
agrees to provide all such notices, reports and other documents and to otherwise
deal with such agent acting on behalf of the Agent in the same manner as would
be required if dealing with the Agent itself.
Each Bank may, with the prior consent of the Company (which shall not be
unreasonably withheld and which is not required if there should then exist a
Default or Event of Default) and the Agent, assign to one or more banks or other
entities all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and the Note held by it); provided, however, that (i) each such
assignment shall be of a uniform, and not a varying, percentage of all rights
and obligations, (ii) except in the case of an assignment of all of a Bank's
rights and obligations under this Agreement, (A) the amount of the Commitment of
the assigning Bank being assigned pursuant to each such assignment (determined
as of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $10,000,000, and in integral multiples of
$5,000,000 thereafter, or such lesser amount as the Company and the Agent may
consent to and (B) after giving effect to each such assignment, the amount of
the Commitment of the assigning Bank shall in no event be less than $5,000,000,
(iii) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance in the form of Exhibit G hereto (an "Assignment and Acceptance"),
together with the Note subject to such assignment and a processing and
recordation fee of $3,000, and (iv) any Bank may without the consent of the
Company or the Agent, and without paying any fee, assign to any Affiliate of
such Bank that is a bank or financial institution or to any other Bank all or
any portion of its rights and obligations under this Agreement. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in such Assignment and Acceptance, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the remaining portion of an assigning
Bank's rights and obligations under this Agreement, such Bank shall cease to be
a party hereto).
By executing and delivering an Assignment and Acceptance, the Bank assignor
thereunder and the assignee thereunder confirm to and agree with each other and
the other parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Company or the
performance or observance by the Company of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.6 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Agent, such
assigning Bank or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement; (v) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Bank.
The Agent shall maintain at its address designated on the signature pages
hereof a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Banks and
the Commitment of, and principal amount of the Advances owing to, each Bank from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Company, the Agent
and the Banks may treat each Person whose name is recorded in the Register as a
Bank hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Company or any Bank at any reasonable time and
from time to time upon reasonable prior notice.
Upon its receipt of an Assignment and Acceptance executed by an assigning
Bank and an assignee, together with the Note subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been completed, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the Company. Within five
Business Days after its receipt of such notice, the Company, at its own expense,
shall execute and deliver to the Agent in exchange for the surrendered Note a
new Note to the order of such assignee in an amount equal to the Commitment
assumed by it pursuant to such Assignment and Acceptance and, if the assigning
Bank has retained a Commitment hereunder, a new Note to the order of the
assigning Bank in an amount equal to the Commitment retained by it hereunder.
Such new Note shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit C hereto.
The Company shall not be liable for any costs or expenses of any Bank in
effectuating any participation or assignment under this Section 9.6.
The Banks may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.6, disclose to
the assignee or participant or proposed assignee or participant any information
relating to the Company, provided, that disclosures to proposed assignees or
participants the assignments or sales of participations to which are subject to
the consent of the Company may only be made with the consent of the Company,
which consent shall not be unreasonably withheld.
Notwithstanding any other provision set forth in this Agreement, any Bank
may at any time create a security interest in, or assign, all or any portion of
its rights under this Agreement (including, without limitation, the Loans owing
to it and the Note held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System; provided, that such creation of a security interest or assignment shall
not release such Bank from its obligations under this Agreement.
Counterparts and Telefacsimile Signatures. This Agreement may be executed
in any number of counterparts, and by telefacsimile signature, all of which
taken together shall constitute one and the same instrument, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
Governing Law. This Agreement is a contract made under, and shall be
governed by and construed in accordance with, the law of the State of Michigan
applicable to contracts made and to be performed entirely within such State and
without giving effect to choice of law principles of such State. Each of the
Company and the Guarantors and the Banks further agrees that any legal or
equitable action or proceeding with respect to this Agreement, the Notes or any
Security Document or the transactions contemplated hereby shall be brought in
any court of the State of Michigan, or in any court of the United States of
America sitting in Michigan, and the Company and each Guarantor and the Banks
hereby submits to and accepts generally and unconditionally the jurisdiction of
those courts with respect to its person and property, and, in the case of the
Company and each Guarantor irrevocably appoints NWS Michigan, Inc., whose
address in Michigan is 00000 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000, as its agent for
service of process and irrevocably consents to the service of process in
connection with any such action or proceeding by personal delivery to such agent
or to the Company or such Guarantor, as the case may be, or by the mailing
thereof by registered or certified mail, postage prepaid to the Company or such
Guarantor at its address for notices pursuant to Section 9.2. The Company shall
at all times maintain such an agent in Michigan for such purpose and shall
notify the Banks and the Agent of such agent's address in Michigan within ten
days of any change of address. Nothing in this paragraph shall affect the right
of the Banks and the Agent to serve process in any other manner permitted by law
or limit the right of the Banks or the Agent to bring any such action or
proceeding against the Company or any Guarantor or property in the courts of any
other jurisdiction. The Company and each Guarantor and the Banks hereby
irrevocably waives any objection to the laying of venue of any such action or
proceeding in the above described courts.
