AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
XXXXXX CO., INC.,
THE FINANCIAL INSTITUTIONS PARTIES HERETO
AND
FIRSTAR BANK, NATIONAL ASSOCIATION,
AS AGENT
DATED AS OF APRIL 14, 2000
TABLE OF CONTENTS
Page
1. Definitions 1
2. The Credit Facilities; Fees
2.1 Revolving Loans 12
2.2 Interest Rate Options 13
2.3 Borrowing Procedure for Revolving Loans 14
2.4 Continuation and Conversion Procedure 15
2.5 Commitment Fee 16
2.6 Reduction or Termination of Revolving
Loan Commitment 16
2.7 Term Loan 17
2.8 Interest Rates 17
2.9 Payments 18
2.10 Prepayments 18
2.11 Additional LIBOR Rate Loan Provisions 19
2.12 Setoff 20
2.13 Pro Rata Treatment; Sharing of Payments 20
2.14 Capital Adequacy 21
2.15 Yield Protection 21
2.16 Taxes 22
2.17 Other Fees 24
2.18 Use of Proceeds 25
3. Representations and Warranties
3.1 Organizations; Subsidiaries; Corporate Power 25
3.2 Authorization and Binding Effect 25
3.3 Financial Statements 26
3.4 Litigation 26
3.5 Restricted Payments 26
3.6 Indebtedness; No Default 26
3.7 Ownership of Properties; Liens and Encumbrances 27
3.8 Tax Returns Filed 27
3.9 Margin Stock 27
3.10 Investment Company 27
3.11 ERISA Liabilities 28
3.12 No Burdensome Agreements 28
3.13 Trademarks, Etc. 28
3.14 Dump Sites 28
3.15 Tanks 29
3.16 Other Environmental Conditions 29
3.17 Changes in Laws 29
3.18 Environmental Judgments, Decrees and Orders 29
3.19 Environmental Permits and Licenses 29
3.20 Year 2000 29
3.21 Accuracy of Information 29
4. Conditions for Borrowing
4.1 On or Before the Effective Date 30
4.2 On or Before Each Subsequent Borrowing Date 31
5. Affirmative Covenants
5.1 Annual Financial Statement 31
5.2 Interim Financial Statements 32
5.3 Management Letters 32
5.4 Other Financial Information 32
5.5 Books and Records; Inspection 32
5.6 Insurance 32
5.7 Condition of Property 33
5.8 Payment of Taxes 33
5.9 Compliance with Law 33
5.10 ERISA Certificate 33
5.11 Compliance with Other Loan Documents 34
5.12 Notice of Default or Claimed Default 34
6. Negative Covenants
6.1 Restricted Payments 35
6.2 Limitations on Indebtedness 35
6.3 Limitations on Guaranty Obligations 35
6.4 Limitations on Lease Obligations 35
6.5 Limitation on Liens and Encumbrances 35
6.6 Limitation on Mergers, Etc. 35
6.7 Limitation on Acquisitions, Advances and Investments 35
6.8 Lines of Business 36
6.9 Sales of Receivables 36
6.10 Sales of Subsidiaries 36
6.11 Sale and Leaseback 36
6.12 Indebtedness to Capitalization Ratio 36
6.13 Interest Coverage Ratio 37
6.14 Indebtedness to EBITDA Ratio 37
6.15 Transactions with Affiliates 37
7. Events of Default; Remedies
7.1 Events of Default 37
7.2 Remedies 38
8. The Agent
8.1 Appointment and Duties of Agent and Issuing Bank 39
8.2 Discretion and Liability of the Agent 39
8.3 Notice of Default 40
8.4 Consultation 40
8.5 Communications To and From the Agent 40
8.6 Limitations of Agency 40
8.7 No Representation or Warranty 41
8.8 Lender Credit Decision 41
8.9 Indemnity 41
8.10 Resignation or Removal of Agent; Successor
Agent 41
9. Miscellaneous
9.1 Survival of Representations and Warranties 42
9.2 Indemnification 42
9.3 Expenses 43
9.4 Notices 43
9.5 Assignments and Participations 43
9.6 Titles 44
9.7 Parties Bound; Waiver 45
9.8 Governing Law 45
9.9 Submission to Jurisdiction; Service of
Process 46
9.10 Waiver of Jury Trial 46
9.11 Limitation of Liability 46
9.12 Amendments 46
9.13 Counterparts 47
9.14 Effect on Original Credit Agreement 47
9.15 Entire Agreement 48
Schedules
Schedule 1.1 Existing Liens and Security Interests
Schedule 3.1 Subsidiaries
Schedule 3.4 Litigation
Schedule 3.18 Environmental Matters
Schedule 3.20 Year 2000 Compliance
Schedule 6.3 Guaranty Obligations
Exhibits
Exhibit A Form of Revolving Note
Exhibit B Form of Term Note
Exhibit C Form of Notice of Borrowing
Exhibit D Form of Conversion/Continuation Notice
Exhibit E Form of Opinion of Company Counsel
Exhibit F Form of Assignment and Acceptance
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 14, 2000, is
among XXXXXX CO., INC., a Wisconsin corporation (the "Company"), the financial
institutions parties hereto (individually a "Lender" and collectively the
"Lenders") and FIRSTAR BANK, NATIONAL ASSOCIATION, as agent for the Lenders (in
such capacity, the "Agent").
RECITALS
The Lenders, the Agent and the Company acknowledge the following:
A. Pursuant to a Credit Agreement dated as of February 15, 1999 as amended
(the "Original Credit Agreement"), among the Company the financial institutions
party thereto (the "Original Lenders") and Firstar Bank, National Association
(formerly known as Firstar Bank Milwaukee, N.A.) as agent, the Original Lenders
provided certain credit facilities to the Company.
B. The Company, the Lenders and the Agent wish to amend and restate the
Original Amended and Restated Credit Agreement in its entirety.
AGREEMENTS
In consideration of the promises and agreements set forth below, the
Company, the Lenders and the Agent agree to amend and restate the Original
Credit Agreement in its entirety to read as follows:
1. Definitions. As used in this Agreement, the following terms have the
following meanings:
"Adjusted LIBOR Rate" means, with respect to a LIBOR Rate Loan for the
relevant Interest Period, a rate per annum (rounded upward, if necessary, to the
next higher 1/16 of 1%) determined according to the following formula:
LIBOR Rate
Adjusted LIBOR Rate = -------------------------------------------
1.00 - LIBOR Reserve Requirement
"Affiliate" of any Person means any other Person, directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns
10% or more of any class of voting securities (or other ownership interests) of
the controlled Person or possesses, directly or indirectly, the power to direct
or cause the direction of the management or policies of the controlled Person,
whether by ownership of stock (or other ownership interests), by contract or
otherwise.
"Amortization Expense" means, for any period, the aggregate amount reported
as an expense by the Company and its Consolidated Subsidiaries for the
amortization of intangible assets on the consolidated statement of income for
such period of the Company and its Consolidated Subsidiaries.
"Applicable Margin" means (a) in the case of Revolving Loans comprised of
Base Rate Loans, minus 100 basis points (-1.0%) per annum, (b)
in the case of Term Loans comprised of Base Rate Loans, minus 50 base points
(-.50%) per annum, (c) in the case of Revolving Loans comprised of LIBOR Rate
Loans, plus 80 basis points (.80%) per annum and (d) in the case of Term Loans
comprised of LIBOR Rate Loans, plus 125 basis points (1.25%) per annum.
"Base Rate" means, for any day, the higher of (a) 0.50% per annum above the
latest Federal Funds Rate for such day and (b) the Prime Rate in effect for such
day.
"Base Rate Loans" means a Loan that bears interest at a rate determined by
reference to the Base Rate.
"Borrowing Date" means each date on which a Loan is made by a Lender to the
Company.
"Business Day" means a day (other than Saturday or Sunday) on which banks
are open for business in Milwaukee , Wisconsin and, with respect to the making,
payment or rate determination of a LIBOR Rate Loan, a day on which dealings in
United States dollars are carried on in the London interbank market.
"Capitalized Lease Obligations" means the aggregate amount of the
obligations of the Company and its Consolidated Subsidiaries under any lease or
rental arrangement which would be capitalized under GAAP and shown as a
liability on the consolidated balance sheet of the Company and its Consolidated
Subsidiaries.
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the
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Securities Exchange Act of 1934) of 35% or more of the outstanding shares of
voting stock of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consolidated Subsidiaries" means Subsidiaries whose financial statements
are consolidated with those of the Company in accordance with GAAP.
"Controlled Group" means a group of trades or businesses (whether or not
incorporated) under common control, as defined in the regulations issued
pursuant to section 414(c) of the Code or such other regulations prescribed by
the Pension Benefit Guaranty Corporation pursuant to section 4001(b)(1) of
ERISA, of which the Company is a part.
"Conversion/Continuation Notice" means a notice in substantially the form
of Exhibit D.
"Default" means any act, event, condition or omission which, with the
giving of notice or lapse of time, would constitute an Event of Default if
uncured or unremedied.
"Depreciation Expense" means, for any period, the aggregate amount reported
as an expense by the Company and its Consolidated Subsidiaries for the
depreciation of tangible assets on the consolidated statement of income for such
period of the Company and its Consolidated Subsidiaries.
"Earnings Before Taxes" means, for any period, the Net Earnings of the
Company and its Consolidated Subsidiaries, but before income taxes, as reported
on the consolidated statement of income for such period of the Company and its
Consolidated Subsidiaries.
"Effective Date" means April 14, 2000.
"Eligible Assignee" means (a) a commercial bank organized under the laws of
the United States, or any state thereof, and having a combined capital and
surplus of at least $100,000,000, (b) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of any such country, and
having a combined capital and surplus of at least $100,000,000 (provided that
such bank is acting through a branch or agency located in the United
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States) and (c) a Person that is primarily engaged in the business of commercial
banking and which is an Affiliate of a Lender.
"Environmental Laws" means all federal, state and local laws including
statutes, regulations, ordinances, codes, rules and other governmental
restrictions and requirements relating to the discharge of air pollutants, water
pollutants or process waste water or otherwise relating to the environment or
hazardous substances including, but not limited to, the Federal Solid Waste
Disposal Act, the Federal Clean Air Act, the Federal Clean Water Act, the
Federal Resource Conservation and Recovery Act of 1976, the Federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
regulations of the Environmental Protection Agency, regulations of the Nuclear
Regulatory Commission and regulations of any state department of natural
resources or state environmental protection agency now or at any time hereafter
in effect.
"ERISA" means, at any date, the Employee Retirement Income Security Act of
1974, and the regulations thereunder, all as the same shall be in effect at such
date.
"Event of Default" means the occurrence of any of the events described in
section 7.1.
"Federal Funds Rate" means, for any day, an interest rate per annum equal
to the weighted average of the rates on overnight, Federal funds transactions
with members of the Federal Reserve System arranged by Federal Funds brokers on
such day, as published for such day by the Federal Reserve Bank of New York in
the weekly statistical release designated as H.15(519), or any successor
publication, on the preceding Business Day opposite the caption "Federal Funds
Rate (Effective)", or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Agent from three Federal funds brokers of recognized standing
selected by it. In the case of a day which is not a Business Day, the Federal
Funds Rate for such day shall be the Federal Funds Rate for the preceding
Business Day.
"Firstar" means Firstar Bank, National Association (formerly known as
Firstar Bank, Milwaukee, N.A.), a national banking association.
"GAAP" means generally accepted accounting principles in effect in the
United States from time to time.
"Guaranty Obligations" means any direct or indirect liability or obligation
of the Company or any Subsidiary under any agreement, undertaking
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or arrangement under which the Company or a Subsidiary guarantees, endorses or
otherwise becomes or is liable for an obligation of any other Person.
"Indebtedness" of a Person means, without duplication, such Person's (a)
obligations for borrowed money, (b) obligations representing the deferred
purchase price of property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (c) obligations, whether or not assumed, secured by a mortgage lien,
pledge or security interest on the property of such Person, (d) obligations
which are evidenced by notes, acceptances or other instruments, (e) Capitalized
Lease Obligations, (f) obligations arising pursuant to Swap Contracts and (g)
obligations for which such Person is obligated pursuant to a letter of credit.
In the case of the Company, for purposes of the financial covenants in
section 6 of this Agreement, the Indebtedness under clause (f) shall be valued
at the Swap Termination Value if a "termination event" or "event of default" has
occurred under the Swap Contract and, at all other times, shall be deemed to be
$0.
