Exhibit 4.1
CREDIT AGREEMENT
AMONG
BANDO XXXXXXXXXX SMALL BUSINESS LENDING CORPORATION,
THE FINANCIAL INSTITUTIONS PARTIES HERETO
AND
FIRSTAR BANK MILWAUKEE, N.A.,
AS AGENT
DATED AS OF MARCH 11, 1998
TABLE OF CONTENTS
Page
1. Definitions 1
2. The Credit Facilities; Fees
2.1 Revolving Loans 14
2.2 Interest Rate Option 15
2.3 Borrowing Procedure for Revolving Loans 16
2.4 Continuation and Conversion Procedure 17
2.5 Commitment Fee 18
2.6 Reduction or Termination of Revolving
Loan Commitment 18
2.7 Interest Rates 19
2.8 Payments 19
2.9 Prepayments 20
2.10 Additional LIBOR Rate Loan Provisions 20
2.11 Setoff 21
2.12 Pro Rata Treatment; Sharing of Payments 21
2.13 Capital Adequacy 22
2.14 Yield Protection 23
2.15 Other Fees 23
3. Representations and Warranties
3.1 Organizations, Subsidiaries; Corporate Power; REIT Status 24
3.2 Authorization and Binding Effect 24
3.3 Financial Statements 24
3.4 Litigation 25
3.5 Restricted Payments 25
3.6 Indebtedness; No Default 25
3.7 Ownership of Properties; Liens and Encumbrances 25
3.8 Tax Returns Filed 26
3.9 Margin Stock 26
3.10 Investment Company 26
3.11 ERISA Liabilities 26
3.12 No Burdensome Agreements 27
3.13 Trademarks, Etc. 27
3.14 Dump Sites 27
3.15 Tanks 27
3.16 Other Environmental Conditions 27
3.17 Changes in Laws 27
3.18 Environmental Judgments, Decrees and Orders 28
3.19 Environmental Permits and Licenses 28
3.20 Year 2000 28
3.21 Accuracy of Information 28
4. Conditions for Borrowing
4.1 On or Before the Closing Date 28
4.2 On or Before Each Subsequent Borrowing Date 30
5. Affirmative Covenants
5.1 Monthly Financial Statement 31
5.2 Other Financial Information 31
5.3 Books and Records; Inspection 31
5.4 Insurance 31
5.5 Condition of Property 32
5.6 Payment of Taxes 32
5.7 Compliance with Law 32
5.8 ERISA Certificate 32
5.9 Compliance with Other Loan Documents 33
5.10 Notice of Default or Claimed Default 33
5.11 Deposit Accounts 34
6. Negative Covenants
6.1 Restricted Payments 34
6.2 Limitations on Indebtedness 34
6.3 Limitations on Contingent Obligations 34
6.4 Limitation on Liens and Encumbrances 34
6.5 Limitation on Mergers, Etc. 34
6.6 Limitation on Acquisitions, Advances and
Investments 34
6.7 Lines of Business 35
6.8 Sale and Leaseback 35
6.9 Adjusted Tangible Net Worth 35
6.10 Leverage Ratio 35
6.11 Nonperforming Loans 35
6.12 Third Party Loan Concentration 35
6.13 Net Earnings 35
6.14 Lease Portfolio Coverage Ratio 35
6.15 Transactions with Affiliates 35
6.16 Concessions to Borrowers 36
7. Events of Default
7.1 Events of Default 36
7.2 Remedies 37
7.3 Revolving Loans to Retire Commercial Paper 38
8. The Agent
8.1 Appointment and Duties of Agent 39
8.2 Discretion and Liability of the Agent 39
8.3 Notice of Default 39
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 40
8.8 Lender Credit Decision 40
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 Participations 43
9.6 Titles 44
9.7 Parties Bound; Waiver 44
9.8 Governing Law 44
9.9 Submission to Jurisdiction; Service of
Process 44
9.10 Waiver of Jury Trial 45
9.11 Limitation of Liability 45
9.12 Amendments 45
9.13 Counterparts 46
9.14 Entire Agreement 46
Schedules
Schedule 1: Existing Liens and Security Interests
Schedule 3.1: Subsidiaries
Schedule 3.4: Litigation
Schedule 3.20: Year 2000 Compliance
Schedule 6.2: Existing Indebtedness
Schedule 6.3: Existing Contingent Obligations
Schedule 6.12: Third Party Loan Concentration
Exhibits
Exhibit A: Form of Revolving Note
Exhibit B: Form of Notice of Borrowing
Exhibit C: Form of Conversion/Continuation Notice
Exhibit D: Form of Borrowing Base Certificate
Exhibit E: Form of Compliance Certificate
Exhibit F: Form of Opinion of Company Counsel
Exhibit G: Form of Parent Guaranty
Exhibit H: Form of Collateral Custodian Agreement
Exhibit I: Form of Notice Regarding Nonperforming Loan
Exhibit J: Form of Notice Regarding Nonperforming Lease
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of March 11, 1998, is among
BANDO XXXXXXXXXX SMALL BUSINESS LENDING CORPORATION, a Wisconsin
corporation (the "Company"), the financial institutions parties hereto
(individually a "Lender" and collectively the "Lenders") and FIRSTAR BANK
MILWAUKEE, N.A., as agent for the Lenders (in such capacity, the "Agent").
The parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following
terms have the following meanings:
"Adjusted LIBOR Rate" means, with respect to a LIBOR Rate
Loan for the relevant Interest Period, a rate per annum (rounded upward,
if necessary, to the next higher 1/16 of 1%) determined according to the
following formula:
Adjusted LIBOR Rate = LIBOR Rate
1.00 - LIBOR Reserve Requirement
"Adjusted Tangible Assets" means, with respect to the
Company on any date of determination, all assets except: (a) trademarks,
tradenames, franchises, goodwill, and other similar intangibles;
(b) assets located and notes and receivables due from obligors domiciled
outside the United States of America, Puerto Rico, or Canada; and
(c) accounts, notes, and other receivables due from Affiliates or
employees.
"Adjusted Tangible Net Worth" means, with respect to the
Company on any date of determination, the remainder of (a) net book value
(after deducting related depreciation, obsolescence, amortization and
other proper reserves) at which the Adjusted Tangible Assets of the
Company would be shown on a balance sheet of the Company at such date, but
excluding any amounts arising from write-ups of assets, minus (b) the
amount at which the Company's liabilities (other than preferred stock,
capital stock, surplus, and retained earnings) would be shown on such
balance sheet, and including as liabilities all reserves for contingencies
and other potential liabilities.
"Affiliate" of any Person means any other Person, directly
or indirectly controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if the
controlling Person owns 10% or more of any class of voting securities (or
other ownership interests) of the controlled Person or possesses, directly
or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether by ownership of
stock (or other ownership interests), by contract or otherwise. Although
not Affiliates within the definition of this term, for purposes of this
Agreement, Xxx Xxxxxxxxx Original Dolls, Inc. and Licensed Products, Inc.
shall be deemed Affiliates.
"Applicable Margin" means (a) in the case of Base Rate
Loans, 0% and (b) in the case of LIBOR Rate Loans, 1.375%.
"Applicable Percentage" means, with respect to each Third
Party Loan, (a) 100% in the case of a Third Party Loan which is totally
owned and funded by the Company and with respect to which the Company has
neither assigned such loan nor granted a participation interest therein,
(b) 0% in the case of either (i) a Third Party Loan for which the Company
has sold a 50% or greater participation interest to a third party or (ii)
a Third Party Loan for which the Company has sold a participation interest
to a third party and such third party is entitled to receive principal and
interest payments on a preferential basis and (c) in all other cases, the
Applicable Percentage shall be the percentage interest in such Third Party
Loan retained by the Company.
"Appraised Value" means the fair market value of real
property securing a Third Party Loan or constituting Eligible Leased Real
Estate as determined by an MAI appraiser acceptable to the Agent in a
written appraisal which satisfies all regulatory requirements applicable
to the Lenders; provided, however, that in each circumstance in which the
Appraised Value exceeds $1,000,000 or for an appraisal of property
securing a Nonperforming Loan, such appraisal shall be reviewed by the
Agent and if the Agent, in its reasonable judgment, determines that the
value of such real property is less that the amount shown in the
applicable appraisal, then the Appraised Value shall be such lesser amount
determined by the Agent; provided, further, that in the case of a
Nonperforming Loan, the Appraised Value shall be $0 until the date the
Agent receives a new appraisal of the relevant real property, or the
Company and the Majority Lenders otherwise agree.
"Base Rate" means, for any day, the Prime Rate in effect
for such day.
"Base Rate Loan" means a Revolving Loan that bears interest
at a rate determined by reference to the Base Rate.
"Borrowing Base Amount" means, on each date of
determination, an amount equal to the sum of:
(a) the Owner-Occupied Real Estate Loan Borrowing Base
Amount;
(b) the Leased Real Estate Borrowing Base Amount;
(c) the lesser of (i) 80% of the Applicable Percentages of
the outstanding principal balances of Eligible Current Asset Loans and
(ii)[a] during the period from the Closing Date through December 30, 1998,
$10,000,000 and [b] thereafter, $0;
(d) the lesser of (i) 80% of the Applicable Percentage of
the outstanding principal balances of Eligible Construction Loans and
(ii)[a] during the period from the Closing Date through December 30, 1998,
$8,000,000 and [b] thereafter, $0; and
(e) 80% of Eligible Construction Costs.
"Borrowing Base Certificate" means a certificate in
substantially the form of Exhibit D.
"Borrowing Date" means each date on which a Revolving 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 Chicago,
Illinois and, with respect to the making, payment or rate determination of
a LIBOR Rate Loan, a day on which dealings in United States dollars are
carried on in the London interbank market.
"Capital Funds" means the sum of Adjusted Tangible Net
Worth plus the outstanding principal amount of all Subordinated Debt.
"Capitalized Lease" means any lease, the obligations under
which have been, or in accordance with GAAP are required to be, recorded
as a capital lease liability on the balance sheet of the Company.
"Closing Date" means the first Borrowing Date.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Custodian" means Firstar Trust Company or any
successor appointed as the Collateral Custodian pursuant to the Collateral
Custodian Agreement.
"Collateral Custodian Agreement" means the Collateral
Agency Agreement in substantially the form of Exhibit H, as amended,
revised, supplemented or restated from time to time.
"Commercial Paper" means commercial paper issued by the
Company and placed by a CP Placement Agent.
"Compliance Certificate" means a certificate in
substantially the form of Exhibit E.
"Contingent Obligation" means, as to any Person, any direct
or indirect liability of that Person with respect to any Indebtedness,
lease, dividend, letter of credit or other obligation (the "primary
obligation") of another Person, including (a) any obligation to purchase,
repurchase or otherwise acquire a primary obligation or any security
therefor, (b) any obligation to advance or provide funds for the payment
or discharge of a primary obligation or to maintain the working capital or
net worth of another Person and (c) any obligation to assure or hold
harmless the holder of a primary obligation against loss.
"Controlled Group" means a group of trades or businesses
(whether or not incorporated) under common control, as defined in the
regulations issued pursuant to section 414(c) of the Code or such other
regulations prescribed by the Pension Benefit Guaranty Corporation
pursuant to section 4001(b)(1) of ERISA, of which the Company is a part.
"Conversion/Continuation Notice" means a notice in
substantially the form of Exhibit C.
"CP Placement Agent" means either Firstar or First Bank
acting in their capacity as a placement agent for the Commercial Paper
under a CP Placement Agreement.
"CP Placement Agreement" means the commercial paper
placement agreements, letter agreements or such other documents or
agreements between the Company and Firstar or First Bank, as the case may
be, setting forth the terms under which Firstar or First Bank, as the case
may be, will place Commercial Paper, as amended, revised, supplemented or
restated from time to time.
"Default" means any act, event, condition or omission
which, with the giving of notice or lapse of time, would constitute an
Event of Default if uncured or unremedied.
"Eligible Construction Costs" means, with respect to the
construction of a facility that upon completion will constitute Eligible
Leased Real Estate, all costs relating to acquiring, constructing,
designing, engineering and equipping the facility to be owned by the
Company, provided that Soft Costs shall not exceed 5% of total Eligible
Construction Costs.
