FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
FIRST AMENDED AND RESTATED
CREDIT AGREEMENT
CREDIT AGREEMENT
THIS FIRST AMENDED AND RESTATED CREDIT AGREEMENT (the “Agreement”) dated as of March 15, 2010 is
among TUFCO, L.P., a limited partnership duly organized and validly existing under the laws of the
State of Delaware (the “Borrower”), TUFCO TECHNOLOGIES, INC., a corporation duly organized under
the laws of the State of Delaware (“Parent”) and JPMORGAN CHASE BANK, N.A., or any successor or
assignee thereof, (the “Bank”). This document fully amends and restates that certain Credit
Agreement between the parties originally dated as of May 13, 2009. The parties hereto agree as
follows:
“Acquiring Company” has the meaning set forth in Section 11.3 of this Agreement.
“Additional Costs” has the meaning specified in Section 7.1.
“Adjusted LIBOR Rate” means, with respect to a LIBOR Rate Advance for the Interest Period, the sum
of (i) the Applicable Margin plus (ii) the quotient of (a) the LIBOR Rate applicable to the
Interest Period, divided (b) one minus the Reserve Requirement (expressed as a decimal) applicable
to the Interest Period.
“Advance” means a LIBOR Rate Advance and “Advances” means all LIBOR Rate Advances under the
Revolving Note.
“Affiliate” means, as to any Person, any other Person (a) that directly or indirectly, through one
or more intermediaries, controls or is controlled by, or is under common control with, such Person;
(b) that directly or indirectly beneficially owns or holds ten percent (10%) or more of any class
of voting stock of such Person; or (c) ten percent (10%) or more of the voting stock of which is
directly or indirectly beneficially owned or held by the Person in question. The term “control”
means the possession, directly or indirectly, of the power to direct or cause direction of the
management and policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise; provided, however, in no event shall the Bank be deemed an Affiliate of the
Borrower or any Subsidiaries.
“Agreement” has the meaning set forth in the introductory paragraph of this Agreement.
“Applicable Lending Office” means for the Bank, the lending office of the Bank (or of an Affiliate
of the Bank) designated below its name on the signature pages hereof or such other office of the
Bank (or of an Affiliate of the Bank) as the Bank may from time to time specify to the Borrower as
the office by which the Bank Revolving Loans are to be made and maintained.
“Applicable Margin” means with respect to any LIBOR Rate Advance 2.50% per annum.
“Approved Fund” has the meaning set forth in Section 15.8 of this Agreement.
“Assigning Bank” has the meaning set forth in Section 15.8 of this Agreement.
“Assignment and Assumption” means an assignment and assumption entered into by the Bank and its
assignee pursuant to Section 15.8, in substantially the form of Exhibit “C”.
“Bank” has the meaning set forth in the introductory paragraph of this Agreement.
“Bank Revolving Commitment” means the commitment of the Bank to make revolving loans to the
Borrower in an aggregate principal amount of Eight Million Dollars ($8,000,000) pursuant to Section
2.1 of this Agreement.
“Bank Revolving Loans” means the loans made by the Bank to the Borrower pursuant to the Bank
Revolving Commitment.
“Borrower” has the meaning set forth in the introductory paragraph of this Agreement.
“Borrowing Base” means the Borrowing Base applicable to the Bank Revolving Loans. Borrowing Base
shall mean an amount equal to the sum of (i) 80% of Eligible Accounts and (ii) 50% of Eligible
Inventory.
“Business Day” means (i) with respect to the Adjusted LIBOR Rate and any borrowing, payment or rate
selection of LIBOR Rate Advances, a day (other than a Saturday or Sunday) on which banks generally
are open in Texas and/or New York for the conduct of substantially all of their commercial lending
activities and on which dealings in United States dollars are carried on in the London interbank
market and (ii) for all other purposes, a day other than a Saturday, Sunday or any other day on
which national banking associations are authorized to be closed.
“CLO” has the meaning set forth in Section 15.8 of this Agreement.