"Indebtedness to Capitalization Ratio" means the relationship, expressed as
a numerical ratio, between:
(a) Indebtedness;
and
(b) the sum of (i) Indebtedness and (ii) Total Equity;
all as determined without duplication in accordance with GAAP applied on a
consistent basis to the Company and its Consolidated Subsidiaries as of the date
of determination.
"Indebtedness to EBITDA Ratio" means the relationship, expressed as a
numerical ratio, between:
(a) Indebtedness, as of the date of determination;
and
(b) the sum of (i) Earnings Before Taxes, (ii) Interest Expense, (iii)
Depreciation Expense and (iv) Amortization Expense, in each case for the
four quarter period ending on the date of determination; all as determined
in
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accordance with GAAP applied on a consistent basis to the Company and its
Consolidated Subsidiaries; provided, however, if the Company (a) acquires
the capital stock or other ownership interests of another Person (the
"Acquired Company") which, upon completion of the transaction, becomes a
Subsidiary or (b) acquires assets from another Person (the "Acquired
Assets"), then the Earnings Before Taxes, Interest Expense, Depreciation
Expense and Amortization Expense of the Acquired Company, or, in the case
of Acquired Assets, the portion thereof attributable to the Acquired
Assets, shall be added to or subtracted from, as the case may be, those of
the Company for the portion of the four quarter period preceding the date
of determination that the Company did not own the Acquired Company or the
Acquired Assets. The Company shall separately identify any amounts relating
to an Acquired Company or to Acquired Assets in the financial covenant
calculations required to be provided under section 5.2.
"Interest Coverage Ratio" means the relationship, expressed as a numerical
ratio, between:
(a) the sum of (i) Earnings Before Taxes and (ii) Interest Expense;
and
(b) Interest Expense;
all as determined without duplication in accordance with GAAP applied on a
consistent basis to the Company and its Consolidated Subsidiaries for the four
quarter period ending on the date of determination.
"Interest Expense" means, for any period, the aggregate amount which would
be reported as paid, incurred, or accrued as interest expense on the
consolidated statement of income for such period of the Company and its
Consolidated Subsidiaries.
"Interest Period" means, with respect to a LIBOR Rate Loan, a period of
one, two or three months commencing on (and including) a Business Day selected
by the Company pursuant to section 2.3(a) or 2.4(c) of this Agreement and ending
on (but excluding) the day which corresponds numerically to such date one, two
or three months thereafter (or, if such month has no numerically corresponding
date, on the last Business Day of such month), provided that:
(a) if an Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next
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following Business Day (unless such next following Business Day is in a new
calendar month in which case such Interest Period shall end on the
immediately preceding Business Day); and
(b) no Interest Period may end later than the Revolving Note Maturity
Date, in the case of a Revolving Loan or the Term Note Maturity Date, in
the case of a Term Loan.
"Lease Obligations" means, at any date, the obligations of the Company or
any Subsidiary under leases of real or personal property (including taxes,
insurance, maintenance and similar expenses which the Company or a Subsidiary is
required to pay under any such lease) whether or not such obligations are
reflected as liabilities on the consolidated balance sheet of the Company or in
a note thereto excluding, however, Capitalized Lease Obligations.
"LIBOR Rate" means, with respect to a LIBOR Rate Loan for the applicable
Interest Period, the interest rate at which deposits in United States dollars,
in an amount approximately equal to the requested LIBOR Rate Loan and having a
maturity approximately equal to the requested Interest Period, are offered to
the Agent by prime banks in the London interbank market at approximately 11 a.m.
(London time) two Business Days prior to the first day of such Interest Period.
The LIBOR Rate determined by the Agent shall, in the absence of manifest error,
be conclusive.
"LIBOR Rate Loan" means a Loan bearing interest at a rate determined by
reference to the Adjusted LIBOR Rate.
"LIBOR Reserve Requirement" means, with respect to a LIBOR Rate Loan for
the applicable Interest Period, the percentage (expressed as a decimal) equal to
the maximum aggregate reserve requirements (including, without limitation, any
marginal, special, emergency and supplemental reserves) established by the Board
of Governors of the Federal Reserve System for "eurocurrency liabilities" (as
defined in Regulation D of such Board), or for other liabilities which include
deposits of the type used in determining the LIBOR Rate, having a term
approximately equal to the applicable Interest Period.
"Loan" means an extension of credit by a Lender to the Company in the form
of a Revolving Loan or Term Loan.
"Loan Documents" means this Agreement, the Notes and all other documents,
instruments and agreements related to or executed in connection with this
Agreement and the transactions contemplated hereby.
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"Majority Lenders" means the Lenders holding in the aggregate at least 51%
of the aggregate outstanding principal balance of the Loans or, if there are no
Loans outstanding, Lenders whose aggregate Percentage is at least 51%.
"Multiemployer Plan" means any pension benefit plan subject to Title IV of
ERISA as defined in section 4001(a)(3) of ERISA, to which the Company, any of
its Subsidiaries or any member of the Controlled Group is required to contribute
on behalf of its employees.
"Net Earnings" means, for any period, the excess of:
(a) all revenues and income derived from operations in the ordinary
course of business (excluding extraordinary gains and profits upon the
disposition of investments and fixed assets),
over
(b) all expenses and other proper charges against income (including
payment or provision for all applicable income and other taxes, but
excluding extraordinary losses and losses upon the disposition of
investments and fixed assets),
all as determined for such period in accordance with GAAP applied on a
consistent basis to the Company and its Consolidated Subsidiaries.
"Note" means a Revolving Note or a Term Note and "Notes" means all
Revolving Notes and all Term Notes.
"Notice of Borrowing" means a notice in substantially the form of Exhibit
C.
"Percentage" means, for each Lender:
(a) a percentage equal to such Lender's Revolving Loan Commitment
divided by the aggregate Revolving Loan Commitments of all Lenders; or,
(b) if the aggregate Revolving Loan Commitments of all Lenders have
been terminated, a percentage equal to the outstanding principal amount of
Loans made by such Lender divided by the aggregate outstanding principal
amount of Loans made by all Lenders;
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and the Percentage of each Lender as of the date of execution of this Agreement
is set forth opposite its signature hereto.
"Permitted Liens" means (a) security interests and liens listed on Schedule
1.1 attached hereto, provided that the Indebtedness secured thereby shall not be
renewed, extended or increased; (b) liens for taxes, assessments or governmental
charges not delinquent or being contested in good faith by the Company or any
Subsidiary for which adequate reserves are established and maintained in
accordance with GAAP; (c) construction lien claims not delinquent; (d) purchase
money security interests or liens on any property to be used by the Company or a
Subsidiary in the normal course of its business, and created or incurred
simultaneously with the acquisition of such property, if such security interest
or lien is limited to the property so acquired and the aggregate Indebtedness
incurred by the Company and its Subsidiaries during any fiscal year which is
secured by such security interests and liens does not exceed $2,000,000; (e)
liens or deposits in connection with worker's compensation or other insurance or
to secure the performance of bids, trade contracts (other than for borrowed
money), leases, public or statutory obligations, surety or appeal bonds or other
obligations of like nature incurred in the ordinary course of business; (f)
security interests or liens in respect of capital assets acquired pursuant to
capitalized leases, provided the aggregate Capitalized Lease Obligations
(determined in accordance with GAAP) under all capitalized leases does not
exceed $2,000,000; and (h) easements, restrictions, minor title irregularities
and similar matters which have no material adverse effect as a practical matter
upon the ownership or use of its property by the Company or any Subsidiary.
"Permitted Swap Contract" means a Swap Contract between the Company and a
Lender (or any Affiliate of a Lender); provided that such agreement is entered
into in the ordinary course of business by the Company for the purpose of
mitigating the Company's risks with respect to interest rate volatility and not
for the purpose of speculation.
"Person" means any natural person, corporation, limited liability company,
joint venture, partnership, association, trust or other entity or any government
or political subdivision or any agency, department or instrumentality thereof.
"Plan" means any pension benefit plan subject to Title IV of ERISA,
including any Multiemployer Plan, maintained by the Company, any of its
Subsidiaries or any member of the Controlled Group or any such Plan to which the
Company, any of its Subsidiaries or any member of the Controlled Group is
required to contribute on behalf of its employees.
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"Prime Rate" means the rate of interest announced by the Agent from time to
time as its base rate for interest rate determinations. The Prime Rate may or
may not be the lowest interest rate charged by the Agent.
"Quoted Rate" means, as to a Swing Line Loan, the per annum rate of
interest quoted to the Company by Firstar as the rate of interest applicable to
the Swing Line Loan requested by the Company.
"Quoted Rate Loan" means a Swing Line Loan that bears interest based on the
Quoted Rate.
"Reportable Event" means a reportable event as that term is defined in
ERISA.
"Restricted Payments" means dividends or other distributions by the Company
or any Subsidiary based upon the stock or other ownership interest of the
Company or any Subsidiary (except dividends payable to the Company and dividends
payable solely in stock of the Company) and purchases, redemptions and other
acquisitions, direct or indirect, by the Company or any Subsidiary, of the stock
or other ownership interest of the Company or any Subsidiary.
"Revolving Loan" means an extension of credit made by a Lender to the
Company pursuant to section 2.1 of this Agreement.
"Revolving Loan Commitment" means the obligation of each Lender to make
Revolving Loans to the Company. The total Revolving Loan Commitment of the
Lenders is $76,000,000 as of the date of the execution of this Agreement and is
subject to reduction from time to time pursuant to section 2.6 and is further
subject to reduction and reinstatement pursuant to section 2.19. The Revolving
Loan Commitment of each Lender as of the date of execution of this Agreement is
set forth opposite its signature hereto.
"Revolving Note" means a promissory note of the Company in the form of
Exhibit A, appropriately completed, evidencing Revolving Loans made by a Lender
to the Company and "Revolving Notes" means each Revolving Note.
"Revolving Note Maturity Date" means April 13, 2001, or such earlier date
on which the Revolving Notes become immediately due and payable pursuant to
section 7.2 of this Agreement.
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"Subordinated Debt" means Indebtedness for borrowed money of the Company or
any of its Subsidiaries, the payment of which is fully subordinated, in a manner
satisfactory to the Lenders, to the prior payment of the Notes.
"Subsidiary" means as of a particular date (a) any corporation more than
50% of whose outstanding stock having ordinary voting power for the election of
directors shall at the time be owned or controlled by the Company or by one of
its Subsidiaries and (b) any limited liability company more than 50% of whose
outstanding ownership interests shall at the time be owned or controlled by the
Company or by one of its Subsidiaries.
"Swap Contract" means any agreement (including any master agreement and the
schedules thereto) designed to protect at least one of the parties thereto from
fluctuations in interest rates, exchange rates or forward rates including, but
not limited to, dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate swap, cap or
collar agreements, forward rate currency or interest rate options, puts and
warrants.
"Swap Termination Value" means, in respect to any Swap Contract, the
termination value determined in accordance with such Swap Contract after taking
into account any legally enforceable netting agreement.
"Swing Line Loan" means a Revolving Loan made to the Company by Firstar
pursuant to Section 2.1(b). Swing Line Loans shall be a subfacility of Firstar's
Revolving Loan Commitment and thus, a subfacility of the Lenders' total
Revolving Loan Commitment.
"Term Loan" means a term loan made by a Lender to the Company pursuant to
section 2.7.
"Term Loan Amount" means $24,000,000.
"Term Note" means a promissory note of the Company in the form of Exhibit
B, appropriately completed, evidencing a Term Loan made by a Lender to the
Company and "Term Notes" means each Term Note.
"Term Note Maturity Date" means April 13, 2003 or such earlier date on
which the Term Notes become due and payable pursuant to section 7.2 of this
Agreement.
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"Total Equity" means the aggregate amount shown as shareholders' equity as
reported on the consolidated balance sheet of the Company and its Consolidated
Subsidiaries.
"Type" means, with respect to any Loan, its nature as a Base Rate Loan or
as a LIBOR Rate Loan.
2. The Credit Facilities; Fees.
2.1 Revolving Loans.
(a) During the period from the Effective Date to the Revolving
Note Maturity Date, each Lender will make Revolving Loans to the
Company, subject to the terms and conditions hereof, in an amount
equal to such Lender's Percentage of the amount of Revolving Loans
requested by the Company on the applicable Borrowing Date, up to the
maximum amount at any time outstanding of such Lender's Revolving Loan
Commitment; provided, however, that the Lenders shall have no
obligation to make Revolving Loans to the Company if, after giving
effect thereto, the sum of the aggregate outstanding principal amount
of Revolving Loans would exceed the total Revolving Loan Commitments.