"Eligible Construction Loan" means a Third Party Loan to
fund the purchase of land and the construction of a facility to be owned
and occupied by the borrower (which is not an Affiliate of the Company)
(a) which facility, upon completion, will be utilized by the borrower in
the ordinary course of its business, (b) with respect to which no default
has occurred under the loan documents evidencing such Third Party Loan and
(c) with respect to which the Company has granted the Agent a first
priority security interest in the underlying promissory note executed by
such borrower, an assignment of the mortgage securing such promissory note
and a security interest in or lien upon any other collateral related
thereto as required by the provisions of the Collateral Custodian
Agreement. Upon occupancy of such facility the Third Party Loan shall
become an Owner-Occupied Real Estate Loan.
"Eligible Current Asset Loan" means a Third Party Loan
secured solely by the accounts receivable and inventory of the borrower
(which is not an Affiliate of the Company) (a) with respect to which the
Company has a perfected, first priority security interest in such accounts
receivable and inventory, and all proceeds thereof, (b) with respect to
which no default has occurred under the loan documents evidencing such
Third Party Loan and (c) with respect to which the Company has granted the
Agent a first priority security interest in the promissory note executed
by such borrower, an assignment of the Company's security interest in the
accounts receivable, inventory and proceeds of the borrower, a uniform
commercial code financing statement evidencing such assignment and a
security interest in or lien upon any other related collateral as required
by the provisions of the Collateral Custodian Agreement.
"Eligible Leased Real Estate" means real property owned by
the Company and leased to a lessee (a) which is used by the lessee in the
conduct of its business activities and (b) with respect to which the
Company has provided the Collateral Custodian with the documents,
instruments and agreements described in section 3.3 of the Collateral
Custodian Agreement. The only Eligible Leased Real Estate with an
Affiliate of the Company as a tenant are (or will be) (a) the existing
lease of its principal executive office to InvestorsBank and (b) the
existing facility leased to Licensed Products, Inc.
"Eligible Owner-Occupied Real Estate Loan" means an Owner-
Occupied Real Estate Loan with respect to which the Company has provided
the Collateral Custodian with the documents, instruments and agreements
described in section 3.4 of the Collateral Custodian Agreement. The only
Owner-Occupied Real Estate Loans to an Affiliate of the Company which may
be an Eligible Owner-Occupied Real Estate Loan is a loan to Xxx Xxxxxxxxx
Original Dolls, Inc. in an amount not to exceed 80% of Appraised Value,
subject to a maximum of $2,500,000.
"Eligible Third Party Loans" means Eligible Construction
Loans, Eligible Current Asset Loans and Eligible Owner-Occupied Real
Estate Loans.
"Environmental Laws" means all federal, state and local
laws including statutes, regulations, ordinances, codes, rules and other
governmental restrictions and requirements relating to the discharge of
air pollutants, water pollutants or process waste water or otherwise
relating to the environment or hazardous substances including, but not
limited to, the Federal Solid Waste Disposal Act, the Federal Clean Air
Act, the Federal Clean Water Act, the Federal Resource Conservation and
Recovery Act of 1976, the Federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980, regulations of the Environmental
Protection Agency, regulations of the Nuclear Regulatory Commission and
regulations of any state department of natural resources or state
environmental protection agency now or at any time hereafter in effect.
"ERISA" means, at any date, the Employee Retirement Income
Security Act of 1974, and the regulations thereunder, all as the same
shall be in effect at such date.
"Established Value" means (a) in the case of an Eligible
Construction Loan, the lower of cost or Appraised Value of the real
property financed thereby, (b) in the case of Eligible Leased Real Estate,
the lesser of the Appraised Value or the net book value (determined in
accordance with GAAP) of such real property and (c) in the case of an
Eligible Owner-Occupied Real Estate Loan, the Appraised Value of the real
property securing such loan.
"Event of Default" means the occurrence of any of the
events described in section 7.1.
"Federal Funds Rate" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight, Federal
funds transactions with brokers of the Federal Reserve System, as
published for such day by the Federal Reserve Bank of New York in the
weekly statistical release designated as H.15(519), or any successor
publication, on the preceding Business Day opposite the caption "Federal
Funds Rate (Effective)", or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for such day on
such transactions received by the Agent from three Federal funds brokers
of recognized standing selected by it. In the case of a day which is not
a Business Day, the Federal Funds Rate for such day shall be the Federal
Funds Rate for the preceding Business Day.
"Firstar" means Firstar Bank Milwaukee, N.A., and its
successors.
"First Bank" means First Bank National Association, and its
successors.
"GAAP" means generally accepted accounting principles in
effect in the United States from time to time.
"Indebtedness" means (a) all indebtedness for borrowed
money created, incurred or assumed by a Person, (b) all obligations
issued, undertaken or assumed as the deferred purchase price of property
or services (other than trade payables entered into in the ordinary course
of business), (c) all non-contingent reimbursement or payment obligations
with respect to letters of credit and surety instruments, (d) all
obligations evidenced by notes, bonds, debentures or similar instruments,
(e) all indebtedness created or arising under conditional sale or other
title retention agreements, (f) Capitalized Leases, (g) indebtedness for
borrowed money secured by any mortgage, lien, pledge or security interest
on property of a Person even though it has not assumed or otherwise become
liable for the payment thereof and (h) a Person's obligations under Swap
Contracts.
"Interest Period" means, with respect to a LIBOR Rate Loan,
a period of one, two or three months commencing on (and including) a
Business Day selected by the Company pursuant to section 2.3(a) or 2.4(c)
of this Agreement and ending on (but excluding) the day which corresponds
numerically to such date one, two or three months thereafter (or, if such
month has no numerically corresponding date, on the last Business Day of
such month), provided that:
(a) if an Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall end on the
next following Business Day (unless such next following Business Day is in
a new calendar month in which case such Interest Period shall end on the
immediately preceding Business Day); and
(b) no Interest Period may end later than the
Maturity Date.
"Lease Portfolio Coverage Ratio" means the relationship,
expressed as a numerical ratio, between:
(a) an amount equal to the rental income received by the
Company's leasing division during the month preceding the date of
determination multiplied by 12; and
(b) the net book value of the properties owned by the
Company's leasing division;
all as determined in accordance with GAAP.
"Leased Real Estate Borrowing Base Amount" means an amount
equal to the lesser of:
(a) $20,000,000; or
(b) the sum of:
(i) in the case of Eligible Leased Real Estate which
is not a Nonperforming Lease, an amount equal to 80% of the Established
Value of such Eligible Leased Real Estate; and
(ii) in the case of Eligible Leased Real Estate which
is a Nonperforming Lease, an amount equal to 50% of the Established Value
of such Eligible Leased Real Estate.
"Leverage Ratio" means, on each date of determination, the
relationship, expressed as a numerical ratio, between (a) Total
Liabilities and (b) Capital Funds; all as determined for the Company in
accordance with GAAP.
"LIBOR Rate" means, with respect to a LIBOR Rate Loan for
the applicable Interest Period, the interest rate at which deposits in
United States dollars, in an amount approximately equal to the requested
LIBOR Rate Loan and having a maturity approximately equal to the requested
Interest Period, are offered by the Agent to prime banks in the London
interbank market at approximately 11 a.m. (London time) two Business Days
prior to the first day of such Interest Period. The LIBOR Rate determined
by the Agent shall, in the absence of manifest error, be conclusive.
"LIBOR Rate Loan" means a Revolving Loan bearing interest
at a rate determined by reference to the Adjusted LIBOR Rate.
"LIBOR Reserve Requirement" means, with respect to a LIBOR
Rate Loan for the applicable Interest Period, the percentage (expressed as
a decimal) equal to the maximum aggregate reserve requirements (including,
without limitation, any marginal, special, emergency and supplemental
reserves) established by the Board of Governors of the Federal Reserve
System for "eurocurrency liabilities" (as defined in Regulation D of such
Board), or for other liabilities which include deposits of the type used
in determining the LIBOR Rate, having a term approximately equal to the
applicable Interest Period.
"Loan Documents" means this Agreement, the Notes, the
Security Documents, the Collateral Custodian Agreement, the Parent
Guaranty and all other documents, instruments and agreements related to or
executed in connection with this Agreement and the transactions
contemplated hereby.
"Majority Lenders" means the Lenders holding in the
aggregate at least 66 2/3% of the aggregate outstanding principal balance
of the Revolving Loans or, if there are no Revolving Loans outstanding,
Lenders whose aggregate Percentage is at least 66 2/3%.
"Maturity Date" means April 30, 1999, or such earlier date
on which the Agent declares the Notes to be, or the Notes automatically
become, immediately due and payable pursuant to section 7.2 of this
Agreement.
"Multiemployer Plan" means any pension benefit plan subject
to Title IV of ERISA as defined in section 4001(a)(3) of ERISA, to which
the Parent, the Company or any member of the Controlled Group is required
to contribute on behalf of its employees.
"Net Earnings" means the excess of:
(a) all revenues and income derived from operations in the
ordinary course of business, including gains on the sale of Company-owned
real estate (excluding extraordinary gains and profits upon the
disposition of investments and fixed assets),
over
(b) all expenses and other proper charges against income
(including payment or provision for all applicable income and other taxes,
but excluding extraordinary losses and losses upon the disposition of
investments and fixed assets),
all as determined in accordance with GAAP, applied on a consistent basis
to the Company.
"Nonperforming Lease" means Eligible Leased Real Estate if
(a) the lease has been terminated, (b) the tenant has abandoned the
property or (c) the tenant is more than 90 days past due on a lease
payment. Unless otherwise agreed to by the Majority Lenders and notice
thereof , in the form of Exhibit J atteach hereto, has been sent to the
Company, a Nonperforming Lease shall continue as a Nonperforming Lease
until the property is leased to a new tenant and a new appraisal is
furnished to the Agent, even if the tenant fully cures all payment
defaults.
"Nonperforming Loans" means a Third Party Loan which the
Company has accelerated the maturity thereof or with respect to which the
borrower is more than 90 days past due on a payment of principal or
interest. Unless otherwise agreed to by the Majority Lenders and notice
thereof, in the form of Exhibit I attached hereto, has been sent to the
Company, a Third Party Loan which becomes a Nonperforming Loan shall
continue as a Nonperforming Loan even if the borrower subsequently cures
the payment default.
"Note" means a promissory note of the Company in the form
of Exhibit A, appropriately completed, evidencing Revolving Loans made by
a Lender to the Company.
"Notice of Borrowing" means a notice in substantially the
form of Exhibit B.
"Owner-Occupied Real Estate Loan" means a Third Party Loan
secured by a first priority mortgage lien on real property owned and
occupied by the borrower, an Affiliate of the borrower or other party
related to the borrower.
"Owner-Occupied Real Estate Loan Borrowing Base Amount"
means an amount equal to the sum of:
(a) in the case of an Eligible Owner-Occupied Real Estate
Loan which is not a Nonperforming Loan, an amount equal to the Applicable
Percentage of the lesser of [a] the outstanding principal balance of such
Eligible Owner-Occupied Real Estate Loan and [b] 64% of the Established
Value of the real property securing such Eligible Owner-Occupied Real
Estate Loan; plus
(b) in the case of an Eligible Owner-Occupied Real Estate
Loan which is a Nonperforming Loan, an amount equal to the Applicable
Percentage of the lesser of [a] the outstanding principal balance of such
Eligible Owner-Occupied Real Estate Loan and [b] 50% of the Established
Value of the real property securing such Eligible Owner-Occupied Real
Estate Loan;
provided, however, that the Owner-Occupied Real Estate Loan Borrowing Base
Amount shall be reduced, if and to the extent necessary, so that the
Applicable Percentage of the outstanding principal balances of Owner-
Occupied Real Estate Loans is not less than 110% of the Owner-Occupied
Real Estate Loan Borrowing Base Amount.
"Parent" means Bando XxXxxxxxxx Capital Corporation, a
Wisconsin corporation.