“Capital Lease Obligations” means, as to any Person, the obligations of such Person to pay rent or
other amounts under a lease of (or other agreement conveying the right to use) real and/or personal
property, which obligations are required to be classified and accounted for as a capital lease on a
balance sheet of such Person under GAAP. For purposes of this Agreement, the amount of such Capital
Lease Obligations shall be the capitalized amount thereof, determined in accordance with GAAP.
“Closing Date” means the date of this Agreement.
“Code” means the Internal Revenue Code of 1986, as amended, and the regulations promulgated and
rulings issued thereunder.
“Commercial and Standby L/C(s)” has the meaning specified in Section 4.1.
“Commercial and Standby L/C Liabilities” means, at any time, the aggregate amount available for
drawing under all outstanding Commercial and Standby L/Cs and all unreimbursed drawings under
Commercial and Standby L/Cs.
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“Compliance Certificate” means a certificate in substantially the form of Exhibit “D” properly
completed and executed by a Responsible Party of the Parent.
“Consolidated After Tax Net Income” has the meaning specified in Section 12.2.
“Consolidated Net Income” shall mean, for any period, consolidated net income without consideration
of income taxes.
“Consolidated Net Worth” shall mean, as of the date of any determination thereof, the amount of
shareholders’ equity of Parent and its Subsidiaries as of such date plus (or minus in the case of a
deficit) the surplus and retained earnings of Parent and its Subsidiaries as of such date, all
determined on a consolidated basis and in accordance with GAAP.
“Consolidated Tangible Net Worth” shall mean, as of the date of any determination thereof, the sum
of (a) Consolidated Net Worth as of such date minus (b) the book value of all Intangible Assets of
Parent and its Subsidiaries as of such date, all determined on a consolidated basis and in
accordance with GAAP.
“Contract Rate” has the meaning set forth in Section 15.12 of this Agreement.
“Debt” means as to any Person at any time (without duplication): (a) all obligations of such Person
for borrowed money; (b) all obligations of such Person evidenced by bonds, notes, debentures, or
other similar instruments; (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person; (d) all obligations of such
Person to pay the deferred purchase price of property or services, except trade accounts payable of
such Person arising in the ordinary course of business that are not past due by more than ninety
(90) days or that are past due by more than ninety (90) days but are being contested in good faith
by appropriate proceedings diligently pursued; (e) all Capital Lease Obligations of such Person;
(f) all Debt or other obligations of others Guaranteed by such Person, the amount of which shall be
equal to the lesser of the principal amount of the obligations guaranteed and outstanding and the
maximum amount for which the guaranteeing person may be liable; (g) all obligations secured by a
Lien existing on property owned by such Person, whether or not the obligations secured thereby have
been assumed by such Person or are non-recourse to the credit of such Person; (h) all reimbursement
obligations of such Person (whether contingent or otherwise) in respect of letters of credit,
bankers’ acceptances, surety or other bonds, and similar instruments; (i) all liabilities of such
Person in respect of all unfunded vested benefits under any Plan; (j) all obligations of such
Person in respect of mandatory redemption or mandatory dividend rights on capital stock (or other
equity); (k) all obligations of such Person, contingent or otherwise, for the payment of money
under any noncompete, consulting, performance based or similar agreement or any other similar
arrangements providing for the deferred payment of the purchase price for an asset or assets; (l)
all obligations of such Person under any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these (the amount of the obligations in respect of any
agreement under this clause (l) shall, at any time of determination and for all purposes under
this Agreement, be the maximum aggregate amount that such Person would be required to pay if such
agreement were terminated at such time giving effect to current market conditions notwithstanding
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any contrary treatment in accordance with GAAP); (m) all obligations of such Person under any
Synthetic Lease; and (n) all other obligations for borrowed money or other financial accommodations
which are required to be reflected as a liability on the balance sheet of a Person in accordance
with GAAP.
“Default” means an Event of Default or the occurrence of an event or condition which with notice or
lapse of time or both would become an Event of Default.