Within such maximum amount Revolving Loans may be made, repaid and
made again. The Revolving Loans made by a Lender shall be evidenced by
a Revolving Note payable to the order of such Lender and shall be
payable on the Revolving Note Maturity Date. Although each Revolving
Note shall be expressed to be payable in the amount of the payee
Lender's Revolving Loan Commitment on the Effective Date, the Company
shall be obligated to pay only the amount of Revolving Loans actually
disbursed to or for the account of the Company by the payee Lender,
together with interest on the unpaid balance of the sums so disbursed,
which remain outstanding from time to time as shown on the records of
the payee Lender. Except as set forth below, the Revolving Loans made
by the Lenders on a Borrowing Date shall be made ratably in accordance
with each Lender's Percentage.
(b) The parties agree that for ease of administration and to
avoid frequent transfers of funds, Firstar may at its option and from
time to time make Swing Line Loans to the Company without
proportionate loans by the other Lenders. Notwithstanding any
provision of this Agreement to the contrary:
(i) The aggregate outstanding principal amount of all
outstanding Swing Line Loans shall not exceed $5,000,000;
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(ii) The Company may request a Swing Line Loan by a
telephonic request therefor to Firstar not later than 3 p.m.,
Milwaukee, Wisconsin time on the requested Borrowing Date;
(iii) Swing Line Loans shall be evidenced by the Revolving
Note payable to the order of Firstar;
(iv) Swing Line Loans shall be Base Rate Loans or Quoted
Rate Loans, at the option of the Company; and
(v) Swing Line Loans may be prepaid at any time in whole or
in part without premium or penalty and all payments of principal
and interest made by the Company on Swing Line Loans shall be
made to and retained by Firstar.
Except as expressly set forth to the contrary in this Agreement, Swing Line
Loans shall be governed by the provisions of this Agreement applicable to
Revolving Loans.
During any period that any Swing Line Loans are outstanding, the Lenders
agree that at any time, upon the request of Firstar, each Lender will make a
Revolving Loan to the Company by transferring to Firstar an amount equal to such
Lender's Percentage of the aggregate principal amount of, and accrued interest
on, the Swing Line Loans then outstanding. Such transfer shall be considered a
Revolving Loan (which shall be a Base Rate Loan) by that Lender to the Company
and a payment of the Swing Line Loans by the Company to Firstar. If an Event of
Default occurs while Swing Line Loans are outstanding, each Lender agrees to
purchase from Firstar, at any time upon Firstar's request, a participation in
such Swing Line Loans in an amount equal to such Lender's Percentage of the then
outstanding principal amount of, and accrued interest on, the Swing Line Loans,
and the principal amount of such participation shall bear interest at the
greater of the Base Rate or the interest rate in effect for such Swing Line
Loans.
2.2 Interest Rate Options.
(a) Revolving Loans. Revolving Loans, except for Swing Line
Loans, may be Base Rate Loans or LIBOR Rate Loans, or a combination
thereof. The Company shall select the Type of Revolving Loan (and in
the case of LIBOR Rate Loans, the applicable Interest Period) in
accordance with sections 2.3(a) and 2.4(c).
13
(b) Term Loans. Term Loans may be Base Rate Loans or LIBOR Rate
Loans, or a combination thereof. The Company shall select the Type of
Term Loan (and in the case of LIBOR Rate Loans, the applicable
Interest Period) in accordance with section 2.4(c).
(c) Additional Provisions. The aggregate principal amount of
LIBOR Rate Loans made by the Lenders on a Borrowing Date, or pursuant
to an election by the Company to either (a) convert Base Rate Loans to
LIBOR Rate Loans or (b) continue LIBOR Rate Loans, shall be in a
minimum amount of $1,000,000 and in integral multiples of $100,000
above such minimum. After giving effect to any advance under section
2.1 or conversion or continuation under section 2.4, there may not be
more than 10 different Interest Periods in effect.
2.3 Borrowing Procedure for Revolving Loans.
(a) The Company shall request Revolving Loans by submitting a
Notice of Borrowing to the Agent. The Notice of Borrowing must be
received by the Agent (i) in the case of requested Revolving Loans
comprised of LIBOR Rate Loans, not later than 11 a.m., Milwaukee,
Wisconsin time, on a Business Day which is three Business Days prior
to the requested Borrowing Date (which must be a Business Day) and
(ii) in the case of requested Revolving Loans comprised of Base Rate
Loans, not later than 11 a.m., Milwaukee, Wisconsin time, on the
requested Borrowing Date (which must be a Business Day). Each Notice
of Borrowing must specify the amount of the requested Revolving Loans,
the Type of requested Revolving Loans and, if the Company requests
LIBOR Rate Loans, the applicable Interest Period. The aggregate amount
of each type of Revolving Loans made on each Borrowing Date shall be
in a minimum amount of $1,000,000 and in integral multiples of
$100,000 above such minimum. Each Notice of Borrowing shall be
irrevocable and shall constitute a certification by the Company that
the borrowing conditions specified in sections 4.3(b) and 4.3(c) will
be satisfied on the specified Borrowing Date. The Agent will promptly
notify the Lenders of the requested Revolving Loans. On or before 3
p.m., Milwaukee, Wisconsin time, on the specified Borrowing Date each
Lender shall deposit its Percentage of the requested Revolving Loans
with the Agent in immediately available funds. Upon fulfillment of the
applicable borrowing conditions, the Agent shall deposit the Revolving
Loans in the Company's account maintained with the Agent or as the
Company may otherwise direct in writing.
(b) Unless the Agent shall have been notified by telephone,
confirmed promptly thereafter in writing, by a Lender not later than 2
p.m., Milwaukee, Wisconsin time, on a Borrowing Date that such Lender
will
14
not make available to the Agent such Lender's Percentage of the
requested Revolving Loans, the Agent may assume that such Lender has
made such amount available to the Agent and, in reliance upon such
assumption, the Agent may (but shall not be required) to make
available to the Company on such Borrowing Date a corresponding
amount. If and to the extent that such Lender shall not have so made
such amount available to the Agent and the Agent in such circumstances
has made such amount available to the Company, such Lender shall on
the Business Day following the Borrowing Date make such amount,
together with interest at the Federal Funds Rate for each day during
such period, available to the Agent. If such amount is so made
available, such payment to the Agent shall constitute such Lender's
Revolving Loan on the Borrowing Date for all purposes of this
Agreement. If such amount is not made available to the Agent on the
Business Day following the Borrowing Date, the Agent shall notify the
Company of such failure to fund and, upon demand by the Agent, the
Company shall pay such amount to the Agent for the Agent's account
together with interest thereon, for each day from the date the Agent
made such amount available to the Company to the date such amount is
repaid to the Agent, at the interest rate specified in section 2.8(a).
(c) The failure of any Lender to make a Revolving Loan shall not
relieve any other Lender of its obligation hereunder to make a
Revolving Loan on the applicable Borrowing Date, but no Lender shall
be responsible for the failure of any other Lender to make the
Revolving Loan to be made by such other Lender on the applicable
Borrowing Date.
2.4 Continuation and Conversion Procedure.
(a) Base Rate Loans shall continue as Base Rate Loans unless and
until converted into LIBOR Rate Loans. The Company may elect from time
to time, subject to the terms and conditions of this Agreement, to
convert all or any part of the outstanding Base Rate Loans into LIBOR
Rate Loans.
(b) At the end of the applicable Interest Period for LIBOR Rate
Loans, such LIBOR Rate Loans shall be automatically converted into
Base Rate Loans unless the Company shall have given the Agent notice
in accordance with section 2.4(c) requesting that, at the end of such
Interest Period, such LIBOR Rate Loans continue as LIBOR Rate Loans.
(c) The Company shall deliver a Conversion/ Continuation Notice
to the Agent for each conversion of Base Rate Loans or continuation of
LIBOR Rate Loans. The Conversion/Continuation Notice must be
15
received by the Agent not later than 11 a.m., Milwaukee time, at least
three Business Days prior to the date of the requested conversion or
continuation and must specify (i) the requested date (which shall be a
Business Day) of such conversion or continuation, (ii) the amount of
Loans to be converted or continued and (iii) the duration of the
Interest Periods applicable thereto.
(d) The Agent will promptly notify each Lender of its receipt of
a Conversion/Continuation Notice or, if no notice is timely provided
by the Company, the Agent will promptly notify each Lender of the
details of any automatic conversion. All conversions and continuations
shall be made ratably according to the respective outstanding
principal amounts of the Loans with respect to which the notice was
given.
(e) Notwithstanding anything to the contrary contained in this
section, Loans may not be converted into or continued as LIBOR Rate
Loans when any Default or Event of Default has occurred and is
continuing.
2.5 Commitment Fee. As consideration for the Lenders' Revolving Loan
Commitments, the Company will pay to the Agent, for the account of the
Lenders, on the last Business Day of each quarter commencing June 30, 2000
and on the Revolving Note Maturity Date, a commitment fee equal to .15% (15
basis points) per annum of the daily average unused amount of the Revolving
Loan Commitment during the preceding quarter or other applicable period;
provided that for purposes of computing the commitment fee due on June 30,
2000, the applicable period shall be the Effective Date through June 30,
2000. Commitment fees shall be calculated for the actual number of days
elapsed on the basis of a 360-day year.
2.6 Reduction or Termination of Revolving Loan Commitment. The
Company may, upon seven Business Days' prior written notice to the Agent,
permanently reduce the amount of the total Revolving Loan Commitment;
provided that (i) no such reduction shall reduce the amount of the total
Revolving Loan Commitment to an amount less than the sum of the aggregate
unpaid principal balances of the Revolving Notes on the date of such
reduction and (ii) upon any termination of the Revolving Loan Commitments
the Company shall pay to the Agent, for the account of the Lenders, the
outstanding principal balance of the Revolving Notes, all accrued interest
on the Revolving Notes and all fees, expenses and other amounts payable
under this Agreement relating to the Revolving Loans as of the termination
date. Each reduction in the total Revolving Loan Commitment shall be in a
minimum amount of $1,000,000. Each reduction in the total Revolving Loan
Commitment shall ratably reduce each Lender's Revolving Loan Commitment.
16
2.7 Term Loans. On the Effective Date, each Lender will make a Term
Loan to the Company, subject to the terms and conditions hereof, in an
amount equal to such Lender's Percentage of the amount of the Term Loan
Amount. The Term Loan made by a Lender shall be evidenced by a Term Note
payable to the order of such Lender. The Company shall repay the
outstanding principal balance of the Term Notes in 11 equal quarterly
payments of $2,000,000 each on the last Business Day of each quarter,
beginning on June 30, 2000 plus a final payment of principal and accrued
and unpaid interest due on the Term Note Maturity Date. The Company shall
also pay interest on the unpaid balance of the Term Notes as set forth in
section 2.8.
2.8 Interest Rates.
(a) The unpaid principal balance of Base Rate Loans outstanding
from time to time shall bear interest prior to, in the case of
Revolving Loans, the Revolving Note Maturity Date and in the case of
Term Loans, the Term Note Maturity Date, at an annual rate equal to
the Base Rate plus the Applicable Margin for Base Rate Loans, and such
rate shall change on each day on which the Base Rate changes. Accrued
interest shall be due on the first Business Day of each month,
commencing April 3, 2000, and on the Revolving Note Maturity Date.
(b) The unpaid principal balance of each LIBOR Rate Loan shall
bear interest during the applicable Interest Period at the
corresponding Adjusted LIBOR Rate plus the Applicable Margin for LIBOR
Rate Loans. Accrued interest for each LIBOR Rate Loan shall be due on
the last day of the applicable Interest Period, and in the case of
Revolving Loans, on the Revolving Note Maturity Date and in the case
of Term Loans, on the Term Note Maturity Date.
(c) The unpaid principal balance of each Quoted Rate Loan
outstanding from time to time under the Revolving Notes shall bear
interest prior to the Revolving Note Maturity Date at an annual rate
equal to the Quoted Rate. Accrued interest for each Quoted Rate Loan
shall be due on the first Business Day of each month, commencing on
the first of such dates to occur after the Borrowing Date for such
Quoted Rate Loan.
(d) Notwithstanding the provisions of sections 2.8(a), 2.8(b),
and 2.8(c) above, upon the occurrence and during the continuance of an
Event of Default, the unpaid principal balance of each Note shall,
upon notice from the Agent to the Company (which notice the Agent may
send in its discretion and shall send at the direction of the Majority
Lenders), bear
17
interest at an annual rate equal to the Base Rate plus one percentage
point (the "Default Rate"), payable upon demand. On and after the
Revolving Note Maturity Date, the unpaid principal balance of the
Revolving Notes and all accrued interest thereon shall bear interest
at the Default Rate and shall be payable upon demand. On and after the
Term Note Maturity Date, the unpaid principal balance of the Term
Notes and all accrued interest thereon shall bear interest at the
Default Rate and shall be payable upon demand.
