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EXHIBIT 10.10
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (the "Agreement") dated as of December 31, 1997
(the "Effective Date") is between Norwest Bank Wisconsin, National Association
(the "Bank") and Advantage Learning Systems, Inc. (the "Borrower").
BACKGROUND
The Borrower has asked the Bank to provide a Seven Million Five Hundred
Thousand and No/100 Dollars ($7,500,000.00) line of credit to be used for
general working capital and acquisitions.
The Bank is agreeable to meeting the Borrower's request provided that
the Borrower agrees to the terms and conditions of this Agreement.
The Revolving Note, this Agreement, and all "Documents" described in
Exhibit A shall be referred to collectively as the "Documents."
In consideration of the above premises, the Bank and the Borrower agree
as follows:
1. LINE OF CREDIT
1.1. Line of Credit Amount. During the Line Availability Period
defined below, the Bank agrees to provide a revolving line of credit (the
"Line") to the Borrower. Outstanding amounts under the Line shall not, at any
one time, exceed Seven Million Five Hundred Thousand and No/100 Dollars
($7,500,000.00).
1.2. Line Availability Period. The "Line Availability Period" shall
mean the period of time from the Effective Date or the date on which all
conditions precedent described in this Agreement have been met, whichever is
later, to the Line Expiration Date of December 31, 1998.
1.3. The Revolving Note. The Borrower's obligation to repay
advances under the Line shall be evidenced by a single promissory note (the
"Revolving Note") dated as of the Effective Date, and in form and content
acceptable to the Bank. Reference is made to the Revolving Note for interest
rate and repayment terms.
2. EXPENSES
In the event the Borrower fails to pay the Bank any amounts due under
this Agreement or under the Documents, the Borrower shall pay all costs of
collection, including reasonable attorneys' fees and legal expenses incurred by
the Bank.
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3. ADVANCES AND PAYMENTS
3.1. Requests for Advances. Any line advance requested under the
terms of this Agreement shall be requested by telephone or in a writing
delivered to the Bank (or transmitted via facsimile) by any person reasonably
believed by the Bank to be authorized by the Borrower to do so. The Bank will
not consider any such request following an event which is, or with notice or
the lapse of time would be, an event of default under this Agreement. Proceeds
shall be deposited into the Borrower's account at the Bank or disbursed in such
other manner as the parties may agree.
3.2. Interest Rate Options. In addition to interest rates based on
the Base Rate Option defined in the Revolving Note, the Borrower may elect a
fixed rate of interest for a fixed time period and principal amount agreeable
to the Bank and Borrower that is based upon any applicable margin stated in
said promissory note and an interest rate derived from the current LIBOR rate
available to the Bank on national or international money markets for a similar
time period and dollar amount.
In order to fix an interest rate as provided above, the Borrower must
request a rate quote from the Bank, which must be accepted by the Borrower
following quotation by the Bank as a condition to fixing. In order to exercise
this option, the following terms and conditions must be satisfied:
LIBOR Interest Rate Option. To elect the LIBOR Interest Rate Option, as
defined in the Revolving Note, the Borrower must request a quote from the Bank
one day prior to funding. This request must designate an amount (the "LIBOR
Interest Rate Portion") and a period (the "LIBOR Interest Rate Period"). The
LIBOR Interest Rate Portion must be at least $100,000 and the LIBOR Interest
Rate Period will be for 30, 60 or 90 days or any other period to which the
parties may agree. The Bank shall not be obligated to provide a LIBOR Interest
Rate quote if it determines that no deposits with an amount and maturity equal
to those for which a quotation has been requested are available to it in the
London Interbank Market. The Borrower must orally accept a quote when received
or it will be deemed rejected. If accepted, the LIBOR Interest Rate Option will
remain in effect for the LIBOR Interest Rate Period specified in the quote. At
the end of each LIBOR Interest Rate Period the principal amount subject to the
LIBOR Interest Rate Option shall bear interest at the Base Rate Option (as
defined in the Revolving Note).