“Default Rate” means, after a Default has occurred, whether or not the Bank elects to accelerate
the maturity of the Revolving Note because of such default, all Advances outstanding under the
Revolving Note, shall bear interest at a per annum rate equal to the interest rate being charged on
the Advance, plus two percent (2.00%) from the date after the Default has occurred. Imposition of
this rate shall not affect any limitations contained in the Revolving Note on the Borrower’s right
to repay principal on any LIBOR Rate Advance before the expiration of the Interest Period for that
Advance. “Dollars” and “$” mean lawful money of the United States of America.
“EBITDA” means, for any period, the total of the following calculated for the Parent and the
Subsidiaries without duplication on a consolidated basis for such period: (a) Consolidated After
Tax Net Income; plus (b) any deduction for (or less any gain from) income or franchise taxes
included in determining Consolidated After Tax Net Income; plus (c) interest expense (including the
interest portion of Capital Lease Obligations) deducted in determining Consolidated After Tax Net
Income; plus (d) amortization and depreciation expense deducted in determining Consolidated After
Tax Net Income.
“Environmental Laws” means any and all federal, state, and local laws, regulations, and
requirements pertaining to health, safety, or the environment, as such laws, regulations, and
requirements may be amended or supplemented from time to time.
“Environmental Liabilities” means, as to any Person, all liabilities, obligations,
responsibilities, Remedial Actions, losses, damages, punitive damages, consequential damages,
treble damages, costs, and expenses, (including, without limitation, all reasonable fees,
disbursements and expenses of counsel, expert and consulting fees and costs of investigation and
feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim
or demand, by any Person, whether based in contract, tort, implied or express warranty, strict
liability, criminal or civil statute, including any Environmental Law, permit, order, or agreement
with any Governmental Authority or other Person, arising from environmental, health, or safety
conditions or the Release or threatened Release of a Hazardous Material into the environment.
“Eligible Account” shall mean an Account owing to the Borrower or any of its Subsidiaries which
meets the following requirements:
(a) | it arose in the ordinary course of business of the Borrower or any of its Subsidiaries from a bona fide sale or lease of goods, which have been delivered or shipped to the Account Debtor and for which Borrower or any of its Subsidiaries has genuine invoices, shipping documents or receipts; | ||
(b) | it is payable within forty five (45) days or less from date of invoice and is not more than ninety (90) days past original invoice date; |
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(c) | it is not subject to any prior assignment, claim, lien or security interest whatsoever other than for any security interest of the Bank; | ||
(d) | it is a valid and legally enforceable obligation of an Account Debtor to the reasonable satisfaction of the Bank; | ||
(e) | except as hereinafter provided, it is not subject to setoff, counterclaim, credit allowance, or adjustment by the Account Debtor thereunder, or to any claim by such Account Debtor denying liability thereunder in whole or in part, and such Account Debtor has not refused to accept and has not returned any of the goods which are subject to such Account; provided that for purposes of determination of the amount of Eligible Accounts, this exception shall be limited to the extent of such setoff, counterclaim, credit, allowance, adjustment or claim; | ||
(f) | it is owed by an Account Debtor located in the United States, is not owing by an Affiliate of the Borrower and no notice of the bankruptcy or insolvency of the Account Debtor thereunder has been received by the Borrower (unless payment thereof is assured by a letter of credit, banker’s acceptance or other credit support reasonably satisfactory to the Bank); | ||
(g) | the Account Debtor is not in default with respect to any obligations owed the Bank; | ||
(h) | it does not arise out of a contract or order which by its terms forbids or makes void or unenforceable the assignment by the Borrower to the Bank of the Account arising with respect thereof; and | ||
(i) | it is not owed by a governmental authority. |
An Account which is at any time an Eligible Account, shall cease to be an Eligible Account
during any period in which it fails to meet any of the foregoing requirements.
Contra accounts shall qualify as an Eligible Account provided the offsetting account payable
is paid within normal payment terms allowed by the supplier but in no event more than 30 days from
the date of invoice.