"Parent Guaranty" means a guaranty agreement in
substantially the form of Exhibit G.
"Percentage" means, for each Lender:
(a) with respect to the Revolving Loan Commitment of a
Lender, a percentage equal to such Lender's Revolving Loan Commitment
divided by the aggregate Revolving Loan Commitments of all Lenders; and
(b) with respect to the Revolving Loans outstanding at any
time, a percentage equal to the outstanding principal amount of Revolving
Loans made by such Lender divided by the aggregate outstanding principal
amount of Revolving Loans made by all Lenders;
and the Percentage of each Lender is set forth opposite its signature
hereto.
"Permitted Liens" means (a) security interests and liens
listed on Schedule 1 attached hereto, provided that the Indebtedness
secured thereby shall not be increased; (b) liens for taxes, assessments
or governmental charges not delinquent or being contested in good faith by
the Company for which adequate reserves are established and maintained in
accordance with GAAP; (c) construction lien claims not delinquent;
(d) liens or deposits in connection with worker's compensation or other
insurance or to secure the performance of bids, trade contracts (other
than for borrowed money), leases, public or statutory obligations, surety
or appeal bonds or other obligations of like nature incurred in the
ordinary course of business; (e) security interests and liens in favor of
the Agent for the benefit of the Lenders; (f) security interests and liens
in favor of a Lender provided that such security interests and liens are
subordinate to any security interests and liens granted by the Company in
favor of the Agent; (g) security interest and liens for Indebtedness
created, incurred or assumed by the Company after the date of this
Agreement and permitted under section 6.2(g); and (h) easements,
restrictions, minor title irregularities and similar matters which have no
material adverse effect as a practical matter upon the ownership or use of
its property by the Company.
"Permitted Swap Contract" means a Swap Contract between the
Company and a Lender (or any Affiliate of a Lender); provided that such
agreement is entered into in the ordinary course of business by the
Company for the purpose of mitigating the Company's risks with respect to
interest rate volitility and not for the purpose of speculation.
"Person" means any natural person, corporation, limited
liability company, joint venture, partnership, association, trust or other
entity or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" means any pension benefit plan subject to Title IV
of ERISA, including any Multiemployer Plan, maintained by the Parent, the
Company or any member of the Controlled Group or any such Plan to which
the Parent, the Company or any member of the Controlled Group is required
to contribute on behalf of its employees.
"Prime Rate" means the rate of interest announced by the
Agent from time to time as its prime rate. The Prime Rate may or may not
be the lowest interest rate charged by the Agent.
"Reportable Event" means a reportable event as that term is
defined in ERISA.
"Restricted Payments" means dividends or other
distributions by the Company based upon the stock of the Company (except
dividends payable solely in stock of the Company) and purchases,
redemptions and other acquisitions, direct or indirect, by the Company of
its stock.
"Revolving Loan" means an extension of credit made by a
Lender to the Company pursuant to section 2.1 of this Agreement.
"Revolving Loan Commitment" means the obligation of each
Lender to make Revolving Loans to the Company. The total Revolving Loan
Commitment of the Lenders is initially $50,000,000 and is subject to
reduction from time to time pursuant to section 2.6. The Revolving Loan
Commitment of each Lender is such Lender's Percentage of the total
Revolving Loan Commitment and the initial Revolving Loan Commitment of
each Lender in set forth opposite its signature hereto.
"Security Documents" means the documents described in
section 4.1(b) and any other document, instrument or agreement furnished
by the Company to the Agent which provides collateral for the obligations
of the Company under the Loan Documents.
"Soft Costs" means, with respect to an Eligible
Construction Loan, any loan fees, debt service costs, developer's fees,
including all contingencies, overhead expenses, administrative expenses
and profit, insurance premiums, survey expenses, surveyor's fees, title
fees and expenses, broker's fees and architect's fees and expenses.
"Subordinated Debt" means Indebtedness of the Company, the
payment of which is fully subordinated, in a manner satisfactory to the
Lenders, to the prior payment of the Notes.
"Subsidiary" means as of a particular date (a) any
corporation more than 50% of whose outstanding stock having ordinary
voting power for the election of directors shall at the time be owned or
controlled by the Company or by one of its Subsidiaries and (b) any
limited liability company more than 50% of whose outstanding ownership
interests shall at the time be owned or controlled by the Company or by
one of its Subsidiaries.
"Swap Contract" means an interest rate swap, cap, floor or
collar agreement, including any master agreement relating to or governing
any of the foregoing.
"Swing Line Loan" means a Revolving Loan made to the
Company by Firstar pursuant to Section 2.1(b). Swing Line Loans shall be
a subfacility of Firstar's Revolving Loan Commitment and thus, a
subfacility of the Lenders' total Revolving Loan Commitment.
"Third Party Loans" means commercial loans extended by the
Company to third parties and commercial loans extended by InvestorsBank
for which the promissory note evidencing the borrower's underlying
obligations and all collateral securing such obligations have been fully
assigned to the Company.
"Total Liabilities" means (a) all items which, in
accordance with GAAP, would be classified as liabilities on the balance
sheet of the Company, including all Capitalized Leases, and
(b) indebtedness for borrowed money secured by any mortgage, lien, pledge
or security interest on property of the Company even though it has not
assumed or otherwise become liable for the payment thereof.
"Type" means, with respect to any Revolving 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 date of this Agreement
to the Maturity Date, each Lender will make Revolving Loans to the
Company, subject to the terms and conditions hereof, in an amount equal to
such Lender's Percentage of the amount of Revolving Loans requested by the
Company on the applicable Borrowing Date, up to the maximum amount at any
time outstanding of such Lender's Revolving Loan Commitment; provided,
however, that the Lenders shall have no obligation to make Revolving Loans
to the Company if, after giving effect thereto, the sum of the aggregate
outstanding principal amount of Revolving Loans plus the outstanding
principal amount of Commercial Paper would exceed the lesser of the total
Revolving Loan Commitments or the Borrowing Base Amount. Within such
maximum amount Revolving Loans may be made, repaid and made again. The
Revolving Loans made by a Lender shall be evidenced by the Note payable to
the order of such Lender and shall be payable on the Maturity Date.
Although each Note shall be expressed to be payable in the amount of the
payee Lender's initial Revolving Loan Commitment, the Company shall be
obligated to pay only the amount of Revolving Loans actually disbursed to
or for the account of the Company by the payee Lender, together with
interest on the unpaid balance of the sums so disbursed, which remain
outstanding from time to time as shown on the records of the payee Lender.
The Revolving Loans made by the Lenders on a Borrowing Date shall be made
ratably in accordance with each Lender's Percentage.
(b) The parties agree that for ease of administration
and to avoid frequent transfers of funds, Firstar may at its option and
from time to time make Swing Line Loans to the Company without
proportionate loans by the other Lenders. Notwithstanding any provision
of this Agreement to the contrary:
(i) The aggregate outstanding principal amount
of all outstanding Swing Line Loans shall not exceed $2,500,000;
(ii) The Company may request a Swing Line Loan by
a telephonic request therefor to Firstar no later than 4 p.m., Milwaukee,
Wisconsin time on the requested Borrowing Date;
(iii) Swing Line Loans shall be evidenced by
the Revolving Note payable to the order of Firstar;
(iv) Swing Line Loans shall be Base Rate Loans;
and
(v) Swing Line Loans may be prepaid at any time
in whole or in part without premium or penalty and all payments of
principal and interest on Swing Line Loans shall be made to and retained
by Firstar.
Except as expressly set forth to the contrary in this
Agreement, Swing Line Loans shall be governed by the provisions of this
Agreement applicable to Revolving Loans.
During any period that Swing Line Loans are
outstanding, the Lenders agree that at any time upon the request of
Firstar, each Lender will make a Revolving Loan to the Company by
transferring to Firstar an amount equal to such Lender's Percentage of the
aggregate principal amount of Swing Line Loans then outstanding. Such
transfer shall be considered a Revolving Loan by that Lender to the
Company and a payment of the Swing Line Loans by the Company to Firstar.
If an Event of Default occurs while Swing Line Loans are outstanding, each
Lender agrees to purchase from Firstar a participation in such Swing Line
Loans in an amount equal to such Lender's Percentage of the then
outstanding principal amount of Swing Line Loans. The Company and Firstar
agree that the aggregate outstanding principal balance of Swing Line Loans
shall be reduced to $0 for at least one day each calendar week.
2.2 Interest Rate Options. Revolving Loans may be Base
Rate Loans or LIBOR Rate Loans, or a combination thereof. The Company
shall select the Type of Revolving Loan (and in the case of LIBOR Rate
Loans, the applicable Interest Period) in accordance with sections 2.3(a)
and 2.4(c). The 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 $500,000 and in integral
multiples of $100,000 above such minimum. After giving effect to any
advance under section 2.1 or conversion or continuation under section 2.4,
there may not be more than 10 different Interest Periods in effect.
2.3 Borrowing Procedure for Revolving Loans.
(a) The Company shall request Revolving Loans by
submitting a Notice of Borrowing to the Agent. The Notice of Borrowing
must be received by the Agent (i) in the case of LIBOR Rate Loans, not
later than 11 a.m., Milwaukee, Wisconsin time, on the date which is three
Business Days prior to the requested Borrowing Date (which must be a
Business Day) and (ii) in the case of Base Rate Loans, not later than 11
a.m., Milwaukee, Wisconsin time, on the requested Borrowing Date (which
must be a Business Day). Each Notice of Borrowing must specify the amount
of the requested Revolving Loans, the Type of requested Revolving Loans
and, if the Company requests LIBOR Rate Loans, the applicable Interest
Period. The aggregate amount of Revolving Loans made on each Borrowing
Date shall be in a minimum amount of $500,000 and in integral multiples of
$100,000 above such minimum. Each Notice of Borrowing shall be
irrevocable and shall constitute a certification by the Company that the
borrowing conditions specified in sections 4.2(b) and 4.2(c) will be
satisfied on the specified Borrowing Date. The Agent will promptly notify
the Lenders of the requested Revolving Loans. On or before 2 p.m.,
Milwaukee, Wisconsin time, on the specified Borrowing Date each Lender
shall deposit its Percentage of the requested Revolving Loans with the
Agent in immediately available funds. The Agent shall, on or before
3 p.m., Milwaukee, Wisconsin time, notify the Company if the Agent has not
received each Lender's deposit of its Percentage of the requested
Revolving Loan. On or before 3 p.m., Milwaukee, Wisconsin time, provided
the Agent has received each Lender's Percentage of the requested Revolving
Loan and upon fulfillment of the applicable borrowing conditions, the
Agent shall deposit the Revolving Loans in the Company's account
maintained with the Agent.
(b) Unless the Agent shall have been notified by
telephone, confirmed promptly thereafter in writing, by a Lender not later
than 2 p.m., Milwaukee, Wisconsin time, on a Borrowing Date that such
Lender will not make available to the Agent such Lender's Percentage of
the requested Revolving Loans, the Agent may assume that such Lender has
made such amount available to the Agent and, in reliance upon such
assumption, the Agent may (but shall not be required) to make available to
the Company on such Borrowing Date a corresponding amount. If and to the
extent that such Lender shall not have so made such amount available to
the Agent and the Agent in such circumstances has made such amount
available to the Company, such Lender shall on the Business Day following
the Borrowing Date make such amount, together with interest at the Federal
Funds Rate for each day during such period, available to the Agent. If
such amount is so made available, such payment to the Agent shall
constitute such Lender's Revolving Loan on the Borrowing Date for all
purposes of this Agreement. If such amount is not made available to the
Agent on the Business Day following the Borrowing Date, the Agent shall
notify the Company of such failure to fund and, upon demand by the Agent,
the Company shall pay such amount to the Agent for the Agent's account
together with interest thereon, for each day from the date the Agent made
such amount available to the Company to the date such amount is repaid to
the Agent, at the interest rate applicable to such amount as selected by
the Company on the Borrowing Date for such amount.
(c) The failure of any Lender to make a Revolving
Loan shall not relieve any other Lender of its obligation hereunder to
make a Revolving Loan on the applicable Borrowing Date, but no Lender
shall be responsible for the failure of any other Lender to make the
Revolving Loan to be made by such other Lender on the applicable Borrowing
Date.