Table of Contents and Headings. The table of contents and the headings of
the various subdivisions hereof are for the convenience of reference only and
shall in no way modify any of the terms or provisions hereof.
Construction of Certain Provisions. If any provision of this Agreement
refers to any action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
Integration and Severability. This Agreement, the Notes, and the Security
Documents embody the entire agreement and understanding between the Company, the
Guarantors and the Agent and the Banks, and supersede all prior agreements and
understandings, relating to the subject matter hereof. In case any one or more
of the obligations of the Company or any Guarantor under this Agreement, the
Notes or any Security Document shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
obligations of the Company and the Guarantors shall not in any way be affected
or impaired thereby, and such invalidity, illegality or unenforceability in one
jurisdiction shall not affect the validity, legality or enforceability of the
obligations of the Company or any Guarantor under this Agreement, the Notes or
any Security Document in any other jurisdiction.
Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to, or
would be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default or an Event of Default if such action is taken or
such condition exists.
Interest Rate Limitation. Notwithstanding any provisions of this Agreement,
the Notes or any Security Document, in no event shall the amount of interest
paid or agreed to be paid by the Company exceed an amount computed at the
highest rate of interest permissible under applicable law. If, from any
circumstances whatsoever, fulfillment of any provision of this Agreement, the
Notes or any Security Document at the time performance of such provision shall
be due, shall involve exceeding the interest rate limitation validly prescribed
by law which a court of competent jurisdiction may deem applicable hereto, then,
ipso facto, the obligations to be fulfilled shall be reduced to an amount
computed at the highest rate of interest permissible under applicable law, and
if for any reason whatsoever any Bank shall ever receive as interest an amount
which would be deemed unlawful under such applicable law such interest shall be
automatically applied to the payment of principal of the Advances outstanding
hereunder (whether or not then due and payable) and not to the payment of
interest, or shall be refunded to the Company if such principal and all other
obligations of the Company to the Banks have been paid in full.
Waiver of Jury Trial. The Banks, the Agent, the Company and the Guarantors,
after consulting or having had the opportunity to consult with counsel,
knowingly, voluntarily and intentionally waive any right any of them may have to
a trial by jury in any litigation based upon or arising out of this Agreement or
any related instrument or agreement or any of the transactions contemplated by
this Agreement or any course of conduct, dealing, statements (whether oral or
written) or actions of any of them. Neither any Bank, the Agent, any Guarantor
nor the Company shall seek to consolidate, by counterclaim or otherwise, any
such action in which a jury trial has been waived with any other action in which
a jury trial cannot be or has not been waived. These provisions shall not be
deemed to have been modified in any respect or relinquished by any party hereto
except by a written instrument executed by such party.
[THE REST OF THE PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered on the 25th day of January, 1999, which shall be the
Effective Date of this Agreement, notwithstanding the day and year first above
written.
Address for Notices: NATIONAL WINE & SPIRITS, INC.
000 Xxxx Xxxxxx Xxxxxx By:
Xxxxxxxxxxxx, Xxxxxxx 00000
Its:
Attention: J. Smoke Xxxxxx
Facsimile No.: (000) 000-0000
NWS, INC.
By:
Its:
NWS-ILLINOIS, LLC
By:
Its:
NATIONAL WINE & SPIRITS CORPORATION
By:
Its:
NWS MICHIGAN, INC.
By:
Its:
Address for Notices: NBD BANK, Individually as a Bank
and as Agent
701 First National Building By:
Xxxxxxx, Xxxxxxxx 00000
Its:
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
Commitment Amount: $25,000,000
Percentage of
Total Commitments: 41.667%
Total Commitment Amount of
all Banks: $60,000,000
BNY FINANCIAL CORPORATION
0000 Xxxxx Xxxxxx, Xxxxx Xxxxx By:
Xxx Xxxx, XX 00000
Its:
Attention: Xxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
Commitment Amount: $12,500,000
Percentage of
Total Commitments: 20.833%
Total Commitment Amount of
all Banks: $60,000,000
LASALLE NATIONAL BANK
000 Xxxxx XxXxxxx Xxxxxx By:
Xxxxxxx, XX 00000
Its:
Attention: Xxxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
Commitment Amount: $12,500,000
Percentage of
Total Commitments: 20.833%
Total Commitment Amount of
all Banks: $60,000,000
NATIONAL CITY BANK OF INDIANA
One National City Center By:
Xxxxxxxxxxxx, XX 00000
Its:
Attention: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
Commitment Amount: $10,000,000
Percentage of
Total Commitments: 16.667%
Total Commitment Amount of
all Banks: $60,000,000
DETROIT 6-10 358986-18
IMDR 449182