In the event an Account Debtor shall have more than twenty (20%) percent of its existing
credit past ninety (90) days of original invoice date, all obligations of the Account Debtor shall
be considered past due and excluded as an Eligible Account.
The terms “Account” and “Account Debtor” shall have the meanings set forth in the Wisconsin
Uniform Commercial Code.
“Eligible Inventory” shall mean the Borrower’s or any of its Subsidiaries raw material and finished
goods inventory (as that term is defined in the Wisconsin Uniform Commercial Code) and is owned by
the Borrower free and clear of all encumbrances and security interests (except for any security
interest of the Bank); and the existence, location, amount and lower of cost or wholesale market
value of which have certified to in a manner satisfactory to Bank by a representative of the
Borrower at such times as Bank may request. Eligible Inventory shall be valued at the lower of
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cost (measured on a first-in first-out basis) and the market value of such Eligible Inventory.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time,
and the regulations and published interpretations thereunder.
“ERISA Affiliate” means any corporation, trade, or business which is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Borrower
or is under common control (within the meaning of Section 414(c) of the Code) with the Borrower.
“Event of Default” has the meaning specified in Section 13.1.
“Fiscal Quarters” means the four (4) periods falling in each Fiscal Year, each such period three
calendar months in duration with the first such period in any Fiscal Year beginning on the first
day of October and the last such period in any Fiscal Year ending on the last day of September.
“Fiscal Year” means twelve (12) month period beginning on the first day of October and ending on
the last day of September of the following year.
“Funded Debt” means, for any period, the total of the following calculated for the Parent and the
Subsidiaries without duplication on a consolidated basis for such period: (a) all obligations of
such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, notes,
debentures, or other similar instruments; (c) all obligations of such Person under conditional sale
or other title retention agreements relating to property acquired by such Person; (d) all
obligations of such Person to pay the deferred purchase price of property or services, except trade
accounts payable of such Person arising in the ordinary course of business; (e) all Capital Lease
Obligations of such Person; and (f) all obligations of others Guaranteed by such Person.
“GAAP” means generally accepted accounting principles, applied on a consistent basis, as set forth
in Opinions of the Accounting Principles Board of the American Institute of Certified Public
Accountants and/or in statements of the Financial Accounting Standards Board and/or their
respective successors and which are applicable in the circumstances as of the date in question.
Accounting principles are applied on a “consistent basis” when the accounting principles applied in
a current period are comparable in all material respects to those accounting principles applied in
a preceding period, except as otherwise required by GAAP.
“Governmental Authority” means any nation or government, any state or political subdivision
thereof, and any entity exercising executive, legislative, judicial, regulatory, or administrative
functions of or pertaining to government.
“Guarantee” by any Person means any obligation, contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt
or other obligation (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (b) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof or to protect the
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obligee against loss in respect thereof (in whole or in part), provided that the term Guarantee
shall not include endorsements for collection or deposit in the ordinary course of business. The
term “Guarantee” used as a verb has a corresponding meaning. The amount of any Guarantee shall be
equal to the amount of the obligations so guaranteed or otherwise supported or, if not a fixed and
determined amount, the maximum amount so guaranteed.
“Guarantors” means Tufco Technologies, Inc., Hamco Manufacturing and Distributing, LLC and any
Subsidiary of Tufco Technologies, Inc. other than the Borrower including, without limitation, Tufco
LLC.
“Hazardous Material” means any substance, product, waste, pollutant, material, chemical,
contaminant, constituent, or other material which is or becomes listed, regulated, or addressed
under any Environmental Law.
“Intangible Assets” shall mean all patents, trademarks, service marks, copyrights, trade names,
goodwill (including any amounts, however designated, representing the cost of acquisition of
business and investments in excess of the book value thereof), unamortized debt discount and
expense, unamortized bond issuance costs, unamortized deferred charges, deferred research and
development costs, any write-up of asset value after the date of this Agreement, organizational
costs, noncompetition covenants, signing bonuses, and any other assets treated as intangible assets
under GAAP.