(e) Interest shall be calculated for the actual number of days
elapsed on the basis of a 360-day year.
2.9 Payments. All payments of principal and interest on the Notes and
of all fees due hereunder shall be made at the office of the Agent, for the
account of the Lenders, in immediately available funds not later than 12
noon, Milwaukee, Wisconsin time, on the date due; funds received after that
time shall be deemed to have been received on the next Business Day.
Whenever any payment to be made shall otherwise be due on a day which is
not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in computing
interest and fees, if any, in connection with such payment. The Agent may
charge any account of the Company at the Agent or at any Lender for any
payment due under the Notes, or any fee or expense payable hereunder, on or
after the date due. Except as otherwise provided in section 2.13, the Agent
shall forward to each Lender, promptly after receipt (and in any event no
later than 2 p.m. on the following Business Day), such Lender's Percentage
of such payments received by the Agent.
2.10 Prepayments.
(a) Mandatory. The Company shall make a mandatory prepayment of
the Revolving Notes if and to the extent that the sum of the aggregate
outstanding principal balances of the Revolving Notes exceeds the
Revolving Loan Commitment.
(b) Optional. The Company may at any time repay, without premium
or penalty, Base Rate Loans in a minimum amount of $ 100,000 (or, if
less, all outstanding Base Rate Loans). The Company may at any time
repay, without premium or penalty, Quoted Rate Loans. The Company may
prepay LIBOR Rate Loans (in a minimum amount of $1,000,000 and in
integral multiples of $100,000 above such minimum) at any time;
provided, that, in the event of a prepayment of a LIBOR Rate Loan on
any day other than the last day of the applicable Interest Period, the
Company shall also pay to the Agent for the
18
account of the Lenders on the prepayment date the amounts referred to
in section 2.11(c).
The Company will give the Agent notice of any optional prepayment of the
Notes not later than 12 noon, Milwaukee, Wisconsin time, on the Business Day
prior to the prepayment date, specifying the prepayment date (which must be a
Business Day), the amount to be prepaid and whether the prepayment is to be
applied to the Revolving Notes or to the Term Notes. The amount of such
prepayment and any amounts related thereto shall be due and payable on the
specified prepayment date.
All optional prepayments of the Term Notes shall be applied on a pro rata
basis to the scheduled principal installments of the Term Notes in the inverse
order of maturity.
2.11 Additional LIBOR Rate Loan Provisions
(a) If any Lender determines that the making or maintaining of a
LIBOR Rate Loan would violate any applicable law, rule regulation or
directive, whether or not having the force of law, then the obligation
of the Lenders to make or continue LIBOR Rate Loans, or to convert
Base Rate Loans into LIBOR Rate Loans, shall be suspended until the
Agent notifies the Company that the circumstances causing such
suspension no longer exist. During any such period, all LIBOR Rate
Loans shall automatically convert into Base Rate Loans at the end of
the applicable Interest Period or sooner if required by law.
(b) If the Agent is unable to determine the LIBOR Rate in respect
of a requested Interest Period or the Majority Lenders are unable to
obtain deposits of United States dollars in the London interbank
market in the applicable amounts and for the requested Interest
Period, then, upon notice from the Agent to the Company, the
obligation of the Lenders to make or continue LIBOR Rate Loans, or to
convert Base Rate Loans into LIBOR Rate Loans, shall be suspended
until the Agent notifies the Company that the circumstances causing
such suspension no longer exist.
(c) If any Lender shall incur any loss or expense (including any
loss or expense incurred by reason of a liquidation or redeployment of
deposits or other funds acquired by such Lender to make, continue or
maintain any portion of a LIBOR Rate Loan, or to convert any portion
of a Base Rate Loan into a LIBOR Rate Loan) as a result of: (i) any
conversion or repayment or prepayment of the principal amount of LIBOR
Rate Loan on a date other than the last day of the Interest Period
applicable thereto (whether as a result of
19
acceleration, prepayment or otherwise); (ii) any Revolving Loan not
being made as a LIBOR Rate Loan in accordance with the Notice of
Borrowing therefor; or (iii) any Loan not being continued as, or
converted into, a LIBOR Rate Loan in accordance with the Continuation/
Conversion Notice therefore, then, upon written notice from such
Lender to the Company, the Company shall, within ten days of its
receipt thereof, pay to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for
such loss or expense. Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on the Company.
2.12 Setoff. Each Lender shall, upon the occurrence and during the
continuance of an Event of Default, have the right to apply to the payment
of any Note held by such Lender (whether or not then due) any and all
balances, credits, deposits, accounts or monies of the Company then or
thereafter maintained with such Lender. Each Lender agrees to promptly
notify the Company and the Agent after any such setoff and application made
by such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such setoff and application.
2.13 Pro Rata Treatment; Sharing of Payments.
(a) Except as otherwise provided in this Agreement, all payments
of principal, interest and fees made by the Company shall be
distributed pro rata to the Lenders according to their respective
Percentages. If any Lender shall obtain any payment or other recovery
(whether voluntary, involuntary, by application of setoff or
otherwise) in excess of its pro rata share of payments then or
therewith obtained by all Lenders, such Lender shall immediately
purchase, without recourse and for cash, from the other Lenders, such
participations in the Notes of such other Lenders so that each Lender
shall thereafter have a percentage interest in all of such obligations
equal to such Lender's Percentage; provided, however, that if any
payment so received shall be recovered in whole or in part from such
purchasing Lender, the purchase shall be rescinded and the purchase
price restored to the extent of any such recovery, but without
interest. The Company agrees that any Lender so purchasing a
participation from another Lender pursuant to this section may, to the
fullest extent permitted by law, exercise all of its rights of payment
(including its right of setoff) with respect to such participation as
if such Lender were the direct creditor of the Company in the amount
of such participation.
(b) Notwithstanding anything to the contrary contained in this
Credit Agreement, any Lender that fails to make available to the Agent
its pro rata share of any Loan as, when and to the full extent
required by the
20
provisions of this Credit Agreement, shall be deemed delinquent (a
"Delinquent Lender") until such time as such delinquency is satisfied.
A Delinquent Lender shall be deemed to have assigned any and all
payments due to it from the Company to the Agent and the nondelinquent
Lenders for application to, and reduction of, their respective pro
rata shares of all outstanding Loans. The Delinquent Lender hereby
authorizes the Agent to (i) retain such payments to the extent the
Agent funded such delinquency or (ii) distribute such payments to the
nondelinquent Lenders in proportion to their respective pro rata
shares of all outstanding Loans to the extent the nondelinquent
Lenders funded such delinquency. A Delinquent Lender shall be deemed
to have satisfied in full a delinquency when and if, as a result of
the application of the assigned payments to the Agent and/or the
nondelinquent Lenders, all advances funded by the Agent have been
repaid in full and the Lenders' respective pro rata shares of all
outstanding Loans have returned to their respective Percentages.
2.14 Capital Adequacy. As used in this section, the term "Regulatory
Change" means any change enacted or issued after the date of this Agreement
of any (or the adoption after the date of this Agreement of any new)
federal or state law, regulation, interpretation, direction, policy or
guideline, or any court decision, which affects (or, in the case of a court
decision would, if the decision were applicable to any Lender, affect) the
treatment of any Loan or any commitment of any Lender hereunder as an asset
or other item included for the purpose of calculating the appropriate
amount of capital to be maintained by such Lender or any corporation
controlling such Lender. If such Regulatory Change has the effect of
reducing the rate of return on such Lender's or such corporation's capital
as a consequence of the Loans or commitments of such Lender hereunder to a
level below that which such Lender or such corporation could have achieved
but for such Regulatory Change (taking into account such Lender's or such
corporation's policies with respect to capital adequacy) by an amount
deemed in good faith by such Lender to be material, then from time to time
following notice by such Lender to the Company of such Regulatory Change,
within ten days after demand from such Lender, the Company shall pay to
such Lender such additional amount or amounts as will compensate such
Lender or such corporation, as the case may be, for such reduction.
2.15 Yield Protection. If any law or any governmental rule,
regulation, policy, guideline or directive (whether or not having the force
of law), or any interpretation thereof, or the compliance of any Lender
therewith,
(a) subjects any Lender to any tax, duty, charge or withholding
on or from payments due from the Company (excluding federal taxation
of the overall net income of any Lender and any such tax, duty, charge
or
21
withholding in effect as of the date of this Agreement), or changes
the basis of taxation of payments to any Lender in respect of its
Loans or other amounts due it hereunder (excluding federal taxation of
the overall net income of any Lender);
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any lender (other than reserves and assessments taken
into account in determining the interest rate applicable to LIBOR Rate
Loans) with respect to its Loans; or
(c) imposes any other condition the result of which is to
increase the cost to any Lender of making, funding or maintaining the
Loans or reduces any amount received by any Lender in connection with
the Loans or requires any Lender to make any payment calculated by
reference to the amount of Loans held or interest received by it, by
an amount deemed material by such Lender;
then, within ten days of demand by such Lender, the Company shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable thereto.
2.16 Taxes.
(a) Any and all payments by the Company hereunder or under the
Notes shall be made, in accordance with sections 2.9 and 2.10 free and
clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding in the case of each Lender
and the Agent, taxes imposed on or measured by net income or overall
gross receipts, and capital and franchise taxes imposed on it (all
such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as
"Taxes"). Subject to the provisions of subsection 2.16(h) below, if
the Company shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note to any Lender
or the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this section
2.16) such Lender or the Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been
made, (ii) the Company shall make such deductions and (iii) the
Company shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
22
(b) In addition, the Company agrees to pay any present and future
stamp and documentary taxes and any other excise and property taxes,
charges and similar levies which arise from any payment made hereunder
or under the Notes or the other Loan Documents or from the execution,
delivery or registration of, or otherwise with respect to, this
Agreement or the Notes or the other Loan Documents (the foregoing are
collectively referred to herein as "Other Taxes").
(c) Except to the extent the Company makes payments pursuant to
subsections (a) or (b) above, and subject to the provisions of
subsection (h) below, the Company will indemnify each Lender and the
Agent against, and reimburse each on demand for, the full amount of
Taxes and Other Taxes (including, without limitation, any Taxes and
Other Taxes imposed by any jurisdiction on amounts payable under this
section 2.16) incurred or paid by such Lender or the Agent (as the
case may be) or any of their respective affiliates and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Each Lender agrees, within a reasonable
time after receiving a written request from the Company, to provide
the Company and the Agent with such certificates as are reasonably
required, and take such other actions as are reasonably necessary, to
claim such exemptions as such Lender may be entitled to claim in
respect of all or a portion of any Taxes or Other Taxes which are
otherwise required to be paid or deducted or withheld pursuant to this
section 2.16 in respect of any payments under this Agreement or under
the Notes.
(d) Within 90 days after the close of each fiscal year of the
Company, the Company will furnish to the Agent, at its address
referred to in section 11.4, the original or a certified copy of a
receipt evidencing payment of any Taxes or Other Taxes during such
fiscal year.
(e) Each Lender that is not created or organized under the laws
of the United States or a political subdivision thereof shall deliver
to the Company and the Agent on the date hereof (i) [a] two duly
completed copies of IRS Form 1001 (or any successor or substitute form
or forms) if such Lender claims eligibility to receive payments
hereunder and under the Notes or other documents without deduction or
withholding of United States federal income tax under the provisions
of an applicable tax treaty concluded by the United States or [b] two
duly completed copies of IRS Form 4224 (or any successor or substitute
form or forms) if the Lender claims such eligibility under sections
1441(c)(1) and 1442(a) of the Code. Each such Lender shall amend or
23
deliver such additional IRS Forms as required by law and to the extent
legally entitled to do so.
(f) Any Lender claiming any additional amounts payable pursuant
to this section 2.16 shall use its best efforts (consistent with its
internal policy and legal and regulatory restrictions) to take any
actions permissible if the taking of such action would avoid the need
for, or reduce the amount of, any such additional amounts which may
thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender including changing
the jurisdiction of its lending office. If such additional amounts
cannot be eliminated by such actions, the Company shall have the right
to replace the affected Lender hereunder with a Lender not so affected
which is reasonably acceptable to the Agent and the remaining Majority
Lenders upon payment to such affected Lender of outstanding principal,
accrued interest and fees and all other amounts due pursuant to this
Agreement, including any amounts payable hereunder and under sections
2.11, 2.14 and 2.15. No replacement of a Lender shall be made pursuant
hereto if, after giving affect thereto, any amount shall be owing the
replaced Lender hereunder.