3.3. Payments. All principal, interest and fees due under the
Documents shall be paid by the direct debit of available funds deposited in the
Borrower's account with the Bank. The Bank shall debit the account on the dates
the payments become due. If a due date does not fall on a day on which the Bank
is open for substantially all of its business (a "Banking Day," except as
otherwise provided), the Bank shall debit the account on the next Banking Day,
and interest shall continue to accrue during the extended period. If there are
insufficient funds in the account on the day the Bank enters any debit
authorized by this Agreement, the debit will be reversed and the payment shall
be due immediately without necessity of demand by direct remittance of
immediately available funds. For amounts bearing interest at the LIBOR Rate (if
any) a Banking
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Day is a day on which the Bank is open for business and on which dealings in
U.S. dollar deposits are carried on in the London interbank market.
4. CONDITIONS PRECEDENT
The Borrower must deliver to the Bank the documents described in
Exhibit A, properly executed and in form and content acceptable to the Bank,
prior to the Bank's initial advance under this Agreement.
5. REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Agreement, the Borrower, to the
best of its knowledge and upon due inquiry, makes the representations and
warranties contained in Exhibit B. Each request for an advance or a disbursement
under this Agreement following the Effective Date constitutes a reaffirmation of
these representations and warranties.
6. COVENANTS
6.1. Financial Information and Reporting. Except as otherwise
stated in this Agreement, all financial information provided to the Bank shall
be compiled using generally accepted accounting principles consistently
applied. During the time period that credit is available under this Agreement,
and afterward until all amounts due under the Documents are paid in full,
unless the Bank shall otherwise agree in writing, the Borrower agrees to:
(a) Annual Financial Statements. Provide the Bank within 90
days of the Borrower's fiscal year end, the Borrower's annual financial
statements. The statements must be audited with an unqualified opinion
by a certified public accountant acceptable to the Bank.
(b) Interim Financial Statements. Provide the Bank within 45
days of the end of each quarter, the Borrower's interim financial
statements for the interim period then ending. The statements must be
current through the end of that period and must be certified as correct
by an officer of the Borrower in form acceptable to the Bank.
(c) Notices of Default. Provide the Bank prompt written
notice of: 1) any event which has or might after the passage of time
or the giving of notice, or both, constitute an event of default under
any of the Documents; or 2) any future event that would cause the
representations and warranties contained in this Agreement to be
untrue when applied to the Borrower's circumstances as of the date of
such event.
(d) Additional Information. Provide the Bank with such other
information as it may reasonably request, and permit the Bank to visit
and inspect its properties and examine its books and records.
6.2. Financial Covenants. During the time period that credit is
available under this Agreement, and afterward until all amounts due under the
Documents are paid in full, unless the
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Bank shall otherwise agree in writing, the Borrower agrees to comply with the
financial covenants described below, which shall be calculated using generally
accepted accounting principles consistently applied, except as they may be
otherwise modified by the following capitalized definitions:
"Tangible Net Worth" means total assets less total liabilities and less
the following types of assets: 1) leasehold improvements; 2) receivables and
other investments in or amounts due from any shareholder, director, officer,
employee or other person or entity related to or affiliated with the Borrower;
3) goodwill, patents, copyrights, mailing lists, trade names, trademarks,
servicing rights, organizational and franchise costs, bond underwriting costs
and other like assets properly classified as intangible.
(a) Total Liabilities to Tangible Net Worth Ratio. Maintain
a ratio of total liabilities to Tangible Net Worth of less than .45 to
1.0 as of the end of each fiscal quarter commencing December 31, 1997.
6.3. Other Covenants. During the time period that credit is
available under this Agreement, and afterward until all amounts due under the
Documents are paid in full, unless the Bank shall otherwise agree in writing,
the Borrower agrees to:
(a) Other Liens. Refrain from allowing any security interest
or lien on property it owns now or in the future or assign any interest
that it may have in any assets or subordinate any rights that it may
have in any assets now or in the future, except liens in favor of the
Bank.
(b) Purpose of Advances. Advances under the Line for the
purpose of financing acquisitions of other companies or business
entities shall not at any time exceed $3,000,000.00.
(c) Insurance. Cause its properties to be adequately insured
by a reputable insurance company against loss or damage and to carry
such other insurance (including business interruption, flood, or
environmental risk insurance) as is required of or usually carried by
persons engaged in the same or similar business.