“Interest Period” means each consecutive one month period, the first of which shall commence on the
date of the Revolving Note, ending on the day which corresponds numerically to such date one (1)
month thereafter, provided, however, that if there is no such numerically corresponding day in such
first succeeding month, such Interest Period shall end on the last Business Day of such first
succeeding month. If an Interest Period would otherwise end on a day which is not a Business Day,
such Interest Period shall end on the next succeeding Business Day, provided, however, that if said
next succeeding Business Day falls in a new calendar month, such Interest Period shall end on the
immediately preceding Business Day.
“Joinder Agreement” means an agreement which has been or will be executed by a Subsidiary as
required hereby adding it as a party to the Master Guaranty in substantially the form of Exhibit
“B” attached hereto.
“Letters of Credit” means the Commercial and Standby L/Cs.
“Letter of Credit Liabilities” means the Commercial and Standby L/C Liabilities.
“LIBOR Rate” means with respect to any LIBOR Rate Advance for the Interest Period, the interest
rate determined by the Bank by reference to Reuters Screen LIBOR01, formerly known as Page 3750 of
the Moneyline Telerate Service (together with any successor or substitute, the “Service”) or any
successor or substitute page of the Service providing rate quotations comparable to those currently
provided on such page of the Service, as determined by the Bank from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the London interbank market
(the “Page”), to be the rate at approximately 11:00 a.m. London time, two business Days prior to
the commencement of the Interest Period for dollar deposits with a maturity equal to the Interest
Period. If no LIBOR Rate is available to the Bank, the applicable LIBOR Rate for the Interest
Period shall instead be the rate determined by the Bank to be the rate at which the
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Bank offers to place U.S. dollar deposits having a maturity equal to the Interest Period with
first-class banks in the London interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of the Interest Period.
“LIBOR Rate Advance” means any borrowing under the Revolving Note when and to the extent that its
interest rate is determined by reference to the Adjusted LIBOR Rate.
“Lien” means any lien, mortgage, security interest, tax lien, financing statement, pledge, charge,
hypothecation, or other encumbrance of any kind or nature whatsoever (including, without
limitation, any conditional sale or title retention agreement), whether arising by contract,
operation of law, or otherwise.
“Loan Documents” means this Agreement, the Revolving Note, the Master Guaranty, and all other
promissory notes, guaranties, letters of credit, interest rate protection agreements and other
instruments, agreements, and other documentation executed and delivered pursuant to or in
connection with this Agreement.
“Master Guaranty” means that certain Master Guaranty Agreement dated as of even date herewith
executed by the Guarantors and any other Subsidiary or other entity who may become a party thereto
pursuant to the execution and delivery of a Joinder Agreement in favor of the Bank, which is
substantially in the form of Exhibit “E”, as the same may be amended or otherwise modified from
time to time.
“Material Adverse Effect” means (a) a material adverse effect on the business, condition (financial
or otherwise), operations, or properties of the Borrower and the Subsidiaries taken as a whole or
(b) a material adverse effect on the ability of the Bank to enforce a material provision of the
Loan Documents. In determining whether any individual event could reasonably be expected to result
in a Material Adverse Effect, notwithstanding that such event does not itself have such effect, a
Material Adverse Effect shall be deemed to have occurred if the cumulative effect of such event and
all other then existing events could reasonably be expected to result in a Material Adverse Effect.
“Maximum Rate” means, at any time and with respect to the Bank, the maximum rate of nonusurious
interest under applicable law that the Bank may charge the Borrower. The Maximum Rate shall be
calculated in a manner that takes into account any and all fees, payments, and other charges
contracted for, charged, or received in connection with the Loan Documents that constitute interest
under applicable law. Each change in any interest rate provided for herein based upon the Maximum
Rate resulting from a change in the Maximum Rate shall take effect without notice to the Borrower
at the time of such change in the Maximum Rate. For purposes of determining the Maximum Rate under
Wisconsin law, the applicable rate ceiling shall be the weekly ceiling described in, and computed
in accordance with, Chapter 303 of the Wisconsin Finance Code.