(g) Without prejudice to the survival of any other agreement of
the Company under this Agreement, the agreements and obligations of
the Company, the Lenders or the Agent contained in this section 2.16
shall survive the payment in full of principal and interest under this
Agreement and under the Notes.
(h) Notwithstanding the provisions of section 2.16(a) and 2.16(c)
above, the Company shall not be required to pay any additional amounts
thereunder to a Lender if (i) the obligation to pay such additional
amounts would not have arisen but for a failure of the Lender to
comply with requirements described in section 2.16(e) and an exemption
would have been available to such Lender or (ii) the Lender shall not
have furnished the Company with such forms or shall not have taken
such other action as reasonably may be available to it under
applicable tax laws and any applicable tax treaty to obtain an
exemption from, or reduction (to the lowest applicable rate) of
withholding of such United States federal income tax and an exemption
would have been available to such Lender; provided, however, that the
Company's obligation to pay such additional amounts shall be
reinstated upon receipt of such forms or evidence that action with
respect to obtaining such exemption or reduction has been taken.
2.17 Other Fees. [reserved]
24
2.18 Use of Proceeds. The Company shall use Loan proceeds solely for
the purpose of refinancing existing Indebtedness, corporate acquisitions,
working capital needs and for other general corporate and lawful purposes.
3. Representations and Warranties. In order to induce the Lenders to make
the Loans, the Company represents and warrants to the Lenders that:
3.1 Organization; Subsidiaries; Corporate Power. The Company is a
corporation validly existing under the laws of the State of Wisconsin and
(a) the Company has filed with the Wisconsin Department of Financial
Institutions the required annual report for its most recently completed
report year, (b) the Company is not the subject of a proceeding under
Wisconsin Statutes section 180.1421 to cause its dissolution, (c) no filing
has been made with the Wisconsin Department of Financial Institutions of a
decree of dissolution with respect to the Company and (d) neither the
shareholders nor the Board of Directors of the Company have taken any
action authorizing the liquidation or dissolution of the Company. The
Company is duly qualified as a foreign corporation to do business and is in
good standing in every jurisdiction in which the nature of its business or
the ownership of its properties requires such qualification and in which
the failure to so qualify would materially adversely affect the business
operations or financial condition of the Company. Schedule 3.1 contains the
name, state of incorporation and number of authorized and outstanding
shares of each class of stock of each Subsidiary and the number thereof
owned by the Company. Each Subsidiary is validly existing and in good
standing in the state of its incorporation and each is duly qualified as a
foreign corporation and is in good standing in every jurisdiction in which
the nature of its business or the ownership of its properties requires such
qualification and in which the failure to so qualify would materially
adversely affect the business operations or financial condition of such
Subsidiary. The Company and each Subsidiary has the corporate power to own
its properties and carry on its business as currently being conducted.
3.2 Authorization and Binding Effect. The execution and delivery by
the Company of the Loan Documents to which it is a party, and the
performance by the Company of its obligations thereunder, are within its
corporate power, have been duly authorized by proper corporate action on
the part of the Company, are not in violation of any existing law, rule or
regulation of any governmental agency or authority, any order or decision
of any court, the Articles of Incorporation or By-Laws of the Company or
the terms of any agreement, restriction or undertaking to which the Company
is a party or by which it is bound, and do not require the approval or
consent of the shareholders of the Company,
25
any governmental body, agency or authority or any other person or entity.
The Loan Documents to which the Company is a party, when executed and
delivered, will constitute the valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by
bankruptcy, insolvency or similar laws of general application affecting the
enforcement of creditors' rights and except to the extent that general
principles of equity might affect the specific enforcement of such Loan
Documents.
3.3 Financial Statements. The Company has furnished to the Lenders
(a) the consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 1999, and related statements of income,
retained earnings and cash flows for the year ended on that date, certified
by Xxxxxx Xxxxxxxx LLP, and (b) the consolidated balance sheet of the
Company and its Consolidated Subsidiaries dated December 31, 1999 and
related statements of income and retained earnings for the period ended on
such date, prepared by the Company. Such financial statements were prepared
in accordance with GAAP consistently applied throughout the periods
involved, are correct and complete and fairly present the consolidated
financial condition of the Company and such Subsidiaries as of such dates
and the results of their operations for the periods ended on such dates,
subject, in the case of the interim statements, to normal year-end
adjustments. There has been no material adverse change in the condition or
prospects of the Company or its Consolidated Subsidiaries, financial or
otherwise, since the date of the most recent financial statement furnished
to the Lenders.
3.4 Litigation. Except for the matters described on Schedule 3.4,
there is no litigation or administrative proceeding pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any Subsidiary or the properties of the Company or any Subsidiary which if
determined adversely would have a material adverse effect upon the
business, financial condition or properties of the Company or such
Subsidiary.
3.5 Restricted Payments. The Company has not, since the date of the
most recent financial statements referred to in section 3.3, made any
Restricted Payments except for Restricted Payments permitted under section
6.1.
3.6 Indebtedness; No Default. Neither the Company nor any Subsidiary
has any outstanding Indebtedness, Guaranty Obligations or Lease
Obligations, except those permitted under sections 6.2, 6.3 and 6.4. There
exists no default nor has any act or omission occurred which, with the
giving of notice or the passage of time, would constitute a default under
the provisions of (a) any instrument evidencing such Indebtedness, Guaranty
Obligations or Lease Obligations or any agreement relating thereto or (b)
any other agreement or
26
instrument to which the Company or any Subsidiary is a party and which is
material to the financial condition, business operations or prospects of
the Company or such Subsidiary.
3.7 Ownership of Properties; Liens and Encumbrances. The Company and
each Subsidiary has good and marketable title to all property, real and
personal, reflected on the most recent financial statement of the Company
furnished to the Lenders, and all property purported to have been acquired
since the date of such financial statement, except property sold or
otherwise disposed of in the ordinary course of business subsequent to such
date; and all such property is free of any lien, security interest,
mortgage, encumbrance or charge of any kind or any agreement not to grant a
security interest, mortgage or lien, except Permitted Liens. All owned and
leased buildings and equipment of the Company and each Subsidiary are in
good condition, repair and working order (reasonable wear and tear
excepted) and, to the Company's knowledge, conform in all material respects
to all applicable laws, ordinances and regulations.
3.8 Tax Returns Filed. The Company and each Subsidiary has filed when
due all federal and state income and other tax returns which are required
to be filed. The Company has paid or made provision for the payment of all
taxes shown on such returns, and on all assessments received by it to the
extent that such taxes or assessments have become due, except any such
taxes or assessments which are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP have
been established. The Company has no knowledge of any liabilities which may
be asserted against it or any Subsidiary upon audit of its federal or state
tax returns.
3.9 Margin Stock. The Company will not use, directly or indirectly,
any part of the proceeds of any Note for the purpose of purchasing or
carrying, or to extend credit to others for the purpose of purchasing or
carrying, any margin stock within the meaning of Regulation U of the Board
of Governors of the Federal Reserve System, or any amendments thereto.
Neither the Company nor any Subsidiary is engaged principally, or as one of
its important activities, in the business of extending credit for the
purpose of purchasing or carrying margin stock.
3.10 Investment Company. The Company is not an "investment company" or
a company controlled by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
3.11 ERISA Liabilities. The Company has no knowledge of the occurrence
of any event with respect to any Plan which could result in a
27
liability of the Company or any Subsidiary or any member of the Controlled
Group to any Plan, the Internal Revenue Service or to the Pension Benefit
Guaranty Corporation other than the payment of contributions in the normal
course or premiums (but not a late payment charge) pursuant to section 4007
of ERISA. With respect to any Plan there is no (a) accumulated funding
deficiency within the meaning of section 412(a) of the Code; (b)
nondeductible contribution to any Plan within the meaning of section 4972
of the Code; (c) excess contribution within the meaning of section 4979(c)
of the Code which would result in tax under section 4979(a) of the Code;
(d) prohibited transaction within the meaning of ERISA section 406 which is
not exempt under ERISA section 408; (e) failure to make required
contributions to any Multiemployer Plan; or (f) withdrawal or partial
withdrawal from any Multiemployer Plan within the meaning of ERISA sections
4203 and 4205.
3.12 No Burdensome Agreements. Neither the Company nor any Subsidiary
is a party to or bound by any agreement, instrument or undertaking, or
subject to any other restriction (a) which materially adversely affects, or
is likely in the future to so affect, the property, financial condition or
business operations of the Company or any Subsidiary or (b) under or
pursuant to which the Company or any Subsidiary is or will be required to
grant (or under which any other Person may obtain) a security interest or
lien upon any of its property (other than a Permitted Lien), either upon
demand or upon the fulfillment of a condition, with or without demand.
3.13 Trademarks, Etc. The Company and each Subsidiary possesses
adequate trademarks, trade names, copyrights, patents, permits, service
marks and licenses, or rights thereto, for the present and planned future
conduct of their respective businesses substantially as now conducted,
without any known conflict with the rights of others which would result in
a material adverse effect on the Company or any Subsidiary.
3.14 Dump Sites. With respect to the period during which the Company
or any Subsidiary owned or occupied its real estate, and to the Company's
knowledge after reasonable investigation, with respect to the time before
the Company or any Subsidiary owned or occupied its real estate, no person
or entity has caused or permitted materials to be stored, deposited,
treated, recycled or disposed of on, under or at any real estate owned or
occupied by the Company or any Subsidiary, which materials, if known to be
present, would require cleanup, removal or some other remedial action under
Environmental Laws.
28
3.15 Tanks. There are not now, to the Company's knowledge after
reasonable investigation, tanks or other facilities on, under, or at any
real estate owned or occupied by the Company or any Subsidiary which
contain materials which, if known to be present in soils or ground water,
would require cleanup, removal or some other remedial action under
Environmental Laws.
3.16 Other Environmental Conditions. There are no conditions existing
which would subject the Company or any Subsidiary to damages, penalties,
injunctive relief or cleanup costs under any Environmental Laws or which
require or are likely to require cleanup, removal, remedial action or other
response pursuant to Environmental Laws by the Company or any Subsidiary.
3.17 Changes in Laws. To the Company's knowledge after reasonable
investigation, there are no proposed or pending changes in Environmental
Laws that would adversely affect the Company or any Subsidiary.
3.18 Environmental Judgments, Decrees and Orders. Neither the Company
nor any Subsidiary is subject to any judgment, decree, order or citation
related to or arising out of Environmental Laws. Except as set forth in
Schedule 3.18, neither the Company nor any Subsidiary has been named as a
potentially responsible party by a governmental body or agency in a matter
arising under any Environmental Law.
3.19 Environmental Permits and Licenses. The Company and each
Subsidiary has all permits, licenses and approvals required under
Environmental Laws.
3.20 Year 2000. Except as set forth on Schedule 3.20 attached hereto,
the information technology systems used by the Company and its Subsidiaries
in their business operations accurately process date/time data (including
without limitation calculating, comparing and sequencing) from, into and
between the twentieth and twenty-first centuries, the year 1999 and 2000
and leap year calculations.
3.21 Accuracy of Information. All information furnished by the Company
to the Lenders is true, correct and complete in all material respects as of
the date furnished and does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make such information
not misleading.
29
4. Conditions for Borrowing. The Lenders' obligations to make Loans is
subject to the satisfaction, on or before the following Borrowing Dates, of the
following conditions:
4.1 On or Before the Effective Date. The Agent shall have received
the following, all in form, detail and content satisfactory to the Lenders:
(a) Certified Articles of Incorporation. A copy of the Articles
of Incorporation of the Company, certified as of a recent date by the
Wisconsin Department of Financial Institutions.
(b) Certificates of Status and Good Standing. Certificates of
status and good standing with respect to the Company, issued as of a
recent date by the Secretary of State (or comparable governmental
authority) of each state in which the Company is incorporated or is
qualified to transact business as a foreign corporation.
(c) Closing Certificate. Copies, certified by the Secretary of
the Company to be true and correct and in full force and effect on the
Effective Date, of (i) the By-Laws of the Company; (ii) resolutions of
the Board of Directors of the Company authorizing the execution and
delivery of the Loan Documents to which the Company is a party; and
(iii) a statement containing the names and titles of the officer or
officers of the Company authorized to sign such Loan Documents,
together with true signatures of such officers.