(d) Form of Organization and Mergers. Refrain from changing
its legal form of organization.
(e) Books and Records. Maintain adequate books and records,
refrain from making any material changes in its accounting procedures
for tax or other purposes, and permit the Bank to inspect same upon
reasonable notice.
(f) Compliance with Laws. Comply in all material respects
with all laws applicable to its form of organization, business, and the
ownership of its property.
(g) Preservation of Rights. Maintain and preserve all
permits, licenses, rights, privileges, charters and franchises that it
now owns.
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These covenants were negotiated by the Bank and Borrower based on
information provided to the Bank by the Borrower. A breach of a covenant is an
indication that the risk of the transaction has increased. As consideration for
any waiver or modification of these covenants, the Bank may require: additional
collateral, guaranties or other credit support; higher fees or interest rates;
and possible modifications to the Documents and the monitoring of the Agreement.
The waiver or modification of any covenant that has been violated by the
Borrower shall be made at the sole discretion of the Bank. These options do not
limit the Bank's right to exercise its rights under Section 7 of this Agreement.
7. EVENTS OF DEFAULT AND REMEDIES
7.1. Default. Upon the occurrence of any one or more of the
following events of default, or at any time afterward unless the default has
been cured, the Bank may declare the Line to be terminated and in its
discretion accelerate and declare the unpaid principal, accrued interest and
all other amounts payable under the Revolving Note and the Documents to be
immediately due and payable:
(a) Failure by the Borrower to make any payment of principal
or interest due under the Revolving Note which continues for 15 days
after its due date.
(b) Default by the Borrower in the observance or performance
of any covenant or agreement contained in this Agreement, and
continuance for more than 15 days.
(c) Default by the Borrower in the observance or performance
of any covenant or agreement contained in any of the Documents
(excepting this Agreement), after giving effect to any applicable grace
period.
(d) Default by the Borrower with respect to any indebtedness
or obligation owed to the Bank, which is unrelated to any loan or
facility subject to the terms of this Agreement, or to any other
creditor, which would allow the maturity of any such indebtedness or
obligation to be accelerated.
(e) Any representation or warranty made by the Borrower to
the Bank in the Agreement, or any financial statement or report
submitted to the Bank by or on behalf of the Borrower before or after
the Effective Date of this Agreement is untrue or misleading in any
material respect.
(f) Any litigation or governmental proceeding against the
Borrower seeking an amount in excess of $250,000.00 which is not
insured or subject to indemnity by a solvent third party either 1)
results in a judgment equal to or in excess of that amount against the
Borrower or 2) remains unresolved on the 270th day following the date
of service on the Borrower.
(g) A garnishment, levy or writ of attachment, or any local,
state, or federal notice of tax lien or levy is made or issues against
the Borrower, or any post judgment
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process or procedure is commenced or any supplementary remedy for the
enforcement of a judgment is employed against the Borrower or the
Borrower's property.
(h) A material adverse change occurs in the Borrower's
financial condition or ability to repay its obligations to the Bank.
7.2. Immediate Default. If, with or without the Borrower's
consent, a custodian, trustee or receiver is appointed for any of the
Borrower's properties, or if a petition is filed by or against the Borrower
under the United States Bankruptcy Code, or the Borrower is dissolved,
liquidated, or winds up its business, then the Line shall immediately terminate
without notice, and the unpaid principal, accrued interest, and all other
amounts payable under the Revolving Note shall become immediately due and
payable.
7.3. Supplementary Cross Default of Other Promissory Notes. The
Borrower agrees that each promissory note evidencing indebtedness of the
Borrower to the Bank which is not otherwise documented in this Agreement, and
regardless of whether delivered before or after the Effective Date, shall hereby
be amended on a supplementary basis to provide that each such promissory note
may be accelerated by the Bank in its discretion following the occurrence of any
event of default agreed to in Section 7.1, or shall be accelerated and become
immediately due and payable without notice by the Bank following the occurrence
of any event of default agreed to in Section 7.2, which events of default and
rights of acceleration are in addition to, and not exclusive of, any events of
default and rights of acceleration agreed to in the promissory note itself.