2.4 Continuation and Conversion Procedure.
(a) Base Rate Loans shall continue as Base Rate Loans
unless and until converted into LIBOR Rate Loans. The Company may elect
from time to time, subject to the terms and conditions of this Agreement,
to convert all or any part of the outstanding Base Rate Loans into LIBOR
Rate Loans.
(b) At the end of the applicable Interest Period for
LIBOR Rate Loans, such LIBOR Rate Loans shall be automatically converted
into Base Rate Loans unless the Company shall have given the Agent notice
in accordance with section 2.4(c) requesting that, at the end of such
Interest Period, such LIBOR Rate Loans continue as LIBOR Rate Loans.
(c) The Company shall deliver a Conversion/
Continuation Notice to the Agent for each conversion of Base Rate Loans or
continuation of LIBOR Rate Loans. The Conversion/Continuation Notice must
be received by the Agent not later than 11 a.m., Milwaukee time, at least
three Business Days prior to the date of the requested conversion or
continuation and must specify (i) the requested date (which shall be a
Business Day) of such conversion or continuation, (ii) the amount of
Revolving Loans to be converted or continued and (iii) the duration of the
Interest Period applicable thereto.
(d) The Agent will promptly notify each Lender of its
receipt of a Conversion/Continuation Notice or, if no notice is timely
provided by the Company, the Agent will promptly notify each Lender of the
details of any automatic conversion. All conversions and continuations
shall be made ratably according to the respective outstanding principal
amounts of the Revolving Loans with respect to which the notice was given.
(e) Notwithstanding anything to the contrary
contained in this section, Revolving Loans may not be converted into or
continued as LIBOR Rate Loans when any Default or Event of Default has
occurred and is continuing.
2.5 Commitment Fee. As consideration for the Lenders'
Revolving Loan Commitments, the Company will pay to the Agent, for the
account of the Lenders, on the last Business Day of each quarter
commencing March 31, 1998 and on the Maturity Date, a commitment fee equal
to 1/2 of 1% per year of the daily average unused amount of the Revolving
Loan Commitment during the preceding quarter or other applicable period;
provided that for purposes of computing the commitment fee due on March
31, 1998, the applicable period shall be the date of this Agreement
through March 31, 1998. Commitment fees shall be calculated for the
actual number of days elapsed on the basis of a 360-day year.
2.6 Reduction or Termination of Revolving Loan Commitment.
The Company may, upon three Business Days' prior written notice to the
Agent, permanently reduce the amount of the total Revolving Loan
Commitment; provided that (i) no such reduction shall reduce the amount of
the total Revolving Loan Commitment to an amount less than the sum of the
aggregate unpaid principal balances of the Notes on the date of such
reduction plus the aggregate outstanding principal amount of Commercial
Paper on such date, (ii) the Revolving Loan Commitments may not be
terminated by the Company unless there is no Commercial Paper outstanding
and (iii) upon any termination of the Revolving Loan Commitments the
Company shall pay to the Agent, for the account of the Lenders, the
outstanding principal balance of the Revolving Loans, all accrued interest
and all fees, expenses and other amounts payable under this Agreement as
of the termination date. Each reduction in the total Revolving Loan
Commitment shall be in a minimum amount of $5,000,000 and in integral
multiples of $1,000,000 above such minimum. Each reduction in the total
Revolving Loan Commitment shall ratably reduce each Lender's Revolving
Loan Commitment.
2.7 Interest Rates.
(a) The unpaid principal balance of Base Rate Loans
outstanding from time to time shall bear interest prior to the Maturity
Date at an annual rate equal to the Base Rate plus the Applicable Margin
for Base Rate Loans, and such rate shall change on each day on which the
Base Rate changes. Accrued interest shall be due on the first Business
Day of each month, commencing March 2,1998, and on the Maturity Date.
(b) The unpaid principal balance of each LIBOR Rate
Loan shall bear interest during the applicable Interest Period at the
corresponding Adjusted LIBOR Rate plus the Applicable Margin for Libor
Rate Loans. Accrued interest for each LIBOR Rate Loan shall be due on the
last day of the applicable Interest Period.
(c) Notwithstanding the provisions of sections 2.7(a)
and 2.7(b) above, upon the occurrence and during the continuance of an
Event of Default, the unpaid principal balance of each Note shall, upon
notice from the Agent to the Company, bear interest at an annual rate
equal to the Base Rate plus two percentage points (the "Default Rate"),
payable upon demand. On and after the Maturity Date, the unpaid principal
balance of the Notes and all accrued interest thereon shall bear interest
at the Default Rate and shall be payable upon demand.
(d) Interest shall be calculated for the actual
number of days elapsed on the basis of a 360-day year.
2.8 Payments. All payments of principal and interest on
the Notes and of all fees and other amounts due hereunder shall be made at
the office of the Agent, for the account of the Lenders, in immediately
available funds not later than 2 p.m., Milwaukee, Wisconsin time, on the
date due; funds received after that time shall be deemed to have been
received on the next Business Day. Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
be made on the next succeeding Business Day and such extension of time
shall be included in computing interest and fees, if any, in connection
with such payment. The Agent may charge any account of the Company at the
Agent or at any Lender for any payment due under the Notes, or any fee or
expense payable hereunder, on or after the date due. Except as otherwise
provided in section 2.12(b), the Agent shall forward to each Lender,
promptly after receipt, such Lender's Percentage of such payments received
by the Agent.
2.9 Prepayments. The Company shall immediately and
without demand by the Agent or any Lender make a mandatory prepayment of
the Notes if and to the extent that the sum of the aggregate outstanding
principal balances of the Notes plus the aggregate outstanding principal
amount of the Commercial Paper exceeds the Borrowing Base Amount. The
Company may at any time repay, without premium or penalty, Base Rate Loans
in a minimum amount of $500,000 (or, if less, all outstanding Base Rate
Loans). The Company may prepay LIBOR Rate Loans (in a minimum amount of
$500,000 and in integral multiples of $100,000 above such minimum) at any
time; provided, that, in the event of a prepayment of LIBOR Rate Loans on
any day other than the last day of the applicable Interest Period, the
Company shall also pay to the Bank on the prepayment date the amounts
referred to in section 2.10(c).
The Company will give the Agent notice of any
optional prepayment of the Revolving Notes not later than 1 p.m.,
Milwaukee, Wisconsin time, on the Business Day prior to the prepayment
date, specifying the prepayment date (which must be a Business Day) and
the amount to be prepaid. The amount of such prepayment and any amounts
related thereto shall be due and payable on the specified prepayment date.
2.10 Additional LIBOR Rate Loan Provisions
(a) If any Lender determines that the making or
maintaining of a LIBOR Rate Loan would violate any applicable law, rule
regulation or directive, whether or not having the force of law, then the
obligation of the Lenders to make or continue LIBOR Rate Loans, or to
convert Base Rate Loans into LIBOR Rate Loans, shall be suspended until
the Agent notifies the Company that the circumstances causing such
suspension no longer exist. During any such period, all LIBOR Rate Loans
shall automatically convert into Base Rate Loans at the end of the
applicable Interest Period or sooner if required by law.
(b) If the Agent is unable to determine the LIBOR
Rate in respect of a requested Interest Period or the Majority Lenders are
unable to obtain deposits of United States dollars in the London interbank
market in the applicable amounts and for the requested Interest Period,
then, upon notice from the Agent to the Company, the obligation of the
Lenders to make or continue LIBOR Rate Loans, or to convert Base Rate
Loans into LIBOR Rate Loans, shall be suspended until the Agent notifies
the Company that the circumstances causing such suspension no longer
exist.
(c) If any Lender shall incur any loss or expense
(including any loss or expense incurred by reason of a liquidation or
redeployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of a LIBOR Rate Loan, or to convert any
portion of a Base Rate Loan into a LIBOR Rate Loan) as a result of (in
each case other than as a result of the occurrence of an event described
in section 2.10(b) hereof): (i) any conversion or repayment or prepayment
of the principal amount of LIBOR Rate Loan on a date other than the last
day of the Interest Period applicable thereto (whether as a result of
acceleration, prepayment or otherwise); (ii) any Revolving Loan not being
made as a LIBOR Rate Loan in accordance with the Notice of Borrowing
therefore; or (iii) any Revolving Loan not being continued as, or
converted into, a LIBOR Rate Loan in accordance with the Continuation/
Conversion Notice therefore, then, upon written notice from such Lender to
the Company, the Company shall, within five days of its receipt thereof,
pay to such Lender such amount as will (in the reasonable determination of
such Lender) reimburse such Lender for such loss or expense. Such written
notice (which shall include calculations in reasonable detail) shall, in
the absence of manifest error, be conclusive and binding on the Company.
2.11 Setoff. Each Lender shall, upon the occurrence and
during the continuance of an Event of Default, have the right to apply to
the payment of the Note held by such Lender (whether or not then due) any
and all balances, credits, deposits, accounts or monies of the Company
then or thereafter maintained with such Lender. Each Lender agrees to
promptly notify the Company and the Agent after any such setoff and
application made by such Lender; provided, however, that the failure to
give such notice shall not affect the validity of such setoff and
application.
2.12 Pro Rata Treatment; Sharing of Payments.
(a) Except as otherwise provided in this Agreement,
all payments of principal, interest and fees made by the Company shall be
distributed pro rata to the Lenders according to their respective
Percentages. If any Lender shall obtain any payment or other recovery
(whether voluntary, involuntary, by application of setoff or otherwise) in
excess of its pro rata share of payments then or therewith obtained by all
Lenders, such Lender shall immediately purchase, without recourse and for
cash, from the other Lenders, such participations in the Notes of such
other Lenders so that each Lender shall thereafter have a percentage
interest in all of such obligations equal to such Lender's Percentage;
provided, however, that if any payment so received shall be recovered in
whole or in part from such purchasing Lender, the purchase shall be
rescinded and the purchase price restored to the extent of any such
recovery, but without interest. The Company agrees that any Lender so
purchasing a participation from another Lender pursuant to this section
may, to the fullest extent permitted by law, exercise all of its rights of
payment (including its right of setoff) with respect to such participation
as if such Lender were the direct creditor of the Company in the amount of
such participation.
(b) Notwithstanding anything to the contrary
contained in this Credit Agreement, any Lender that fails to make
available to the Agent its pro rata share of any Revolving Loan as, when
and to the full extent required by the provisions of this Credit
Agreement, shall be deemed delinquent (a "Delinquent Lender") until such
time as such delinquency is satisfied. A Delinquent Lender shall be
deemed to have assigned any and all payments due to it from the Company to
the Agent and the nondelinquent Lenders for application to, and reduction
of, their respective pro rata shares of all outstanding Revolving Loans.
The Delinquent Lender hereby authorizes the Agent to (i) retain such
payments to the extent the Agent funded such delinquency or (ii)
distribute such payments to the nondeliquent Lenders in proportion to
their respective pro rata shares of all outstanding Revolving Loans to the
extent the nondelinquent Lenders funded such delinquency. A Delinquent
Lender shall be deemed to have satisfied in full a delinquency when and
if, as a result of the application of the assigned payments to the Agent
and/or the nondelinquent Lenders, all advances funded by the Agent have
been repaid in full and the Lenders' respective pro rata shares of all
outstanding Revolving Loans have returned to their respective Percentages.
2.13 Capital Adequacy. As used in this section, the term
"Regulatory Change" means any change enacted or issued after the date of
this Agreement of any (or the adoption after the date of this Agreement of
any new) federal or state law, regulation, interpretation, direction,
policy or guideline, or any court decision, which affects (or, in the case
of a court decision would, if the decision were applicable to any Lender,
affect) the treatment of any Revolving Loan or any commitment of any
Lender hereunder as an asset or other item included for the purpose of
calculating the appropriate amount of capital to be maintained by such
Lender or any corporation controlling such Lender. If such Regulatory
Change has the effect of reducing the rate of return on such Lender's or
such corporation's capital as a consequence of the Revolving Loans or
commitments of such Lender hereunder to a level below that which such
Lender or such corporation could have achieved but for such Regulatory
Change (taking into account such Lender's or such corporation's policies
with respect to capital adequacy) by an amount deemed in good faith by
such Lender to be material, then from time to time following notice by
such Lender to the Company of such Regulatory Change, within ten days
after demand from such Lender, the Company shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such
corporation, as the case may be, for such reduction. Such notice (which
shall include calculations in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on the Company.