(d) Notes. The Notes, duly executed by the Company.
(e) Personal Property Searches. Searches of the appropriate
public offices demonstrating that no security interest, tax lien,
judgment lien or other charge or encumbrance is of record affecting
the Company or its properties except those which are acceptable to the
Agent.
(f) Bring-Down Certificate. A certificate dated the Effective
Date and signed by the President or any Vice President of the Company,
certifying that (i) the representations and warranties of the Company
contained in section 3 hereof are true and correct as of the Effective
Date and (ii) no Default or Event of Default exists as of the
Effective Date.
(g) Opinion of Counsel. An opinion from Xxxxx X. Xxxxxx, Esq.,
general counsel of the Company, in the form of Exhibit E attached
hereto.
30
(h) Proceedings Satisfactory. Such other documents as the Lenders
may reasonably request; and all proceedings taken in connection with
the transactions contemplated by this Agreement, and all instruments,
authorizations and other documents applicable thereto, shall be
satisfactory to the Lenders.
4.2 On or Before Each Subsequent Borrowing Date:
(a) Borrowing Procedure. The Company shall have complied with the
borrowing procedure specified in section 2.3.
(b) Representations and Warranties True and Correct. The
representations and warranties contained in section 3 hereof and in
the other Loan Documents shall be true and correct on and as of the
relevant Borrowing Date except (i) that the representations and
warranties contained in section 3.3 shall apply to the most recent
financial statements delivered pursuant to sections 5.1 and 5.2 and
(ii) for changes contemplated or permitted by this Agreement.
(c) No Default. There shall exist on that Borrowing Date no
Default or Event of Default.
(d) Proceedings and Documentation. The Lenders shall have
received such instruments and other documents as they may reasonably
request in connection with the making of such Loans, and all such
instruments and documents shall be in form and content satisfactory to
the Lenders.
5. Affirmative Covenants. The Company covenants that it will, at all times
on and after the Effective Date until the Lenders' Revolving Loan Commitment has
terminated or expired, and the Notes, and all fees and expenses payable
hereunder, have been paid in full:
5.1 Annual Financial Statement. Furnish to the Agent within 90 days
after the end of each fiscal year of the Company a copy for each Lender of
a balance sheet of the Company and its Consolidated Subsidiaries as of the
close of such fiscal year and related statements of income, retained
earnings and cash flows for such year, setting forth in each case in
comparative form corresponding figures from the preceding annual audit, all
in reasonable detail and satisfactory
31
in scope to the Lenders, prepared in accordance with GAAP applied on a
consistent basis, accompanied by the unqualified opinion of a firm of
independent certified public accountants selected by the Company and
satisfactory to the Lenders. Each annual financial statement shall be
accompanied by a written statement from the accounting firm which prepared
the same containing a computation showing whether or not the Company is in
compliance with the financial covenants contained in section 6. All such
financial statements, and the financial statements referred to in section
5.2, shall be furnished in consolidated form for the Company and all
Consolidated Subsidiaries which it may at the time have.
5.2 Interim Financial Statements. Furnish to the Agent within 45 days
after the end of each fiscal quarter of the Company a copy for each Lender
of the consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such fiscal quarter, together with the
related statements of income and retained earnings for the period from the
beginning of the fiscal year to the end of such period, prepared in the
manner set forth in section 5.1 for the annual statements, certified,
subject to audit and normal year-end adjustments, to be accurate and
complete by an authorized financial representative of the Company and
accompanied by the certificate of such representative (i) containing
computations showing whether or not the Company is in compliance with the
financial covenants set forth in section 6 and (ii) to the effect that
there exists no Default or Event of Default or, if any Default or Event of
Default exists, specifying the nature thereof, the period of existence
thereof and what action the Company proposes to take with respect thereto.
5.3 Management Letters. Furnish to the Agent, promptly upon receipt,
copies for each Lender of all management letters and detailed audit reports
submitted to the Company by its independent certified public accountants.
5.4 Other Financial Information. Furnish to the Agent, as soon as
available, copies for each Lender of all reports submitted to the
shareholders of the Company in their capacity as shareholders, and such
other financial information as any Lender may from time to time reasonably
request.
5.5 Books and Records; Inspection. Keep and cause each Subsidiary to
keep proper, complete and accurate books of record and account and permit
any representatives of the Agent or any Lender to visit and inspect any of
the properties and examine and copy any of the books and records of the
Company or any Subsidiary at any reasonable time and as often as may
reasonably be desired.
5.6 Insurance. Maintain and cause each Subsidiary to maintain
insurance coverage as may be required by law but in any event not less than
insurance coverage, in the forms, amounts and with companies, which would
32
be carried by prudent management in connection with similar properties and
businesses. Without limiting the foregoing, the Company will and will cause
each Subsidiary to (a) keep all its physical property insured against fire
and extended coverage risks in amounts and with deductibles at least equal
to those generally maintained by businesses engaged in similar activities
in similar geographic areas; (b) maintain all such worker's compensation
and similar insurance as may be required by law; and (c) maintain, in
amounts and with deductibles at least equal to those generally maintained
by businesses engaged in similar activities in similar geographic areas,
general public liability insurance against claims for bodily injury, death
or property damage occurring on, in or about the properties of the Company
or such Subsidiary, business interruption insurance and product liability
insurance.
5.7 Condition of Property. Keep and cause each Subsidiary to keep its
properties (whether owned or leased) in good condition, repair and working
order (reasonable wear and tear excepted).
5.8 Payment of Taxes. Pay and discharge, and cause each Subsidiary to
pay and discharge, all lawful taxes, assessments and governmental charges
upon it or against its properties prior to the date on which penalties are
attached thereto, unless and to the extent only that the same shall be
contested in good faith and by appropriate proceedings by the Company or
the appropriate Subsidiary and appropriate reserves with respect thereto
are established and maintained in accordance with GAAP.
5.9 Compliance with Law. Do and, except as permitted under section
6.6, cause each Subsidiary to do all things necessary to (a) maintain its
corporate existence in its state of incorporation and maintain its
qualification as a foreign corporation in any other state where the
ownership of property or the conduct of business make qualification
necessary and where the failure to so qualify would have a material adverse
effect upon its business, operations or financial condition, (b) preserve
and keep in full force and effect its rights and franchises necessary to
continue its business and (c) comply with all applicable laws, regulations
and ordinances, including all applicable Environmental Laws, except those
being contested in good faith and involving no possibility of criminal
liability, if and to the extent that the failure to so comply would have a
material adverse affect upon the Company and its Subsidiaries taken as a
whole.
5.10 ERISA Certificate. Comply and cause each Subsidiary to comply
with all applicable requirements of ERISA for each Plan and furnish to the
Agent, as soon as possible and in any event within 30 days after the
Company shall have obtained knowledge that a Reportable Event has occurred
with respect
33
to any Plan, a certificate of an officer of the Company setting forth the
details as to such Reportable Event and the action which the Company
proposes to take with respect thereto, and a copy of each notice of a
Reportable Event sent to the Pension Benefit Guaranty Corporation by the
Company and, with respect to a Multiemployer Plan, furnish to the Agent as
soon as possible after the Company receives notice or obtains knowledge
that the Company or any member of the Controlled Group may be subject to
withdrawal liability, or required to post a bond to avoid such liability,
to a Multiemployer Plan, a certificate of an officer of the Company setting
forth the details as to such event and the actions which the Company plans
to take with respect thereto.
5.11 Compliance with Other Loan Documents. Timely comply with all of
its obligations under the other Loan Documents.
5.12 Notice of Default or Claimed Default. Furnish to the Agent (a)
immediately upon becoming aware of any Default or Event of Default, a
written notice specifying the nature and period of existence thereof and
what action the Company is taking or proposes to take with respect thereto;
(b) immediately upon becoming aware that the holder of any other
Indebtedness issued or assumed by the Company or any Subsidiary, or the
lessor under any lease as to which the Company or any Subsidiary is the
lessee, has given notice or has taken any action with respect to a claimed
default thereunder, or under any agreement under which any such
Indebtedness was issued or secured, a written notice specifying the notice
given or action taken, the nature of the claimed default and what action
the Company is taking or proposes to take with respect thereto; (c)
immediately upon receipt, copies of any correspondence, notice, pleading,
citation, indictment, complaint, order, decree or other document from any
governmental authority or court asserting or alleging a circumstance or
condition which requires or may require a financial contribution by the
Company or a cleanup, removal, remedial action or other response by or on
the part of the Company or any Subsidiary under Environmental Laws or which
seeks damages or civil, criminal or punitive penalties from the Company or
any Subsidiary for an alleged violation of Environmental Laws which, in any
such case, is likely to have a material adverse effect on the financial
condition or business operations of the Company or any Subsidiary; and (d)
written notice of any condition or event which would make the warranties
contained in section 3 inaccurate, as soon as the Company becomes aware of
such condition or event.
6. Negative Covenants. The Company covenants that, without the prior
written consent of the Majority Lenders, it will not, and will not permit any
Subsidiary to, at any time on or after the Effective Date until the Lenders'
34
Revolving Loan Commitment has terminated or expired, and the Notes, and all fees
and expenses payable hereunder, have been paid in full:
6.1 Restricted Payments. Make any Restricted Payments except that so
long as no Default or Event of Default exists the Company may make
Restricted Payments if, after giving effect thereto, the aggregate amount
of Restricted Payments made during the period after December 31, 1997, to
and including the date of making the Restricted Payment in question, does
not exceed 50% of the Company's Net Earnings for such period computed on a
cumulative basis for said entire period.
6.2 Limitations on Indebtedness. Create, incur, assume or permit to
exist any Indebtedness except (a) Indebtedness owed to the Lenders
hereunder; (b) Indebtedness secured by Permitted Liens; (c) Subordinated
Debt; (d) Indebtedness permitted under section 6.7(e); and (e) Indebtedness
arising in connection with a Permitted Swap Contract.
6.3 Limitations on Guaranty Obligations. Create, incur, assume or
permit to exist any Guaranty Obligations except for (a) the endorsement of
negotiable or nonnegotiable instruments for collection in the ordinary
course of business, and (b) Guaranty Obligations in favor of a Lender; and
(c) Guaranty Obligations described on Schedule 6.3 existing on the date of
this Agreement, provided that the principal amount thereof shall not be
increased.
6.4 Limitations on Lease Obligations. Permit the aggregate Lease
Obligations of the Company and its Subsidiaries to exceed $1,000,000 due in
any fiscal year of the Company.
6.5 Limitations on Liens and Encumbrances. Create, assume or permit
to exist any mortgage, security interest, lien or charge of any kind,
including any restriction against mortgages, security interests, liens or
charges upon any of its other property or assets, whether now owned or
hereafter acquired, except for Permitted Liens.
6.6 Limitations on Mergers, Etc. Merge or consolidate with or into
any other corporation or entity or sell, lease, transfer or otherwise
dispose of in a single transaction or a series of transactions, all or a
substantial part of its assets (other than sales made in the ordinary
course of business), except that any Subsidiary may merge into, or transfer
all or a substantial part of its assets to the Company or to a Subsidiary
wholly owned by the Company.
6.7 Limitations on Acquisitions, Advances and Investments. Acquire
stock issued by a corporation, all or substantially all of the
35
assets of any Person, an ownership interest in any limited liability
company or any partnership or joint venture interest or make any loan,
advance or extension of credit to any Person except (a) the purchase of
United States government bonds and obligations; (b) extensions of credit to
customers in the ordinary course of business of the Company or any
Subsidiary; (c) the purchase of bank certificates of deposit issued by a
bank having a long-term certificate of deposit rating of A or better from
Standard & Poor's Rating Services (or an equivalent rating from another
national rating agency), (d) commercial paper with a maturity not exceeding
90 days; (e) investments of the Company in any Subsidiary in existence on
the Closing Date, and loans and advances to wholly owned Subsidiaries of
the Company and advances by any Subsidiary to the Company or to another
wholly owned Subsidiary; (f) deposits in deposit accounts at banks; (g)
investments in bank repurchase agreements; (h) loans and advances to
employees and agents in the ordinary course of business for travel and
entertainment expenses and similar items; (i) partnership and joint
ventures entered into in the ordinary course of business; (j) nonhostile
acquisitions of the assets or 100% of the stock or other ownership interest
of a Person; and (k) the purchase by the Company of its stock to the extent
permitted under section 6.1.