8. MISCELLANEOUS
(a) No Waiver; Cumulative Remedies. No failure or delay by the
Bank in exercising any rights under this Agreement shall be deemed a waiver of
those rights. The remedies provided for in the Agreement are cumulative and not
exclusive of any remedies provided by law.
(b) Amendments or Modifications. Any amendment or modification of
this Agreement must be in writing and signed by the Bank and Borrower. Any
waiver of any provision in this Agreement must be in writing and signed by the
Bank.
(c) Binding Effect; Assignment. This Agreement and the Documents
are binding on the successors and assigns of the Borrower and Bank. The
Borrower may not assign its rights under this Agreement and the Documents
without the Bank's prior written consent. The Bank may sell participations in
or assign this Agreement and the Documents and exchange financial information
about the Borrower with actual or potential participants or assignees.
(d) Wisconsin Law. This Agreement and the Documents shall be
governed by the substantive laws of the State of Wisconsin.
(e) Severability of Provisions. If any part of this Agreement or
the Documents are unenforceable, the rest of this Agreement or the Documents may
still be enforced.
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(f) Integration. This Agreement and the Documents describes the
entire understanding and agreement of the parties and supersedes all prior
agreements between the Bank and the Borrower relating to each credit facility
subject to this Agreement, whether verbal or in writing.
Address for notices to Bank: Address for notices to Borrower:
Norwest Bank Wisconsin, Advantage Learning Systems, Inc.
National Association 0000 Xxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx X.X. Xxx 0000
Xxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx Attention: Xxxx Xxxxxxxx
NORWEST BANK WISCONSIN, ADVANTAGE LEARNING SYSTEMS, INC.
NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx /s/ Xxxxxxx Xxxxxxxx
----------------------------- ----------------------------------------
Its: Vice President Its: Chief Executive Officer/Chief
----------------------------- ----------------------------------------
Financial Officer
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EXHIBIT A
CONDITIONS PRECEDENT
PLEASE NOTE: This Exhibit describes each Note, Authorizations,
Organizational Documents, and all miscellaneous documents, reports, certificates
and other information required as a condition to each advance under the
Agreement, whether or not they have previously been delivered to the Bank.
Revolving Note. The Revolving Note of the Borrower to the Bank in the
maximum principal amount of $7,500,000.00.
Certificate of Authority of Borrower. A Certificate of Authority
executed by such person or persons authorized by the Borrower's organizational
documents and/or agreements to do so, certifying the incumbency and signatures
of the officers or other persons authorized to execute the Documents, and
authorizing the execution of the Documents and performance in accordance with
their terms.
Articles of Incorporation and By-Laws. A recently certified copy of the
Borrower's Articles of Incorporation and By-Laws, and any amendments, if
applicable.
Certificate of Status. A recently certified copy of the Borrower's
Certificate of Status.
Arbitration Agreement. The Bank's standard form of Arbitration
Agreement signed by the Bank and Borrower, subjecting potential controversies
between them to binding arbitration, including but not limited to those relating
to the Documents and this Agreement.
Evidence of Insurance. Evidence that the Borrower has obtained all
insurance coverage required by this Agreement.
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EXHIBIT B
REPRESENTATIONS AND WARRANTIES
Organizational Status. The Borrower is a corporation duly formed and in
good standing under the laws of the State of Wisconsin.
Authorization. The execution and delivery of the Documents is within
the Borrower's powers, has been duly authorized by the Borrower and does not
conflict with any of its organizational documents or any other agreement by
which the Borrower is bound, and has been signed by all persons authorized and
required to do so under its organizational documents.
Financial Reports. The Borrower has provided the Bank with the
Borrower's annual certified public accountant audited financial statement dated
December 31, 1996 and its interim financial statement dated September 30, 1997,
and these statements fairly represent the financial condition of the Borrower as
of their respective dates and were prepared in accordance with generally
accepted accounting principles consistently applied.
Litigation. There is no litigation or governmental proceeding pending
or threatened against the Borrower which could have a material adverse effect on
the Borrower's financial condition or business.
Taxes. The Borrower has paid when due all federal, state and local
taxes.