2.14 Yield Protection. If any law or any governmental
rule, regulation, policy, guideline or directive (whether or not having
the force of law), or any interpretation thereof, or the compliance of any
Lender therewith,
(a) subjects any Lender to any tax, duty, charge or
withholding on or from payments due from the Company (excluding federal
taxation of the overall net income of any Lender and any such tax, duty,
charge or withholding in effect as of the date of this Agreement), or
changes the basis of taxation of payments to any Lender in respect of its
Revolving Loans or other amounts due it hereunder (excluding federal
taxation of the overall net income of any Lender);
(b) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account of, or
credit extended by, any lender (other than reserves and assessments taken
into account in determining the interest rate applicable to LIBOR Rate
Loans) with respect to its Revolving Loans; or
(c) imposes any other condition the result of which
is to increase the cost to any Lender of making, funding or maintaining
the Revolving Loans or reduces any amount received by any Lender in
connection with the Revolving Loans or requires any Lender to make any
payment calculated by reference to the amount of Revolving Loans held or
interest received by it, by an amount deemed material by such Lender;
then, within 15 days of demand by such Lender, the Company shall pay such
Lender that portion of such increased expense incurred or reduction in an
amount received which such Lender determines is attributable thereto. Such
notice (which shall include calculations in reasonable detail) shall, in
the absence of manifest error, be conclusive and binding on the Company.
2.15 Other Fees. In addition to the other fees described
herein, the Company shall pay to Firstar the arrangement fees and annual
agency fees described in the fee letter dated December 19, 1997 from
Firstar to the Company (the "Fee Letter").
3. Representations and Warranties. In order to induce the
Lenders to make the Revolving Loans, the Company represents and warrants
to the Lenders that:
3.1 Organization; Subsidiaries; Corporate Power; REIT
Status. The Company is a corporation validly existing under the laws of
the State of Wisconsin. The Company is duly qualified as a foreign
corporation to do business and is in good standing in every jurisdiction
in which the nature of its business or the ownership of its properties
requires such qualification and in which the failure to so qualify would
materially adversely affect the business operations or financial condition
of the Company. The Company has no Subsidiaries. The Company has the
corporate power to own its properties and carry on its business as
currently being conducted. The Company has elected, and is duly
qualified, to operate as a "real estate investment trust" ("REIT")
pursuant to section 856 of the Code and applicable regulations issued by
the Internal Revenue Service. The Company has no knowledge of any facts
or circumstances that would disqualify the Company as a REIT and has no
knowledge of any pending or threatened action by the Internal Revenue
Service to revoke or terminate the Company's election to operate, or
status, as a REIT.
3.2 Authorization and Binding Effect. The execution and
delivery by the Company of the Loan Documents to which it is a party, and
the performance by the Company of its obligations thereunder, are within
its corporate power, have been duly authorized by proper corporate action
on the part of the Company, are not in violation of any existing law, rule
or regulation of any governmental agency or authority, any order or
decision of any court, the Articles of Incorporation or By-Laws of the
Company or the terms of any agreement, restriction or undertaking to which
the Company is a party or by which it is bound, and do not require the
approval or consent of the shareholders of the Company, any governmental
body, agency or authority or any other person or entity. The Loan
Documents to which the Company is a party, when executed and delivered,
will constitute the valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by
bankruptcy, insolvency or similar laws of general application affecting
the enforcement of creditors' rights and except to the extent that general
principles of equity might affect the specific enforcement of such Loan
Documents.
3.3 Financial Statements. The Company has furnished to
the Lenders (a) the consolidated balance sheet of the Parent and its
consolidated subsidiaries as of December 31, 1996, and related statements
of income, retained earnings and cash flows for the year ended on that
date, certified by Price Waterhouse LLP and (b) the unconsolidated balance
sheet of the Company dated November 30, 1997 and related statements of
income and cash flows for the period ended on such date, prepared by the
Company. Such financial statements were prepared in accordance with GAAP
consistently applied throughout the periods involved, are correct and
complete and fairly present the consolidated financial condition of the
Parent and its subsidiaries of the Company, respectively, as of such dates
and the results of their operations for the periods ended on such dates,
subject, in the case of the interim statements, to normal year-end
adjustments. There has been no material adverse change in the condition
or prospects of the Parent or its consolidated subsidiaries, financial or
otherwise, since the date of the most recent financial statement furnished
to the Lenders.
3.4 Litigation. Except for the matters described on
Schedule 3.4, there is no litigation or administrative proceeding pending
or, to the knowledge of the Company, threatened against or affecting the
Company or the properties of the Company which if determined adversely
would have a material adverse effect upon the business, financial
condition or properties of the Company.
3.5 Restricted Payments. The Company has not, since the
date of the most recent financial statements referred to in section 3.3,
made any Restricted Payments except for Restricted Payments permitted
under section 6.1.
3.6 Indebtedness; No Default. The Company has no
outstanding Indebtedness or Contingent Obligations, except those permitted
under sections 6.2 and 6.3. There exists no default nor has any act or
omission occurred which, with the giving of notice or the passage of time,
would constitute a default under the provisions of (a) any instrument
evidencing such Indebtedness or Contingent Obligation or any agreement
relating thereto or (b) any other agreement or instrument to which the
Company is a party and which is material to the financial condition,
business operations or prospects of the Company.
3.7 Ownership of Properties; Liens and Encumbrances. The
Company has good and marketable title to all property, real and personal,
reflected on the most recent financial statement of the Company furnished
to the Lenders, and all property purported to have been acquired since the
date of such financial statement, except property sold or otherwise
disposed of in the ordinary course of business subsequent to such date;
and all such property is free of any lien, security interest, mortgage,
encumbrance or charge of any kind or any agreement not to grant a security
interest, mortgage or lien, except Permitted Liens. All owned and leased
buildings and equipment of the Company are in good condition, repair and
working order (reasonable wear and tear excepted) and, to the Company's
knowledge, conform in all material respects to all applicable laws,
ordinances and regulations.
3.8 Tax Returns Filed. The Parent and the Company have
filed when due all federal and state income and other tax returns which
are required to be filed. The Company has paid or made provision for the
payment of all taxes shown on such returns, and on all assessments
received by it to the extent that such taxes or assessments have become
due, except any such taxes or assessments which are being contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP have been established. The Company has no knowledge
of any liabilities which may be asserted against it upon audit of its
federal or state tax returns.
3.9 Margin Stock. The Company will not use, directly or
indirectly, any part of the proceeds of any Note for the purpose of
purchasing or carrying, or to extend credit to others for the purpose of
purchasing or carrying, any margin stock within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, or
any amendments thereto. The Company is not engaged principally, or as one
of its important activities, in the business of extending credit for the
purpose of purchasing or carrying margin stock.
3.10 Investment Company. The Company is not an "investment
company" or a company controlled by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
3.11 ERISA Liabilities. The Company has no knowledge of
the occurrence of any event with respect to any Plan which could result in
a liability of the Company or any member of the Controlled Group to any
Plan, the Internal Revenue Service or to the Pension Benefit Guaranty
Corporation other than the payment of contributions in the normal course
or premiums (but not a late payment charge) pursuant to section 4007 of
ERISA. With respect to any Plan there is no (a) accumulated funding
deficiency within the meaning of section 412(a) of the Code;
(b) nondeductible contribution to any Plan within the meaning of section
4972 of the Code; (c) excess contribution within the meaning of section
4979(c) of the Code which would result in tax under section 4979(a) of the
Code; (d) prohibited transaction within the meaning of ERISA section 406
which is not exempt under ERISA section 408; (e) failure to make required
contributions to any Multiemployer Plan; or (f) withdrawal or partial
withdrawal from any Multiemployer Plan within the meaning of ERISA
sections 4203 and 4205.
3.12 No Burdensome Agreements. The Company is not a party
to or bound by any agreement, instrument or undertaking, or subject to any
other restriction (a) which materially adversely affects, or is likely in
the future to so affect, the property, financial condition or business
operations of the Company or (b) under or pursuant to which the Company is
or will be required to grant (or under which any other Person may obtain)
a security interest or lien upon any of its property (other than a
Permitted Lien), either upon demand or upon the fulfillment of a
condition, with or without demand.
3.13 Trademarks, Etc. The Company possesses adequate
trademarks, trade names, copyrights, patents, permits, service marks and
licenses, or rights thereto, for the present and planned future conduct of
their respective businesses substantially as now conducted, without any
known conflict with the rights of others which would result in a material
adverse effect on the Company.
3.14 Dump Sites. With respect to the period during which
the Company owned or occupied its real estate, and to the Company's
knowledge after reasonable investigation, with respect to the time before
the Company owned or occupied its real estate, no person or entity has
caused or permitted materials to be stored, deposited, treated, recycled
or disposed of on, under or at any real estate owned or occupied by the
Company, which materials, if known to be present, would require cleanup,
removal or some other remedial action under Environmental Laws.
3.15 Tanks. There are not now, nor, to the Company's
knowledge after reasonable investigation, have there ever been tanks or
other facilities on, under, or at any real estate owned or occupied by the
Company which contained materials which, if known to be present in soils
or ground water, would require cleanup, removal or some other remedial
action under Environmental Laws.
3.16 Other Environmental Conditions. There are no
conditions existing which would subject the Company to damages, penalties,
injunctive relief or cleanup costs under any Environmental Laws or which
require or are likely to require cleanup, removal, remedial action or
other response pursuant to Environmental Laws by the Company.
3.17 Changes in Laws. To the Company's knowledge after
reasonable investigation, there are no proposed or pending changes in
Environmental Laws that would adversely affect the Company.
3.18 Environmental Judgments, Decrees and Orders. The
Company is not subject to any judgment, decree, order or citation related
to or arising out of Environmental Laws. The Company has not been named
as a potentially responsible party by a governmental body or agency in a
matter arising under any Environmental Law.
3.19 Environmental Permits and Licenses. The Company and
each Subsidiary has all permits, licenses and approvals required under
Environmental Laws.
3.20 Year 2000. Except as set forth on Schedule 3.20
attached hereto, the information technology systems used by the company in
its business operations accurately process date/time data (including
without limitation calculating, comparing and sequencing) from, into and
between the twentieth and twenty-first centuries, the year 1999 and 2000
and leap year calculations.
3.21 Accuracy of Information. All information furnished by
the Company to the Lenders is true, correct and complete in all material
respects as of the date furnished and does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make such information not misleading.
4. Conditions for Borrowing. The Lenders' obligations to make
Revolving Loans is subject to the satisfaction, on or before the following
Borrowing Dates, of the following conditions:
4.1 On or Before the Closing Date. The Agent shall have
received the following, all in form, detail and content satisfactory to
the Lenders:
(a) Notes. The Notes, duly executed by the Company.
(b) Security Documents.
(i) a security agreement, granting the Agent,
for the benefit of the Lenders, a security interest in all of the personal
property of the Company;
(ii) all financing statements required to perfect
the security interests granted to the Agent by the Company; and
(iii) a collateral assignment of deposit
accounts, assigning to the Agent, for the benefit of the Lenders, the
Company's deposit accounts at InvestorsBank.
Each of the Security Documents shall be duly executed
by the Company.
(c) Collateral Custodian Agreement. The Collateral
Custodian Agreement, duly executed by the parties thereto.
(d) Parent Guaranty. The Parent Guaranty, duly
executed by the Parent.
(e) Amendment to Master Note Purchase Agreement. An
amendment to the Master Note Purchase Agreement dated as of January 1,
1997 among the State of Wisconsin Investment Board, the Company and the
Parent.