6.8 Lines of Business. Engage or permit any Subsidiary to engage in
any business other than those in which it is now engaged and any business
directly related thereto if, as a result thereof, the general nature of the
businesses engaged in by the Company and its Subsidiaries on a consolidated
basis would be substantially changed from the general nature of their
businesses as of the Closing Date.
6.9 Sales of Receivables. Discount or sell with recourse, or sell for
less than the face amount thereof, any of its notes or accounts receivable.
6.10 Sales of Subsidiaries. Sell or otherwise dispose of any stock (or
other ownership interest), or securities convertible into stock (or other
ownership interest), of any Subsidiary except to the Company or to a
Subsidiary wholly owned by the Company.
6.11 Sale and Leaseback. Sell or transfer any fixed assets and then or
thereafter rent or lease as lessee any such assets.
6.12 Indebtedness to Capitalization Ratio. Permit the Indebtedness to
Capitalization Ratio to exceed 0.55 to 1.0 at any time.
36
6.13 Interest Coverage Ratio. Permit the Interest Coverage Ratio to be
less than 3.00 to 1.00 at any time.
6.14 Indebtedness to EBITDA Ratio. Permit the Indebtedness to EBITDA
Ratio to exceed 2.00 to 1.0 at any time.
6.15 Transactions with Affiliates. Enter into or be a party to any
transaction with any Affiliate except as otherwise provided herein or in
the ordinary course of business and upon fair and reasonable terms which
are no less favorable than a comparable arm's length transaction with an
entity which is not an Affiliate.
7. Events of Default; Remedies.
7.1 Events of Default. The occurrence of any of the following shall
constitute an Event of Default:
(a) Failure to Pay Note. The Company fails to pay (a) principal
on any Note when due, whether at a stated payment date, or a date
fixed by the Company for prepayment or by acceleration, or (b)
interest on any Note, or any fee or other amount payable hereunder,
when due and such default in payment of interest, fees or other
amounts continues uncured for a period of five days; or
(b) Falsity of Representations and Warranties. Any representation
or warranty made in any Loan Document or in any writing furnished in
connection with or pursuant to this Agreement or any other Loan
Document is false in any material respect on the date as of which made
or as of which the same is to be effective; or
(c) Breach of Covenants. The Company fails to comply with any
term, covenant or agreement contained in section 5 or 6 hereof; or
(d) Breach of Other Provisions. The Company fails to comply with
any other agreement contained herein and such default continues for a
period of 30 days after written notice to the Company from the Agent;
or
(e) Default Under Other Agreements. The Company or any Subsidiary
fails to pay when due any other Indebtedness issued or assumed by the
Company or such Subsidiary or fails to comply with the terms of any
agreement under which such Indebtedness was created and such default
continues beyond the period of grace, if any, therein provided; or
37
(f) Entry of Final Judgments. A final judgment is entered against
the Company or any Subsidiary which, together with all unsatisfied
final judgments entered against the Company and all Subsidiaries,
exceeds the sum of $250,000, and such judgment shall remain
unsatisfied or unstayed for a period of 60 days after the entry
thereof; or
(g) ERISA Liability. Any event in relation to any Plan which the
Lenders determine in good faith could result in any of the occurrences
set forth in section 3.11 above; or
(h) Default Under Other Loan Documents. An "Event of Default" (as
defined therein) shall occur under any other Loan Document or the
party to any other Loan Document fails to timely comply with any term,
covenant or agreement contained therein; or
(i) Change In Control. Any Change in Control shall occur; or
(j) Insolvency, Failure to Pay Debts or Appointment of Receiver,
Etc. The Company or any Subsidiary becomes insolvent or the subject of
state insolvency proceedings, fails generally to pay its debts as they
become due or makes an assignment for the benefit of creditors; or a
receiver, trustee, custodian or other similar official is appointed
for, or takes possession of any substantial part of the property of,
the Company or any Subsidiary; or
(k) Subject of United States Bankruptcy Proceedings. The taking
of corporate action by the Company or any Subsidiary to authorize such
organization to become the subject of proceedings under the United
States Bankruptcy Code; or the execution by the Company or any
Subsidiary of a petition to become a debtor under the United States
Bankruptcy Code; or the filing of an involuntary petition against the
Company or any Subsidiary under the United States Bankruptcy Code
which remains undismissed for a period of 60 days; or the entry of an
order for relief under the United States Bankruptcy Code against the
Company or any Subsidiary.
7.2 Remedies. Upon the occurrence of any of the events described in
sections 7.1(a) through 7.1(j), inclusive, the Agent shall, at the
direction of the Majority Lenders, at the same or different times, take any
of the following actions:
38
(a) declare the Lenders' Revolving Loan Commitments to be
terminated, whereupon the Lenders' Revolving Loan Commitments shall
immediately terminate; or
(b) declare the Loans, and all accrued interest thereon, to be
immediately due and payable, whereupon the Loans, all accrued interest
thereon and all other amounts owing or payable under the Loan
Documents shall be immediately due and payable without presentment,
demand, protest or notice of any kind, all of which are expressly
waived by the Company.
Promptly following the making of such declaration, the Agent shall give
notice thereof to the Company and each Lender but the failure to give such
notice shall not impair any of the effects of such declaration. Upon the
occurrence of any of the events described in section 7.1(k), the Lenders'
Revolving Loan Commitments shall immediately terminate, and the Notes, together
with accrued interest thereon and all other amounts owing or payable under the
Loan Documents shall be immediately due and payable without presentment, demand,
protest or notice of any kind, all of which are expressly waived by the Company.
8. The Agent.
8.1 Appointment and Duties of the Agent. The Lenders hereby appoint
Firstar, subject to the terms and conditions of this section 8, as the
Agent for the Lenders under and for purposes of this Agreement and the
other Loan Documents. Each of the Lenders hereby irrevocably, authorizes,
and directs the Agent to take such action on its behalf and to exercise
such powers hereunder as are delegated to the Agent herein, together with
such powers as are reasonably incident thereto, in connection with the
administration of and enforcement of any rights or remedies with respect to
this Agreement and the other Loan Documents. The Agent shall use reasonable
diligence to examine the face of each document received by it hereunder to
determine whether such document, on its face, appears to be what it
purports to be. However, the Agent shall not be under any duty to examine
into or pass upon the validity or genuineness of any documents received by
it hereunder and the Agent shall be entitled to assume that any of the same
which appears regular on its face is genuine and valid and what it purports
to be.
8.2 Discretion and Liability of the Agent. Subject to sections 8.3,
8.5 and 9.12 hereof, the Agent shall be entitled to use its discretion with
respect to exercising or refraining from exercising any rights which may be
vested in it by, or with respect to, taking or refraining from taking any
action or actions which it may be able to take under or in respect of this
Agreement and the other Loan Documents. Neither the Agent nor any of its
directors, officers,
39
employees, agents or representatives shall be liable for any action taken
or not taken under any Loan Document in the absence of gross negligence or
willful misconduct.
8.3 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to a failure by the Company to pay principal, interest
or fees required to be paid to the Agent, unless the Agent has actual
knowledge of such facts or has received notice from a Lender or the
Company in writing that such Lender or the Company considers that a Default
or Event of Default has occurred and is continuing and which specifies the
nature thereof.
If the Agent shall acquire actual knowledge of or receive notice from a
Lender or the Company that a Default or Event of Default has occurred, the Agent
shall promptly notify the Lenders and the Company of such Default or Event of
Default.
8.4 Consultation. The Agent in good faith may consult with legal
counsel or other advisors selected by it and shall be entitled to fully
rely upon any opinion of such counsel or other advisor in connection with
any action taken or not taken by the Agent in accordance with such opinion.
8.5 Communications To and From the Agent. Upon any occasion requiring
or permitting an approval, consent, waiver, election or other action on the
part of the Lenders, unless action by the Agent alone is expressly
permitted hereunder, action shall be taken by the Agent for and on behalf
or for the benefit of the Lenders upon the direction of the Majority
Lenders or, if required under section 9.12, all the Lenders. The Company
may rely upon any communication from the Agent hereunder and need not
inquire into the propriety of or authorization for such communication. Upon
receipt by the Agent from the Company or any Lender of any communication
calling for an action on the part of the Lenders, the Agent will, in turn,
promptly inform the other Lenders in writing of the nature of such
communication. In addition, the Agent shall forward to each Lender,
promptly after receipt, copies of information provided by the Company
pursuant to the requirements of the Loan Documents including, without
limitation, the financial statements referred to in sections 5.1 and 5.2,
and the notices referred to in section 5.12.
8.6 Limitations of Agency. The Agent will act under the Loan
Documents solely as the agent of the Lenders and only to the extent
specifically set forth in the Loan Documents and will, under no
circumstances, be considered to be a fiduciary of any nature whatsoever in
respect of any other
40
Person. The relationship between the Agent and the Lenders is that of agent
and principal only and the Agent shall not be deemed to be a trustee or
fiduciary for any Lender. The Agent may generally engage in any kind of
banking or trust business with the Company as if it were not the Agent.
8.7 No Representation or Warranty. No Lender (including the Agent)
makes to any other Lender any representation or warranty, express or
implied, or assumes any responsibility with respect to the execution,
validity or enforceability of this Agreement or the other Loan Documents.
8.8 Lender Credit Decision. Each Lender acknowledges that it has,
independent of and without reliance upon any other Lender (including the
Agent) or any information provided by any other Lender (including the
Agent) and based upon the financial statements of the Company and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independent of and without reliance upon any
other Lender (including the Agent) and based upon such documents and
information as it shall deem appropriate at that time, continue to make its
own credit decision in taking or not taking action under this Agreement and
the other Loan Documents.
8.9 Indemnity. Each Lender hereby indemnifies (which indemnity shall
survive the termination of this Agreement) the Agent, pro rata according to
such Lender's Percentage, from and against any and all liabilities,
obligations, losses, damages, claims, costs, or expenses of any kind or
nature whatsoever including reasonable attorneys' fees which may at any
time be imposed on, incurred by, or asserted against, the Agent in any way
related to or arising out of this Agreement or the other Loan Documents and
as to which the Agent is not reimbursed by the Company; provided, however,
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, claims, costs or expenses which
are determined by a court of competent jurisdiction in a final proceeding
to have resulted solely from the Agent's gross negligence or willful
misconduct. The Agent shall not be required to take any action hereunder or
under any other Loan Document, or to prosecute or defend any suit in
respect of the transactions contemplated hereby, unless it is indemnified
hereunder to its satisfaction. If any indemnity in favor of the Agent shall
be or become, in the Agent's determination, inadequate, the Agent may call
for additional indemnification from the Lenders and cease to do the acts
indemnified against hereunder until such additional indemnity is given.
8.10 Resignation or Removal of Agent; Successor Agent. The Agent may
resign as such at any time upon at least 30 days' prior notice to the
41
Company and all Lenders. The Agent may be removed at any time by the
Majority Lenders upon at least 30 days' prior notice by the Majority
Lenders to the Company and the Agent, but only for cause consisting of its
gross negligence or willful misconduct or following a declaration of
insolvency by the appropriate regulators. If the Agent at any time shall
resign or be removed, the Majority Lenders may appoint another Lender as a
successor Agent which shall thereupon become the Agent hereunder. If no
successor Agent shall have been so appointed by the Majority Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Agent gives notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint the successor Agent, which shall be one of the
Lenders. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall be entitled to receive from the
retiring Agent such documents of transfer and such assignments as such
successor Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties
and obligations as Agent under this Agreement.
9. Miscellaneous.
9.1 Survival of Representations and Warranties. The Company's
representations and warranties contained in section 3 hereof shall survive
closing and execution and delivery of the Notes.
9.2 Indemnification. The Company agrees to defend, indemnify and hold
harmless the Agent, the Lenders and their respective directors, officers,
employees and agents from and against any and all loss, cost, expense or
liability (including reasonable attorneys' fees) incurred in connection
with any and all claims or proceedings (whether brought by a private party
or governmental agency) as a result of, or arising out of or relating to:
(a) bodily injury, property damage, abatement or remediation,
environmental damage or impairment or any other injury or damage
resulting from or relating to any hazardous or toxic substance or
contaminated material (as determined under Environmental Laws) located
on or migrating into, from or through property previously, now or
hereafter owned or occupied by the Company, which the Agent or any
Lender may incur due to the making of the Loans, or otherwise;
(b) any transaction financed or to be financed, in whole or in
part, directly or indirectly, with the proceeds of any Loan; or
42
(c) the entering into, performance of and exercise of their
rights under this Agreement or any other Loan Document by the Agent,
and the Lenders.
This indemnity will survive the repayment of the Loans.