“Multiemployer Plan” means a multiemployer plan defined as such in Section 3(37) of ERISA to which
the Borrower or any ERISA Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding six (6) years made or accrued an obligation to make contributions,
and which is covered by Title IV of ERISA.
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“Obligated Party” means the Guarantors or any other Person (exclusive of the Borrower) who is or
becomes party to any agreement that guarantees or secures payment and performance of the
Obligations or any part thereof.
“Obligation” means all obligations, indebtedness, and liabilities of the Borrower or any Obligated
Party to the Bank or any Affiliate of the Bank, arising pursuant to the following:
(i) any of the Loan Documents;
(ii) any agreement with respect to any swap, forward, future or derivative transaction or option or
similar agreement involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar transaction or any
combination of these entered into by the Bank or any Affiliate thereof with the Borrower or any
Obligated Party; and
(iii) any deposit, lock box or cash or treasury management arrangements entered into by the Bank or
any Affiliate thereof with Borrower or any Obligated Party, whether any of such obligations,
indebtedness or liabilities are now existing or hereafter arising, whether direct, indirect,
related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several, or joint and
several, including, without limitation, the obligation of the Borrower to repay the Bank Revolving
Loans, interest on the Bank Revolving Loans and all reasonable and documented out of pocket fees,
costs, and expenses (including attorneys’ fees and expenses) provided for in the documentation
relating thereto.
“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to all or any of its
functions under ERISA.
“Parent” means Tufco Technologies, Inc.
“Participants” has the meaning specified in Section 15.8.
“Payment Date” has the meaning set forth in Section 4.3 of this Agreement.
“Person” means any individual, corporation, business trust, association, company, partnership,
joint venture, Governmental Authority, or other entity.
“Plan” means any employee benefit plan (other than a Multiemployer Plan) established or maintained
by the Borrower or any ERISA Affiliate and to which the Borrower or any ERISA Affiliate is making
or accruing an obligation to make contributions or has within any of the preceding six years made
or accrued an obligation to make contributions.
“Principal Office” means the principal office of the Bank, located at 000 X. Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000.
“Prohibited Transaction” means any transaction set forth in Section 406 or 407 of ERISA or Section
4975(c)(1) of the Code for which there does not exist a statutory or administrative exemption.
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“Quarterly Payment Date” means the last day of January, April, July and October of each year, the
first of which shall be the first such day after the date of this Agreement.
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as from
time to time in effect and any successor thereto or other regulation or official interpretation of
said Board of Governors relating to reserve requirements applicable to member banks of the Federal
Reserve System.
“Regulatory Change” means, with respect to the Bank, any change after the date of this Agreement in
United States federal, state, or foreign laws or regulations (including Regulation D) or the
adoption or making after such date of any interpretations, directives, or requests applying to a
class of banks including the Bank of or under any United States federal or state, or any foreign,
laws or regulations (whether or not having the force of law) by any Governmental Authority or
monetary authority charged with the interpretation or administration thereof.
“Reimbursement Obligations” means the obligation of the Borrower to reimburse the Bank for any
demand for payment or drawing under a Letter of Credit.
“Related Parties” means, with respect to the Bank, the Bank’s Affiliates and the respective
directors, officers, employees, agents and advisors of the Bank and the Bank’s Affiliates.
“Release” means, as to any Person, any release, spill, emission, leaking, pumping, injection,
deposit, disposal, disbursement, leaching, or migration of Hazardous Materials into the indoor or
outdoor environment or into or out of property owned by such Person, including, without limitation,
the movement of Hazardous Materials through or in the air, soil, surface water, ground water, or
property in violation of Environmental Laws.
“Released Parties” has the meaning set forth in Section 15.10 of this Agreement.