(f) Certified Articles of Incorporation. A copy of
the Articles of Incorporation of the Company and of the Parent, certified
as of a recent date by the Wisconsin Department of Financial Institutions.
(g) Certificates of Status and Good Standing.
Certificates of status and good standing with respect to the Company and
the Parent, issued as of a recent date by the Secretary of State (or
comparable governmental authority) of each state in which the Company or
the Parent is incorporated or is qualified to transact business as a
foreign corporation.
(h) Closing Certificate of the Company. Copies,
certified by the Secretary of the Company to be true and correct and in
full force and effect on the Closing Date, of (i) the By-Laws of the
Company; (ii) resolutions of the Board of Directors of the Company
authorizing the execution and delivery of the Loan Documents to which the
Company is a party; and (iii) a statement containing the names and titles
of the officer or officers of the Company authorized to sign such Loan
Documents, together with true signatures of such officers.
(i) Closing Certificate of the Parent. Copies,
certified by the Secretary of the Parent to be true and correct and in
full force and effect on the Closing Date, of (i) the By-Laws of the
Parent; (ii) resolutions of the Board of Directors of the Parent
authorizing the execution and delivery of the Loan Documents to which the
Parent is a party; and (iii) a statement containing the names and titles
of the officer or officers of the Parent authorized to sign such Loan
Documents, together with true signatures of such officers.
(j) 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.
(k) Borrowing Base Certificate. A completed
Borrowing Base Certificate as of the Closing Date.
(l) No Default Certificate. The representations and
warranties contained in section 3 hereof and in the other Loan Documents
shall be true and correct on and as of the Closing Date; there shall exist
on the Closing Date no Default or Event of Default; and the Lenders shall
have received a certificate to those effects, signed by the President of
the Company.
(m) Opinion of Counsel. An opinion from Xxxxx &
Xxxxxxx, counsel to the Company, in the form of Exhibit F attached hereto.
(n) 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.
(o) Fees. The closing fees set forth in the Fee
Letter.
4.2 On or Before Each Subsequent Borrowing Date:
(a) Borrowing Procedure. The Company shall have
complied with the borrowing procedure specified in section 2.3.
(b) Representations and Warranties True and Correct.
The representations and warranties contained in section 3 hereof and in
the other Loan Documents shall be true and correct on and as of the
relevant Borrowing Date except (i) that the representations and warranties
contained in section 3.3 shall apply to the most recent financial
statements delivered pursuant to section 5.1 of this Agreement and
section 8(b) of the Parent Guaranty and (ii) for changes contemplated or
permitted by this Agreement.
(c) No Default. There shall exist on that Borrowing
Date no Default or Event of Default.
(d) Proceedings and Documentation. The Lenders shall
have received such instruments and other documents as they may reasonably
request in connection with the making of such Revolving Loans, and all
such instruments and documents shall be in form and content satisfactory
to the Lenders.
5. Affirmative Covenants. The Company covenants that it will,
until the Lenders' Revolving Loan Commitment has terminated or expired and
the Notes, and all fees and expenses payable hereunder, have been paid in
full:
5.1 Monthly Financial Statements and Reports. Furnish to
the Agent within 30 days after the end of each month a copy for each
Lender of a balance sheet of the Company as of the end of such month and a
related statement of income for the period from the beginning of the
fiscal year to the end of such month, prepared in accordance with GAAP,
subject to normal year-end adjustments. Such monthly financial statements
shall be accompanied by (a) a Borrowing Base Certificate as of the last
day of such month and (b) a Compliance Certificate as of the last day of
such month.
5.2 Other Financial Information. Furnish to the Agent,
(a) immediately upon any increase in the Company's outstanding Commercial
Paper obligations, a notice setting forth the then outstanding balance of
such Commercial Paper obligations, and (b) as soon as available, copies
for each Lender of such other financial information as any Lender may from
time to time reasonably request.
5.3 Books and Records; Inspection. Keep proper, complete
and accurate books of record and account and permit any representative of
the Agent or any Lender to visit and inspect any of the properties and
examine and copy any of the books and records of the Company at any
reasonable time and as often as may reasonably be desired. Without
limiting the generality of the foregoing, the Company agrees to permit a
third party auditor selected by the Agent, at the expense of the Company,
to conduct on an annual basis an audit of all Third Party Loans, the scope
and timing of which audit are more particularly described in that certain
letter dated March 11, 1998 from the Agent to the Company.
5.4 Insurance. Maintain insurance coverage as may be
required by law or the Security Documents but in any event not less than
insurance coverage, in the forms, amounts and with companies, which would
be carried by prudent management in connection with similar properties and
businesses. Without limiting the foregoing, the Company will (a) keep all
its physical property insured against fire and extended coverage risks in
amounts and with deductibles at least equal to those generally maintained
by businesses engaged in similar activities in similar geographic areas;
(b) maintain all such worker's compensation and similar insurance as may
be required by law; and (c) maintain, in amounts and with deductibles at
least equal to those generally maintained by businesses engaged in similar
activities in similar geographic areas, general public liability insurance
against claims for bodily injury, death or property damage occurring on,
in or about the properties of the Company and insurance covering the
Company's risk of loss if tenant fails to maintain required insurance.
5.5 Condition of Property. Keep its properties (whether
owned or leased) in good condition, repair and working order (reasonable
wear and tear excepted).
5.6 Payment of Taxes. Pay and discharge all lawful taxes,
assessments and governmental charges upon it or against its properties
prior to the date on which penalties are attached thereto, unless and to
the extent only that the same shall be contested in good faith and by
appropriate proceedings by the Company and appropriate reserves with
respect thereto are established and maintained in accordance with GAAP.
5.7 Compliance with Law. Do all things necessary to
(a) maintain its corporate existence in its state of incorporation and
maintain its qualification as a foreign corporation in any other state
where the ownership of property or the conduct of business make
qualification necessary and where the failure to so qualify would have a
material adverse effect upon its business, operations or financial
condition, (b) preserve and keep in full force and effect its rights and
franchises necessary to continue its business and (c) comply with all
applicable laws, regulations and ordinances, including all applicable
Environmental Laws, except those being contested in good faith and
involving no possibility of criminal liability.
5.8 ERISA Certificate. Comply with all applicable
requirements of ERISA for each Plan and furnish to the Agent, as soon as
possible and in any event within 30 days after the Company shall have
obtained knowledge that a Reportable Event has occurred with respect to
any Plan, a certificate of an officer of the Company setting forth the
details as to such Reportable Event and the action which the Company
proposes to take with respect thereto, and a copy of each notice of a
Reportable Event sent to the Pension Benefit Guaranty Corporation by the
Company and, with respect to a Multiemployer Plan, furnish to the Agent as
soon as possible after the Company receives notice or obtains knowledge
that the Company or any member of the Controlled Group may be subject to
withdrawal liability, or required to post a bond to avoid such liability,
to a Multiemployer Plan, a certificate of an officer of the Company
setting forth the details as to such event and the actions which the
Company plans to take with respect thereto.
5.9 Compliance with Other Loan Documents. Timely comply
with all of its obligations under the other Loan Documents.
5.10 Notice of Default or Claimed Default. Furnish to the
Agent (a) immediately upon becoming aware of any Default or Event of
Default, a written notice specifying the nature and period of existence
thereof and what action the Company is taking or proposes to take with
respect thereto; (b) immediately upon becoming aware that the holder of
any other Indebtedness issued or assumed by the Company, or the lessor
under any lease as to which the Company is the lessee, has given notice or
has taken any action with respect to a claimed default thereunder, or
under any agreement under which any such Indebtedness was issued or
secured, a written notice specifying the notice given or action taken, the
nature of the claimed default and what action the Company is taking or
proposes to take with respect thereto; (c) immediately upon receipt,
copies of any correspondence, notice, pleading, citation, indictment,
complaint, order, decree or other document from any source asserting or
alleging a circumstance or condition which requires or may require a
financial contribution by the Company or a cleanup, removal, remedial
action or other response by or on the part of the Company under
Environmental Laws or which seeks damages or civil, criminal or punitive
penalties from the Company for an alleged violation of Environmental Laws;
and (d) written notice of any condition or event which would make the
warranties contained in section 3 inaccurate, as soon as the Company
becomes aware of such condition or event.
5.11 Deposit Accounts. The Company shall maintain all of
its primary operating and investment accounts at a Lender or at
InvestorsBank. The Company shall, promptly upon request by the Agent,
cause InvestorsBank to report to the Agent the individual and aggregate
balances of all the Company's deposit and investment accounts maintained
at InvestorsBank, and the Company shall, within 5 days following request
by the Agent, transfer all such accounts to, and thereafter maintain such
accounts at, a Lender.
6. Negative Covenants. The Company covenants that, without
the prior written consent of the Majority Lenders, it will not, until the
Lenders' Revolving Loan Commitment has terminated or expired and the
Notes, and all fees and expenses payable hereunder, have been paid in
full:
6.1 Restricted Payments. Make any Restricted Payments
except that so long as no Default or Event of Default exists and no
Default or Event of Default would arise after giving effect to any such
Restricted Payment, the Company may make, declare and pay dividends to the
Parent, provided that in no event shall the Company pay any dividend that
constitutes a return-of-capital to the Parent nor shall the Company pay
any dividend during any fiscal quarter following a fiscal quarter for
which the Company achieved Net Earnings of less than $0.
6.2 Limitations on Indebtedness. Create, incur, assume or
permit to exist any Indebtedness except (a) Indebtedness owed to the
Lenders arising under this Agreement; (b) Indebtedness secured by
Permitted Liens; (c) Subordinated Debt; (d) Commercial Paper; (e) the
Company's obligations under Permitted Swap Contracts; (f) existing
Indebtedness listed on Schedule 6.2 attached hereto; (g) Indebtedness
created after the date of this Agreement secured by Third Party Loans
pledged to the lender, provided that the aggregate outstanding principal
balance of such Third Party Loans shall not at any time exceed 110% of the
unpaid principal balance of the Company's Indebtedness to such lender; and
(h) unsecured Indebtedness.
6.3 Limitations on Contingent Obligations. Create, incur,
assume or permit to exist any Contingent Obligations except for (a) the
endorsement of negotiable or nonnegotiable instruments for collection in
the ordinary course of business, (b) the Contingent Obligations listed on
Schedule 6.3 which shall not be extended, renewed or increased and (c)
Contingent Obligations in favor of a Lender.
6.4 Limitations on Liens and Encumbrances. Create, assume
or permit to exist any mortgage, security interest, lien or charge of any
kind, including any restriction against mortgages, security interests,
liens or charges upon any of its properties or assets, whether now owned
or hereafter acquired, except for Permitted Liens.
6.5 Limitations on Mergers, Etc. Merge or consolidate
with or into any other corporation or entity (other than the merger of
Bando XxXxxxxxxx Real Estate Investment Corporation into the Company) or
sell, lease, transfer or otherwise dispose of in a single transaction or a
series of transactions, all or a substantial part of its assets other than
sales of Third Party Loans or pro rata participation interests therein on
a nonrecourse basis made in the ordinary course of business.
6.6 Limitations on Acquisitions, Advances and Investments.
Acquire stock issued by a corporation, an ownership interest in any
limited liability company or any partnership or joint venture interest, or
all or substantially all of the assets of another Person, or make any
loan, advance or extension of credit to any Person except (a) the purchase
of United States government bonds and obligations; (b) Third Party Loans
to borrowers in the ordinary course of business of the Company;
(c) commercial paper with a maturity not exceeding 90 days; (d) deposits
in deposit accounts at banks; (e) investments in bank repurchase
agreements; (f) loans and advances to employees and agents in the ordinary
course of business for travel and entertainment expenses and similar
items; (g) the purchase by the Company of properties owned by Bando
XxXxxxxxxx Real Estate Investment Corporation; and (h) the purchase of
Third Party Loans from InvestorsBank.
6.7 Lines of Business. Engage in any business other than
those in which it is now engaged and any business directly related thereto
if, as a result thereof, the general nature of the businesses engaged in
by the Company would be substantially changed from the general nature of
its businesses as of the Closing Date.