No Default. There is no event which is, or with notice or the lapse of
time would be, an event of default under this Agreement.
ERISA. The Borrower is in compliance in all material respects with the
Employee Retirement Income security Act of 1974 and has received no notice to
the contrary from the Pension Benefit Guaranty Corporation or any related
governmental entity.
Environmental Matters. 1) The Borrower is in compliance in all material
respects with all health and environmental laws applicable to the Borrower and
its operations and knows of no conditions or circumstances that could interfere
with such compliance in the future; 2) the Borrower has obtained all
environmental permits and approvals required by law for the operation of its
business; and 3) the Borrower has not identified any "recognized environmental
conditions," as that term is defined by the American Society for Testing and
Materials in its standards for environmental due diligence, which could subject
the Borrower to enforcement action if brought to the attention of appropriate
governmental authorities.
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REVOLVING NOTE
$7,500,000.00 December 31, 1997
FOR VALUE RECEIVED, Advantage Learning Systems, Inc. (the "Borrower")
promises to pay to the order of Norwest Bank Wisconsin, National Association
(the "Bank"), at its principal office or such other address as the Bank or
holder may designate from time to time, the principal sum of Seven Million Five
Hundred Thousand and No/100 Dollars ($7,500,000.00), or the amount shown on the
Bank's records to be outstanding, plus interest (calculated on the basis of
actual days elapsed in a 360-day year) accruing each day on the unpaid principal
balance at the annual interest rates defined below. Absent manifest error, the
Bank's records shall be conclusive evidence of the principal and accrued
interest owing hereunder.
INTEREST RATE
Base Rate Option. Unless the Borrower chooses the LIBOR Interest Rate
Option as defined below, the principal balance outstanding under this Revolving
Note shall bear interest at an annual rate equal to the Base Rate, less 1.0%
floating (the "Base Rate Option"). Base Rate means the rate of interest
established by the Bank from time to time as its "base" or "prime" rate of
interest at its principal office in Milwaukee, Wisconsin.
LIBOR Interest Rate Option. Subject to the terms and conditions of the
Agreement the Borrower may elect that all or portions of the principal balance
of this Revolving Note bear interest at the LIBOR Interest Rate plus 1.25% (the
"LIBOR Interest Rate Option"). Specific reference is made to the Interest Rate
Options section of the Agreement for terms governing the designation of interest
periods and rate portions.
The LIBOR Interest Rate shall be computed in accordance with the
following formula:
London Interbank Offered Rate
LIBOR Interest Rate = -----------------------------
1.00 - Reserve Requirement
Where,
(i) "London Interbank Offered Rate" means the Bank's cost of
funds as determined by the Bank's Treasury Division, based
upon the average rate at which U.S. Dollar deposits with a
term equal to the applicable LIBOR Interest Rate Period and in
an amount equal to the LIBOR Interest Rate Portion are
available to the Bank at the time or determination on the
London Interbank Market.
(ii) "Reserve Requirement" means the Federal Reserve System
requirement (expressed as a percentage) applicable to the
dollar deposits used in calculating the LIBOR Interest Rate
above.
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REPAYMENT TERMS
Interest. Interest accruing under the Base Rate Option shall be payable
on the last day of each month beginning December 31, 1997. Interest accruing
under the LIBOR Interest Rate Option shall be payable, as applicable, at the end
of each LIBOR Interest Rate Period.
Principal. Principal, and any unpaid interest, shall be payable in a
single payment due on December 31, 1998.
PREPAYMENT FEE. The Borrower may prepay advances of principal accruing
interest under the Base Rate Option at any time without penalty. Each prepayment
of an advance of principal accruing interest at the LIBOR interest rate option,
whether voluntary or by reason of acceleration, shall be accompanied by a
prepayment fee equal to the amount, if any, by which:
(i) the additional interest that would have been payable on
the amount prepaid, if it had not been paid until the last day
of the applicable interest period, exceeds
(ii) the interest that would have been recoverable by the Bank
by reinvesting the amount of principal prepaid from the
prepayment date to the last day of the applicable interest
period in U.S. Government Securities having a maturity date on
or about that date.