9.3 Expenses. The Company agrees, whether or not the transaction
hereby contemplated shall be consummated, to pay on demand (a) all
out-of-pocket expenses incurred by the Agent or any Lender in connection
with the negotiation, execution, administration, amendment or enforcement
of this Agreement and the other Loan Documents, including reasonable
counsel fees and expenses (provided that the maximum amount of fees and
expenses incurred by each Lender in connection with the negotiation,
execution, administration and amendment of this Agreement and the other
Loan Documents to be reimbursed by the Company shall not exceed $1,000),
(b) any taxes (including any interest and penalties relating thereto)
payable by any Lender (other than taxes based upon such Lender's net
income) on or with respect to the transactions contemplated by this
Agreement (the Company hereby agreeing to indemnify each Lender with
respect thereto) and (c) all out-of-pocket expenses, including reasonable
counsel fees and expenses, incurred by the Agent or any Lender in
connection with any litigation, proceeding or dispute in any way related to
the Agent's and the Lenders' relationships with the Company, whether
arising hereunder or otherwise, other than in connection with a successful
action brought by the Company against a Lender for such Lender's breach of
its obligations to the Company. The obligations of the Company under this
section will survive payment of the Loans.
9.4 Notices. All notices provided for herein shall be in writing and
shall be (a) delivered; (b) sent by express or first-class mail; or (c)
sent by facsimile transmission and confirmed in writing provided to the
recipient in a manner described in (a) or (b), and, if to the Agent or a
Lender, addressed to it at the address set forth below its signature, and
if to the Company, addressed to it at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx, Vice President Law/Finance,
Facsimile No. 000-000-0000, or to such other address with respect to any
party as such party shall notify the others in writing; such notices shall
be deemed given when delivered or mailed or so transmitted.
9.5 Assignments and Participations.
(a) Any Lender may, with the written consent of the Company (at
all times other than during the existence of an Event of Default) and
the Agent, which consents shall not be unreasonably withheld, at any
time assign
43
and delegate to one or more Eligible Assignees (provided that no
written consent of the Company or the Agent shall be required in
connection with any assignment and delegation by a Lender to an
Eligible Assignee that is an Affiliate of such Lender) (each an
"Assignee") all, or any ratable part of all, of the Loans, the
Revolving Loan Commitment and the other rights and obligations of such
Lender hereunder, in a minimum amount of $10,000,000; provided,
however, that the Company and the Agent may continue to deal solely
and directly with such Lender in connection with the interest so
assigned to an Assignee until (i) written notice of such assignment,
together with payment instructions, addresses and related information
with respect to the Assignee, shall have been given to the Company and
the Agent by such Lender and the Assignee; (ii) such Lender and its
Assignee shall have delivered to the Company and the Agent an
Assignment and Acceptance in the form of Exhibit F (an "Assignment and
Acceptance") together with any Note subject to such assignment and
(iii) the assignor Lender or Assignee has paid to the Agent a
processing fee in an amount specified by the Agent not exceeding
$3,500 and has agreed to indemnify and hold the Company harmless from
and against any and all costs, expenses and liabilities resulting from
such assignment.
(b) From and after the date that the Agent notifies the assignor
Lender that it has received (and provided its consent with respect to)
an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder shall be
a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and
Acceptance, shall have the rights and obligations of a Lender under
the Loan Documents, and (ii) the assignor Lender shall, to the extent
that rights and obligations hereunder and under the other Loan
Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations
under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the
Agent that it has received an executed Assignment and Acceptance and
payment of the processing fee, (and provided that it consents to such
assignment in accordance with subsection 9.5(a)), the Company shall
execute and deliver to the Agent, a new Revolving Note evidencing such
Assignee's assigned Revolving Loan Commitment, a new Term Note
evidencing such Assignee's assigned Term Loan and, if the assignor
Lender has retained a portion of its Loans and its Revolving Loan
Commitment, a replacement Revolving Note in the principal amount of
the Revolving Loan Commitment retained by the assignor Lender and a
replacement Term Note in the principal amount of the Term Loan
retained by the assignor Lender (such Notes to be in exchange for, but
not in payment of, the Notes held by such Lender). Immediately upon
each Assignee's making its processing fee payment under the Assignment
and Acceptance, this
44
Agreement shall be deemed to be amended to the extent, but only to the
extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Revolving Loan Commitments arising
therefrom. The Revolving Loan Commitment allocated to each Assignee
shall reduce the Revolving Loan Commitment of the assigning Lender pro
tanto.
(d) Any Lender may, at its option, with the written consent of
the Company (at all times other than during the existence of an Event
of Default) sell to another financial institution or institutions
participating interests in a Note payable to such Lender and, in
connection with each such sale, and thereafter, disclose to the
purchaser or prospective purchaser of each such interest financial and
other information concerning the Company. The Company agrees that if
amounts outstanding under this Agreement or a Note are due and unpaid,
or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each such purchaser shall be
deemed to have, to the extent permitted by applicable law, the right
of setoff in respect of its participating interest in amounts owing
under this Agreement and such Note to the same extent as if the amount
of its participating interest were owed directly to it. The Company
further agrees that each such purchaser shall be entitled to the
benefits of sections 2.14 and 2.15 with respect to its participation
in the selling Lender's Revolving Loan Commitment; provided that no
such purchaser shall be entitled to receive any greater amount
pursuant to that section than the Lender would have been entitled to
receive if no such sale had occurred.
9.6 Titles. The titles of sections in this Agreement are for
convenience only and do not limit or construe the meaning of any section.
9.7 Parties Bound; Waiver. The provisions of this Agreement shall
inure to the benefit of and be binding upon any successor of any of the
parties hereto and shall extend and be available to any holder of a Note;
provided that the Company's rights under this Agreement are not assignable.
No delay on the part of the Agent or any Lender in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, and no
single or partial exercise of any right, power or privilege hereunder shall
preclude other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein specified are
cumulative and not exclusive of any rights or remedies which the Agent or a
Lender would otherwise have.
9.8 Governing Law. This Agreement is being delivered in and shall be
deemed to be a contract governed by the laws of the State of Wisconsin and
shall be interpreted and enforced in accordance with the laws of that state
without regard to the principles of conflicts of laws.
45
9.9 Submission to Jurisdiction; Service of Process. As a material
inducement to the Agent and the Lenders to enter into this Agreement:
(a) THE COMPANY AGREES THAT ALL ACTIONS OR PROCEEDINGS IN ANY
MANNER RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS MAY BE BROUGHT ONLY IN COURTS OF THE STATE OF WISCONSIN
LOCATED IN MILWAUKEE COUNTY OR THE FEDERAL COURT FOR THE EASTERN
DISTRICT OF WISCONSIN AND THE COMPANY CONSENTS TO THE JURISDICTION OF
SUCH COURTS. THE COMPANY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH COURT AND ANY RIGHT IT MAY HAVE NOW OR
HEREAFTER HAVE TO CLAIM THAT ANY SUCH ACTION OR PROCEEDING IS IN AN
INCONVENIENT COURT; and
(b) The Company consents to the service of process in any such
action or proceeding by certified mail sent to the address specified
in section 9.4.
Nothing contained herein shall affect the right of the Agent or
the Lenders to serve process in any other manner permitted by law.
9.10 Waiver of Jury Trial. THE COMPANY, THE AGENT AND THE LENDERS
HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THE RIGHT EACH OF THEM MAY HAVE TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM BASED ON OR ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ANY OTHER ACTION OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT TO
THE AGENT AND THE LENDERS TO ENTER INTO THIS AGREEMENT.
9.11 Limitation of Liability. THE COMPANY, THE AGENT AND THE LENDERS
HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR RECOVER FROM ANY
OTHER PARTY ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
ANY DAMAGES, OF WHATEVER NATURE, OTHER THAN ACTUAL DAMAGES.
9.12 Amendments. No provision of this Agreement or the other Loan
Documents may be amended, modified, supplemented, changed,
46
waived, discharged or terminated unless the consent of the Majority Lenders
and the Company is obtained in writing, provided, however, that no such
amendment, modification or waiver which would:
(a) Modify any requirement hereunder that any particular action
be taken by all the Lenders or by the Majority Lenders shall be
effective unless consented to by each Lender;
(b) modify this section 9.12, change the definition of "Majority
Lenders," increase any Revolving Loan Commitment or the Percentage of
any Lender, or reduce any fees payable hereunder, shall be effective
unless consented to by each Lender;
(c) extend the scheduled due date for the payment of principal or
interest on any Note (or reduce the principal amount of or rate of
interest on any Note) shall be made without the consent of the holder
of such Note;
(d) release any collateral (except as permitted herein or in the
applicable Loan Document) shall be effective unless consented to by
each Lender; or
(e) adversely affect the interests, rights, or obligations of the
Agent shall be made without the consent of the Agent.
9.13 Counterparts. This Agreement and any amendment hereof may be
executed in several counterparts, each of which shall be executed by the
Agent and the Company and be deemed to be an original and all of which
together shall constitute one instrument. This Agreement shall become
effective when counterparts hereof executed on behalf of the Company, the
Agent and each Lender shall have been received by the Agent and notice
thereof shall have been given by the Agent to the Company and each Lender.
9.14 Effect on Original Credit Agreement. On the Effective Date this
Credit Agreement will supersede and replace the Original Credit Agreement
and the commitments of the Original Lenders will terminate. The only
provisions of the Original Credit Agreement which will continue to be
effective are those provisions which expressly state that they survive the
repayment of the obligations of the Company under the Original Credit
Agreement. All "Revolving Loans" under the Original Credit Agreement
outstanding on the Effective Date shall be repaid in full, including
accrued interest thereon. All commitment fees accrued under the Original
Credit Agreement shall be due on the Effective Date.
47
9.15 Entire Agreement. This Agreement and the other Loan Documents
shall constitute the entire agreement of the parties pertaining to the
subject matter hereof and supersedes all prior or contemporaneous
agreements and understandings of the parties in connection therewith.
XXXXXX CO., INC.
BY
----------------------------------
Its
-------------------------------
Revolving
Loan
Commitment Percentage
$22,800,000 30% FIRSTAR BANK, NATIONAL ASSOCIATION,
as the Agent and a Lender
BY
----------------------------------
Its
-------------------------------
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Facsimile No.: 000-000-0000
$15,200,000 20% BANK ONE, N.A. (Main Office Chicago)
BY
----------------------------------
Its
-------------------------------
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Facsimile No.: 000-000-0000
48
Revolving
Loan
Commitment Percentage
$15,200,000 20% U.S. BANK NATIONAL ASSOCIATION
BY
----------------------------------
Its
-------------------------------
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Facsimile No.: 000-000-0000
$15,200,000 20% LASALLE BANK NATIONAL ASSOCIATION
BY
----------------------------------
Its
-------------------------------
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Facsimile No.: 000-000-0000
49
Revolving
Loan
Commitment Percentage
$ 7,600,000 10% ST. XXXXXXX BANK, F.S.B.
BY
----------------------------------
Its
-------------------------------
Address: 00000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Tans
Facsimile No.: 000-000-0000
----------- ----
$76,000,000 100%
============================
50
SCHEDULE 1.1
Existing Liens and Security Interests
None.
SCHEDULE 3.1
Subsidiaries
1. Xxxxx Machine Co., Inc., a Nevada corporation
2. Pacific Cast Technologies, Inc., a Nevada corporation
SCHEDULE 3.4
Litigation
None
SCHEDULE 3.18
Environmental Matters
Xxxxxx Co., Inc. has been named as a potentially responsible party at the
following locations:
Site Status
1) Hunts Superfund Site Consent order signed, site
Caledonia, WI remedied, monitoring continuing.
2) Xxxxxxxxx Superfund Site Site remedied, owner has
Franklin, WI monitoring responsibility.
3) ILCO Superfund Site Xxxxxx settled as a De Minimis
Leeds, AL party and dismissed.
4) Marina Cliffs Superfund Site Ladish settled as a De Minimis
South Milwaukee, WI party and dismissed.
Former subsidiary of Xxxxxx Co., Inc. was named as a potentially responsible
party at the Operating Industries Inc. site in California. The subsidiary was
liquidated with no additional assets.
SCHEDULE 3.20
Year 2000 Compliance
Xxxxxx Co., Inc.implemented a new information technology system and has found
the new system to be Year 2000 compliant.
SCHEDULE 6.3
Guaranty Obligations
Xxxxxx Co., Inc. has guaranteed certain aspects of the performance and condition
of the assets of its former Industrial Products Division ("IPD") under the sale
of IPD to Trinity Fitting and Flange Company, Inc.