6.8 Sale and Leaseback. Sell or transfer any fixed assets
and then or thereafter rent or lease as lessee any such assets.
6.9 Adjusted Tangible Net Worth. Permit Adjusted Tangible
Net Worth to be less than $21,000,000 at any time.
6.10 Leverage Ratio. Permit the Leverage Ratio to be
greater than 7.0:1.0 at any time.
6.11 Nonperforming Loans. Permit the ratio of (a) the
aggregate outstanding principal balance of Nonperforming Loans (excluding
the aggregate outstanding principal balance of such loans which have been
sold without recourse) to (b) the aggregate outstanding principal balance
of all Third Party Loans (excluding the aggregate outstanding principal
balance of such loans which have been sold without recourse) to exceed
.05:1.0 at any time.
6.12 Third Party Loan Concentration. Permit the aggregate
outstanding principal balance of Third Party Loans to a single borrower
and all Affiliates of such borrower to exceed $5,000,000 other than the
existing loans to the Lang Company and its Affiliates as set forth on
Schedule 6.12 attached hereto.
6.13 Net Earnings. Permit Net Earnings for any fiscal year
of the Company to be less than $1.
6.14 Lease Portfolio Coverage Ratio. Permit the Lease
Portfolio Coverage Ratio to be less than .09:1.0 at any time that the net
book value of properties in the Company's leasing division exceeds
$10,000,000.
6.15 Transactions with Affiliates. Enter into or be a
party to any transaction with any Affiliate except as otherwise provided
herein or in the ordinary course of business and upon fair and reasonable
terms which are no less favorable than a comparable arm's length
transaction with an entity which is not an Affiliate.
6.16 Concessions to Borrowers. Make advances to a Third
Party Loan borrower to permit such borrower to meet its debt service
payments on such Third Party Loan or agree to capitalize any interest
payment owed by a Third Party Loan borrower.
7. Events of Default; Remedies.
7.1 Events of Default. The occurrence of any of the
following shall constitute an Event of Default:
(a) Failure to Pay Note. The Company fails to pay
(a) principal on any Note when due, whether at a stated payment date, or a
date fixed by the Company for prepayment or by acceleration, or (b)
interest on any Note, or any fee or other amount payable hereunder, when
due and such default in payment of interest, fees or other amounts
continues uncured for a period of five days; or
(b) Falsity of Representations and Warranties. Any
representation or warranty made in any Loan Document (including, without
limitation, any Borrowing Base Certificate) is false in any material
respect on the date as of which made or as of which the same is to be
effective; or
(c) Breach of Covenants. The Company fails to comply
with any term, covenant or agreement contained in (a) sections 5.2, 5.3,
5.4, 5.5, 5.7, 5.8 or 5.10 and such failure continues uncured for a period
of 20 days, or (b) sections 5.1, 5.6, 5.9, 5.11 or section 6 hereof; or
(d) Breach of Other Provisions. The Company fails to
comply with any other agreement contained herein and such default
continues for a period of 30 days after written notice to the Company from
the Agent; or
(e) Default Under Permitted Swap Contract. There
occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (1) any event of default under such
Swap Contract as to which the Company is the defaulting party, or (2) any
Termination Event ( as defined in such Swap Contract) as to which the
Company is the "affected party", and, in either event, the liability of
the Company as a result thereof is greater than $100,000.
(f) Default Under Other Agreements. The Company or
the Parent fails to pay when due any other Indebtedness issued or assumed
by the Company or the Parent, or fails to comply with the terms of any
agreement under which such Indebtedness was created and such default
continues beyond the period of grace, if any, therein provided; or
(g) Entry of Final Judgments. A final judgment is
entered against the Company or the Parent which, together with all
unsatisfied final judgments entered against the Parent, the Company and
all Subsidiaries, exceeds the sum of $500,000, and such judgment shall
remain unsatisfied or unstayed for a period of 60 days after the entry
thereof; or
(h) ERISA Liability. Any event in relation to any
Plan which the Lenders determine in good faith could result in any of the
occurrences set forth in section 3.11 above; or
(i) Default Under Other Loan Documents. An "Event of
Default" (as defined therein) shall occur under any other Loan Document or
the party to any other Loan Document (other than a Lender) fails to timely
comply with any term, covenant or agreement contained therein; or
(j) Insolvency, Failure to Pay Debts or
Appointment of Receiver, Etc. The Company or the Parent becomes insolvent
or the subject of state insolvency proceedings, fails generally to pay its
debts as they become due or makes an assignment for the benefit of
creditors; or a receiver, trustee, custodian or other similar official is
appointed for, or takes possession of any substantial part of the property
of, the Company or the Parent; as used herein, the term "insolvent" means
that the sum of the Company's liabilities, which in accordance with GAAP
appear on the balance sheet of the Company, exceeds the sum of the
Company's assets which appear on such balance sheet; or
(k) Subject of United States Bankruptcy Proceedings.
The taking of corporate action by the Company or the Parent to authorize
such organization to become the subject of proceedings under the United
States Bankruptcy Code; or the execution by the Company or the Parent of a
petition to become a debtor under the United States Bankruptcy Code; or
the filing of an involuntary petition against the Company or the Parent
under the United States Bankruptcy Code which remains undismissed for a
period of 60 days; or the entry of an order for relief under the United
States Bankruptcy Code against the Company or the Parent.
7.2 Remedies. Upon the occurrence of any of the events
described in sections 7.1(a) through 7.1(i), inclusive, the Agent shall,
at the direction of the Majority Lenders, at the same or different times,
take any of the following actions:
(a) declare the Lenders' Revolving Loan Commitments
to be terminated, whereupon the Lenders' Revolving Loan Commitments shall,
except as otherwise provided in section 7.3, immediately terminate; or
(b) declare the Revolving Loans, and all accrued
interest thereon, to be immediately due and payable, whereupon the
Revolving Loans, all accrued interest thereon and all other amounts owing
or payable under the Loan Documents shall be immediately due and payable
without presentment, demand, protest or notice of any kind, all of which
are expressly waived by the Company.
Promptly following the making of such declaration, the
Agent shall give notice thereof to the Company and each Lender but the
failure to give such notice shall not impair any of the effects of such
declaration. Upon the occurrence of any of the events described in
sections 7.1(j) or (k), the Lenders' Revolving Loan Commitments shall,
except as otherwise provided in section 7.3, immediately terminate and the
Notes, together with accrued interest thereon and all other amounts owing
or payable under the Loan Documents shall be immediately due and payable
without presentment, demand, protest or notice of any kind, all of which
are expressly waived by the Company.
7.3 Revolving Loans to Retire Commercial Paper.
Notwithstanding anything to the contrary contained in this Agreement
(including any insufficiency in the Borrowing Base Amount to support
advances pursuant to this section 7.3), if there is Commercial Paper
outstanding on the date the Revolving Loan Commitments would otherwise
terminate under section 7.2, to the extent that such Commercial Paper was
issued prior to the date of delivery of any notice of Default or Event of
Default from the Agent to the Company, unless at the time the Revolving
Loan Commitments would so terminate an Event of Default described in
sections 7.1(j) or (k) has occurred and is continuing, and except as
otherwise prohibited by applicable law, the Lenders shall remain obligated
to make Revolving Loans in the manner set forth in this section.
On the Business Day after the Agent provides the notice of
termination of the Revolving Loan Commitment under section 7.2 each CP
Agent shall provide to the Agent a schedule specifying the maturity dates
of outstanding Commercial Paper placed by such CP Agent, the principal and
interest due on each maturity date and the aggregate amount of principal
and interest to become due with respect to such Commercial Paper. The
Agent shall promptly forward such schedules to the Lenders. No later than
1 p.m. Milwaukee, Wisconsin time on the day following the day the Lenders
receive copies of such schedules, provided that no Event of Default under
sections 7.1(j) or (k) then exists, each Lender shall forward to the Agent
such Lender's Percentage of the aggregate principal and interest to become
due on Commercial Paper after the termination of the Revolving Loan
Commitments. Such funds shall be held in a noninterest bearing account in
the name of the Agent and the Agent shall forward the appropriate amount
of principal and interest to each CP Agent on each respective maturity
date as set forth in the schedules provided to the Agent by each CP Agent.
The advance by a Lender under this section 7.3 shall
constitute a Revolving Loan to the Company, shall be a Base Rate Loan
bearing interest at the Default Rate and shall be immediately due and
payable by the Company.
The Company acknowledges and consents to the provisions of
this section 7.3. The Company further acknowledges that the placement of
Commercial Paper by the CP Placement Agents under the CP Placement
Agreements is solely at the discretion of the CP Placement Agents and the
CP Placement Agents may decline at any time to continue to so place such
Commercial Paper.
8. The Agent.
8.1 Appointment and Duties of the Agent. The Lenders
hereby appoint Firstar, subject to the terms and conditions of this
section 8, as the Agent for the Lenders under and for purposes of this
Agreement and the other Loan Documents. 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 vested in it by, or with respect to, taking or refraining
from taking any action or actions which it may be able to take under or in
respect of this Agreement and the other Loan Documents. Neither the Agent
nor any of its directors, officers, employees, agents or representatives
shall be liable for any action taken or not taken under any Loan Document
in the absence of gross negligence or willful misconduct.
8.3 Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to a failure by the Company to pay principal,
interest or fees required to be paid to the Agent, unless the Agent has
actual knowledge of such facts or has received notice from the Company or
a Lender in writing that the Company or such Lender considers that a
Default or Event of Default has occurred and is continuing and which
specifies the nature thereof.
If the Agent shall acquire actual knowledge of or
receive notice from a Lender that a Default or Event of Default has
occurred, the Agent shall promptly notify the Lenders and the Company of
such Default or Event of Default.
8.4 Consultation. The Agent in good faith may consult
with legal counsel or other advisors selected by it and shall be entitled
to fully rely upon any opinion of such counsel or other advisor in
connection with any action taken or not taken by the Agent in accordance
with such opinion.
8.5 Communications To and From the Agent. Upon any
occasion requiring or permitting an approval, consent, waiver, election or
other action on the part of the Lenders, unless action by the Agent alone
is expressly permitted hereunder, action shall be taken by the Agent for
and on behalf or for the benefit of the Lenders upon the direction of the
Majority Lenders or, if required under section 9.12, all the Lenders. The
Company may rely upon any communication from the Agent hereunder and need
not inquire into the propriety of or authorization for such communication.
Upon receipt by the Agent from the Company or any Lender of any
communication calling for an action on the part of the Lenders, the Agent
will, in turn, promptly inform the other Lenders in writing of the nature
of such communication. In addition, the Agent shall forward to each
Lender, promptly after receipt, copies of information provided by the
Company pursuant to the requirements of the Loan Documents including,
without limitation, the financial statements referred to in section 5.1
and section 8(b) of the Parent Guaranty, the Borrowing Base Certificates
and the notices referred to in section 5.10.
8.6 Limitations of Agency. The Agent will act under the
Loan Documents solely as the agent of the Lenders and only to the extent
specifically set forth in the Loan Documents and will, under no
circumstances, be considered to be a fiduciary of any nature whatsoever in
respect of any other Person. The relationship between the Agent and the
Lenders is that of agent and principal only and the Agent shall not be
deemed to be a trustee or fiduciary for any Lender. The Agent may
generally engage in any kind of banking or trust business with the Company
as if it were not the Agent.
8.7 No Representation or Warranty. No Lender (including
the Agent) makes to any other Lender any representation or warranty,
express or implied, or assumes any responsibility with respect to the
execution, validity or enforceability of this Agreement or the other Loan
Documents.
8.8 Lender Credit Decision. Each Lender acknowledges that
it has, independent of and without reliance upon any other Lender
(including the Agent) or any information provided by any other Lender
(including the Agent) and based upon the financial statements of the
Company and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independent of and
without reliance upon any other Lender (including the Agent) and based
upon such documents and information as it shall deem appropriate at that
time, continue to make its own credit decision in taking or not taking
action under this Agreement and the other Loan Documents.