“Remedial Action” means all actions required to (a) cleanup, remove, treat, or otherwise address
Hazardous Materials in the indoor or outdoor environment, (b) prevent the Release or threat of
Release or minimize the further Release of Hazardous Materials so that they do not migrate or
endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, or
(c) perform pre-remedial studies and investigations and post-remedial monitoring and care.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, excluding
however, any such events where the thirty (30) day notice requirement of Section 4043 of ERISA has
been waived either by statute or by the PBGC.
“Reserve Requirement” means, with respect to an Interest Period, the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other reserves) which is imposed under
Regulation D.
“Responsible Party” means with respect to any Person, the president, chief financial officer or
chief accounting officer of such Person.
“Revolving Note” means the Note provided for by Section 2.2 and all amendments or other
modifications thereof.
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“Revolving Termination Date” means January 31, 2011, or such earlier date on which the Bank
Revolving Commitment terminates as provided in this Agreement.
“Subsidiary” means any corporation (or other entity) of which at least a majority of the
outstanding shares of stock (or other ownership interests) having by the terms thereof ordinary
voting power to elect a majority of the board of directors (or similar governing body) of such
corporation (or other entity) (irrespective of whether or not at the time stock (or other ownership
interests) of any other class or classes of such corporation (or other entity) shall have or might
have voting power by reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by the Parent or one or more of the Subsidiaries or by the Parent
and one or more of the Subsidiaries.
“Synthetic Lease” means any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which lease is required or is permitted to be
classified and accounted for as an operating lease under GAAP but which is intended by the parties
thereto for tax, bankruptcy, regulatory, commercial law, real estate law and all other purposes as
a financing arrangement.
“Transferring Subsidiary” has the meaning set forth in Section 11.3 of this Agreement.
“UCC” means the Uniform Commercial Code as in effect in the State of Wisconsin.
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Subject to the foregoing limitations, and the other terms and provisions of this Agreement, the
Borrower may borrow, prepay, and reborrow hereunder the amount of the Bank’s Revolving Commitment
until the Revolving Termination Date. The Borrower shall be obligated to pay only the amount of the
Bank Revolving Loans actually made, together with interest on the amounts of the Bank Revolving
Loans actually made to the Borrower which are outstanding from time to time. The Bank Revolving
Loans shall bear interest at the Adjusted LIBOR Rate. Interest shall be payable on the last day of
each Interest Period and on the Revolving Termination Date.
(ii) The entries maintained in the account(s) maintained pursuant to paragraph (i) above shall be
prima facie evidence of the existence and amount of the Obligations therein recorded; provided;
however, that the failure of the Bank to maintain such account(s) or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Obligations in accordance with their
terms.
(iii) The Bank may request that its advances be evidenced by a promissory note in substantially the
form of Exhibit A-2.2 (a “Note”). In such event, the Borrower shall prepare, execute and deliver to
the Bank such Note payable to the order of the Bank. Thereafter, the advances evidenced by such
Note and interest thereon shall at all times, prior to any assignment, be represented by one or
more Notes payable to the order of the payee named therein, except to the extent that the Bank
subsequently returns any such Note for cancellation and requests that such advances once again be
evidenced as described in paragraph (i) above.
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13
a repayment hereunder, and on any signature which the Bank believes to be genuine, and the Borrower
shall be bound thereby in the same manner as if such person were actually authorized or such
signature were genuine. The Borrower agrees to indemnify the Bank and hold it harmless from and
against any and all claims, demands, damages, liabilities, losses, costs and expenses (including,
without limitation, reasonable attorneys’ fees and expenses) relating to or arising out of or in
connection with the acceptance of instructions for making Bank Revolving Loans or making repayments
hereunder unless such acceptance results from the gross negligence or willful misconduct of the
Bank as determined by a Court of competent jurisdiction.
(a) the aggregate amount of outstanding Commercial and Standby L/C Liabilities shall not at any
time exceed One Million Dollars ($1,000,000); and
(b) the outstanding Bank Revolving Loans shall not at any time exceed the lesser of the Bank
Revolving Commitment or the Borrowing Base.