ADDITIONAL TERMS AND CONDITIONS. This Revolving Note is issued pursuant
to a Credit Agreement of even date between the Bank and the Borrower (the
"Agreement"). The Agreement, and any amendments or substitutions, contains
additional terms and conditions, including default and acceleration provisions,
which are incorporated into this Revolving Note by reference. Capitalized terms
not expressly defined herein shall have the meanings given them in the
Agreement. The Borrower agrees to pay all costs of collection, including
reasonable attorneys' fees and legal expenses incurred by the Bank if this
Revolving Note is not paid as provided above. This Revolving Note shall be
governed by the substantive laws of the State of Wisconsin.
WAIVER OF PRESENTMENT AND NOTICE OF DISHONOR. Borrower and any other
person who signs, guarantees or endorses this Revolving Note, to the extent
allowed by law, hereby waives presentment, demand for payment, notice of
dishonor, protest, and any notice relating to the acceleration of the maturity
of this Revolving Note.
ADVANTAGE LEARNING SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxx /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Its: Chief Executive Officer/Chief Financial
----------------------------------------
Officer
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ARBITRATION AGREEMENT
Norwest Bank Wisconsin, Advantage Learning Systems, Inc.
National Association 0000 Xxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx 00000
Xxxxxxxx, Xxxxxxxxx 00000 (the "Borrower")
(the "Bank")
December 31, 1997
1. AGREEMENT TO ARBITRATE. The Bank and Borrower agree to submit
to binding arbitration all claims, disputes and controversies (whether in tort,
contract, or otherwise, except "core proceedings" under the U.S. Bankruptcy
Code) arising between themselves and their respective employees, officers,
directors, attorneys and other agents, which relate in any way without
limitation to existing and future loans and extensions of credit or requests for
additional credit, including by way of example but not by way of limitation the
negotiation, collateralization, administration, repayment, modification,
default, termination and enforcement of such loans or extensions of credit.
2. RULES GOVERNING ARBITRATION. Arbitration under this Agreement
will be governed by the Federal Arbitration Act and proceed in Milwaukee,
Wisconsin in accordance with the American Arbitration Association's commercial
arbitration rules ("AAA Rules").
3. SELECTION OF ARBITRATOR. Arbitration will be conducted before
a single neutral arbitrator selected in accordance with AAA Rules and who shall
be an attorney who has practiced commercial law for at least ten years.
4. STATUTES OF LIMITATION AND PROCEDURAL ISSUES. The arbitrator
will determine whether an issue is arbitratable and will give effect to
applicable statutes of limitation. Judgment upon the arbitrator's award may be
entered in any court having jurisdiction. The arbitrator has the discretion to
decide, upon documents only or with a hearing, any motion to dismiss for
failure to state a claim or any motion for summary judgment.
5. DISCOVERY. Discovery will be governed by the Wisconsin Rules
of Civil Procedure. Discovery must be completed at least 20 days before the
hearing date and within 180 days of the commencement of arbitration. Each
request for an extension and all other discovery disputes will be determined by
the arbitrator upon a showing that the request is essential for the party's
presentation and that no alternative means for obtaining information are
available during the initial discovery period.
6. EXCEPTIONS TO ARBITRATION. This Agreement does not limit the
right of either party to a) foreclose against real or personal property
collateral; b) exercise self-help remedies such as setoff or repossession; c)
obtain provisional remedies such as replevin, injunctive relief, attachment or
the appointment of a receiver during the pendency or before or
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after any arbitration proceeding; or d) obtain a cognitive judgment, if
available. These exceptions do not constitute a wavier of the right or
obligation of either party to submit any dispute to arbitration, including those
arising from the exercise of these remedies.
7. ARBITRATION COSTS AND FEES. The arbitrator will award costs
and expenses in accordance with the provisions of the documents evidencing each
loan or extension of credit.
NORWEST BANK WISCONSIN, ADVANTAGE LEARNING SYSTEMS, INC.
NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx /s/ Xxxxxxx Xxxxxxxx
------------------------ ----------------------------------------
Its: Vice President Its: Chief Executive Officer/Chief
------------------------ ----------------------------------------
Financial Officer
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