8.9 Indemnity. Each Lender hereby indemnifies (which
indemnity shall survive the termination of this Agreement) the Agent, pro
rata according to such Lender's Percentage, from and against any and all
liabilities, obligations, losses, damages, claims, costs, or expenses of
any kind or nature whatsoever including reasonable attorneys' fees which
may at any time be imposed on, incurred by, or asserted against, the Agent
in any way related to or arising out of this Agreement or the other Loan
Documents and as to which the Agent is not reimbursed by the Company;
provided, however, that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, claims, costs
or expenses which are determined by a court of competent jurisdiction in a
final proceeding to have resulted solely from the Agent's gross negligence
or willful misconduct. The Agent shall not be required to take any action
hereunder or under any other Loan Document, or to prosecute or defend any
suit in respect of the transactions contemplated hereby, unless it is
indemnified hereunder to its satisfaction. If any indemnity in favor of
the Agent shall be or become, in the Agent's determination, inadequate,
the Agent may call for additional indemnification from the Lenders and
cease to do the acts indemnified against hereunder until such additional
indemnity is given.
8.10 Resignation or Removal of Agent; Successor Agent. The
Agent may resign as such at any time upon at least 30 days' prior notice
to the Company and all Lenders. The Agent may be removed at any time by
the Majority Lenders upon at least 30 days' prior notice by the Majority
Lenders to the Company and the Agent, but only for cause consisting of its
gross negligence or willful misconduct or following a declaration of
insolvency by the appropriate regulators. If the Agent at any time shall
resign or be removed, the Majority Lenders may appoint another Lender as a
successor Agent which shall thereupon become the Agent hereunder. If no
successor Agent shall have been so appointed by the Majority Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Agent gives notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint the successor Agent, which shall be one of the
Lenders. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall be entitled to receive from
the retiring Agent such documents of transfer and such assignments as such
successor Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties
and obligations as Agent under this Agreement.
9. Miscellaneous.
9.1 Survival of Representations and Warranties. The
Company's representations and warranties contained in section 3 hereof
shall survive closing and execution and delivery of the Notes.
9.2 Indemnification. The Company agrees to defend,
indemnify and hold harmless the Agent, the Collateral Custodian, the
Lenders and their respective directors, officers, employees and agents
from and against any and all loss, cost, expense or liability (including
reasonable attorneys' fees) incurred in connection with any and all claims
or proceedings (whether brought by a private party or governmental agency)
as a result of, or arising out of or relating to:
(a) bodily injury, property damage, abatement or
remediation, environmental damage or impairment or any other injury or
damage resulting from or relating to any hazardous or toxic substance or
contaminated material (as determined under Environmental Laws) located on
or migrating into, from or through property previously, now or hereafter
owned or occupied by the Company, which the Agent or any Lender may incur
due to the making of the Revolving Loans, the exercise of any of its
rights under the Security Documents, or otherwise;
(b) any transaction financed or to be financed, in
whole or in part, directly or indirectly, with the proceeds of any
Revolving Loan;
(c) any claim that the offering, issuance, placement
or sale of Commercial Paper, or any document used in connection therewith,
resulted in a violation of law, including any federal or state securities
law
(d) the entering into, performance of and exercise of
their rights under this Agreement or any other Loan Document by the Agent,
the Collateral Custodian and the Lenders.
This indemnity will survive foreclosure of any
security interest or mortgage or conveyance in lieu of foreclosure and the
repayment of the Revolving Loans and the discharge and release of the
Security Documents.
9.3 Expenses. The Company agrees, whether or not the
transaction hereby contemplated shall be consummated, to pay on demand
(a) all out-of-pocket expenses incurred by the Agent in connection with
the negotiation, execution, administration, or amendment of this Agreement
and the other Loan Documents, including reasonable counsel fees and
expenses, (b) all out-of-pocket expenses incurred by the Agent, the
Collateral Custodian or any Lender in connection with the enforcement of
this Agreement or any other Loan Document, (c) any taxes (including any
interest and penalties relating thereto) payable by any Lender (other than
taxes based upon such Lender's net income) on or with respect to the
transactions contemplated by this Agreement (the Company hereby agreeing
to indemnify each Lender with respect thereto) and (d) all out-of-pocket
expenses, including reasonable counsel fees and expenses, incurred by the
Agent, the Collateral Custodian or any Lender in connection with any
litigation, proceeding or dispute in any way related to the Agent's, the
Collateral Agent's and the Lenders' relationships with the Company,
whether arising hereunder or otherwise. The obligations of the Company
under this section will survive payment of the Revolving Loans.
9.4 Notices. All notices provided for herein shall be in
writing and shall be (a) delivered; (b) sent by express or first-class
mail; or (c) sent by facsimile transmission and confirmed in writing
provided to the recipient in a manner described in (a) or (b), and, if to
the Agent or a Lender, addressed to it at the address set forth below its
signature, and if to the Company, addressed to it at X.X. Xxx 000,
X000 X0000 Xxxxx Xxxx and Xxxxxxx X, Xxxxxxxx, Xxxxxxxxx 00000, Attention:
Vice President of Finance, Facsimile No. 000-000-0000, or to such other
address with respect to any party as such party shall notify the others in
writing; such notices shall be deemed given when delivered or mailed or so
transmitted.
9.5 Participations. The Company agrees that each Lender
may, at its option, sell to another financial institution or institutions
participating interests in the Note payable to such Lender and, in
connection with each such sale, and thereafter, disclose to the purchaser
or prospective purchaser of each such participating interest financial and
other information concerning the Company; provided, however, (a) such
Lender's obligations under this Agreement shall remain unchanged, (b) such
Lender shall remain solely responsible for the performance of such
obligations, (c) the Company and the Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents and (d) no
Lender shall transfer or grant any participating interest under which the
participant has rights to approve any amendment to, or any consent or
waiver with respect to this Agreement or any other Loan Document except to
the extent such amendment, consent or waiver would require unanimous
consent of the Lenders as described in section 9.12(b) and (c). The
Company agrees that if amounts outstanding under this Agreement or a Note
are due and unpaid, or shall have been declared or shall have become due
and payable upon the occurrence of an Event of Default, each such
purchaser shall be deemed to have, to the extent permitted by applicable
law, the right of setoff in respect of its participating interest in
amounts owing under this Agreement and such Note to the same extent as if
the amount of its participating interest were owed directly to it. The
Company further agrees that each such purchaser shall be entitled to the
benefits of sections 2.13 and 2.14 with respect to its participation in
the selling Lender's Revolving Loan Commitment; provided that no such
purchaser shall be entitled to receive any greater amount pursuant to that
section than the Lender would have been entitled to receive if no such
sale had occurred.
9.6 Titles. The titles of sections in this Agreement are
for convenience only and do not limit or construe the meaning of any
section.
9.7 Parties Bound; Waiver. The provisions of this
Agreement shall inure to the benefit of and be binding upon any successor
of any of the parties hereto and shall extend and be available to any
holder of a Note; provided that the Company's rights under this Agreement
are not assignable. No delay on the part of the Agent or any Lender in
exercising any right, power or privilege hereunder shall operate as a
waiver thereof, and no single or partial exercise of any right, power or
privilege hereunder shall preclude other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and
remedies herein specified are cumulative and not exclusive of any rights
or remedies which the Agent or a Lender would otherwise have.
9.8 Governing Law. This Agreement is being delivered in
and shall be deemed to be a contract governed by the laws of the State of
Wisconsin and shall be interpreted and enforced in accordance with the
laws of that state without regard to the principles of conflicts of laws.
9.9 Submission to Jurisdiction; Service of Process. As a
material inducement to the Agent and the Lenders to enter into this
Agreement:
(a) THE COMPANY AGREES THAT ALL ACTIONS OR
PROCEEDINGS IN ANY MANNER RELATING TO OR ARISING OUT OF THIS AGREEMENT OR
THE OTHER LOAN DOCUMENTS MAY BE BROUGHT ONLY IN COURTS OF THE STATE OF
WISCONSIN LOCATED IN MILWAUKEE COUNTY OR THE FEDERAL COURT FOR THE EASTERN
DISTRICT OF WISCONSIN AND THE COMPANY CONSENTS TO THE JURISDICTION OF SUCH
COURTS. THE COMPANY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO
THE VENUE OF ANY SUCH COURT AND ANY RIGHT IT MAY HAVE NOW OR HEREAFTER
HAVE TO CLAIM THAT ANY SUCH ACTION OR PROCEEDING IS IN AN INCONVENIENT
COURT; and
(b) The Company consents to the service of process in
any such action or proceeding by certified mail sent to the address
specified in section 9.4.
Nothing contained herein shall affect the right of the
Agent or the Lenders to serve process in any other manner permitted by law
or to commence an action or proceeding in any other jurisdiction.
9.10 Waiver of Jury Trial. THE COMPANY, THE AGENT AND THE
LENDERS HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THE RIGHT EACH OF THEM MAY
HAVE TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM BASED ON OR
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ANY OTHER ACTION OF ANY PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT TO THE AGENT AND THE LENDERS TO ENTER INTO THIS
AGREEMENT.
9.11 Limitation of Liability. THE COMPANY, THE AGENT AND
THE LENDERS HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR
RECOVER FROM ANY OTHER PARTY ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES, OF WHATEVER NATURE, OTHER THAN
ACTUAL DAMAGES.
9.12 Amendments. No provision of this Agreement or the
other Loan Documents may be amended, modified, supplemented, changed,
waived, discharged or terminated unless the consent of the Majority
Lenders and the Company is obtained in writing, provided, however, that no
such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any
particular action be taken by all the Lenders or by the Majority Lenders
shall be effective unless consented to by each Lender;
(b) modify this section 9.12, change the definition
of "Majority Lenders," increase any Revolving Loan Commitment or the
Percentage of any Lender, change the definition of "Borrowing Base
Amount," or reduce, or extend the scheduled due date for payment of, any
fees payable hereunder, shall be effective unless consented to by each
Lender;
(c) extend the scheduled due date for the payment of
principal or interest on any Note (or reduce the principal amount of or
rate of interest on any Note) shall be made without the consent of the
holder of such Note;
(d) release any collateral (except as permitted
herein or in the applicable Loan Document) shall be effective unless
consented to by each Lender; or
(e) adversely affect the interests, rights, or
obligations of the Agent shall be made without the consent of the Agent.
9.13 Counterparts. This Agreement and any amendment hereof
may be executed in several counterparts, each of which shall be executed
by the Agent and the Company and be deemed to be an original and all of
which together shall constitute one instrument. This Agreement shall
become effective when counterparts hereof executed on behalf of the
Company, the Agent and each Lender shall have been received by the Agent
and notice thereof shall have been given by the Agent to the Company and
each Lender.
9.14 Entire Agreement. This Agreement and the other Loan
Documents shall constitute the entire agreement of the parties pertaining
to the subject matter hereof and supersedes all prior or contemporaneous
agreements and understandings of the parties in connection therewith.
[Intentionally Left Blank, Signatures Continue on Next Page]
BANDO XXXXXXXXXX SMALL BUSINESS LENDING
CORPORATION
BY_____________________________
Its__________________________
Revolving
Loan
Commitment Percentage
FIRSTAR BANK MILWAUKEE, N.A.,
as the Agent
BY_____________________________
Its__________________________
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxx
Facsimile No.: 000-000-0000
$17,500,000 35% FIRSTAR BANK MILWAUKEE, N.A.,
as a Lender
BY_____________________________
Its__________________________
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxx
Facsimile No.: 000-000-0000
$17,500,000 35% FIRST BANK NATIONAL ASSOCIATION
BY_____________________________
Its__________________________
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Facsimile No.: 000-000-0000
$7,500,000 15% LASALLE NATIONAL BANK
BY_____________________________
Its__________________________
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Facsimile No.: 000-000-0000
$7,500,000 15% XXXXXX TRUST AND SAVINGS BANK
BY_____________________________
Its__________________________
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Facsimile No.: 000-000-0000
SCHEDULE 1
Existing Liens and Security Interests
SCHEDULE 3.4
Litigation
SCHEDULE 3.20
Year 2000 Compliance
SCHEDULE 6.2
Existing Indebtedness
SCHEDULE 6.3
Existing Contingent Obligations