14
With respect to commercial Letters of Credit, the Borrower shall pay to the Bank a letter of credit
fee in such amounts as is customarily charged by the Bank for issuance of commercial Letters of
Credit.
15
Person to note the amount of any instrument on any Letter of Credit, each of which requirements, if
contained in any Letter of Credit itself, it is agreed may be waived by the Bank; (b) errors,
omissions, interruptions, or delays in transmission or delivery of any messages; (c) the validity,
sufficiency, or genuineness of any draft or other document, or any endorsement(s) thereon, even if
any such draft, document or endorsement should in fact prove to be in any and all respects invalid,
insufficient, fraudulent, or forged or any statement therein is untrue or inaccurate in any
respect; or (d) any other circumstance whatsoever in making or failing to make any payment under a
Letter of Credit. Notwithstanding the forgoing, the Borrower shall have a claim against the Bank,
and the Bank shall be liable to the Borrower, to the extent of any direct, but not indirect,
consequential or punitive, damages suffered by the Borrower which the Borrower proves in a final
nonappealable judgment were caused by (i) the Bank’s willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit complied with the terms thereof
or (ii) the Bank’s willful failure to pay under any Letter of Credit after presentation to it of
documentation strictly complying with the terms and conditions of such Letter of Credit. The Bank
may accept documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary.
ARTICLE 6.
(RESERVED)
(RESERVED)
16
(a) The Borrower shall pay directly to the Bank from time to time such amounts as the Bank may
determine to be necessary to compensate it for any reasonable costs incurred by the Bank which the
Bank determines are directly attributable to its making or maintaining of any Bank Revolving Loans
hereunder or its obligation to make any of the Bank Revolving Loans hereunder, or any reduction in
any amount receivable by the Bank hereunder in respect of any Bank Revolving Loans or such
obligation (such increases in costs and reductions in amounts receivable being herein called
“Additional Costs”), resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to the Bank under this Agreement or the
Revolving Note in respect of any of the Bank Revolving Loans (other than franchise taxes and taxes
imposed on the overall net income of the Bank or its Applicable Lending Office for any of the Bank
Revolving Loans by the United States of America or the jurisdiction in which the Bank has its
Principal Office or the Applicable Lending Office);
(ii) imposes or modifies any reserve (other than the Reserve Requirement), special deposit, minimum
capital, capital ratio, or similar requirement relating to any extensions of credit or other assets
of, or any deposits with or other liabilities or commitments of, the Bank (including any of the
Bank Revolving Loans; or
(iii) imposes any other condition affecting this Agreement or the Revolving Note or any of such
extensions of credit or liabilities or commitments and which results in additional cost or expense
to the Bank.
The Bank will notify the Borrower of any event occurring after the date of this Agreement which
will entitle the Bank to compensation pursuant to this Section 7.1(a) as promptly as practicable
after it obtains knowledge thereof and determines to request such compensation, and will designate
a different Applicable Lending Office for the Bank Revolving Loans affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation and will not, in
the sole opinion of the Bank, violate any law, rule, or regulation or be in any way disadvantageous
to the Bank. The Bank will furnish the Borrower with a certificate setting forth the basis and the
amount of each request of the Bank for compensation under this Section 7.1(a). If the Bank requests
compensation from the Borrower under this subsection Section 7.1(a), the Borrower may, by notice to
the Bank suspend the obligation of the Bank to make Bank Revolving Loans until the Regulatory
Change giving rise to such request ceases to be in effect .
(b) Without limiting the effect of the foregoing provisions of this Section 7.1, in the event that,
by reason of any Regulatory Change, the Bank either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of deposits or other
liabilities of the Bank which includes deposits by reference to which the interest rate on the Bank
Revolving Loans is determined as provided in this Agreement or a category of extensions of credit
or other assets of the Bank which includes Bank Revolving Loans or (ii) becomes subject to
restrictions on the amount of such a category of liabilities or assets which it may hold, then, if
the Bank so elects by notice to the Borrower the obligation of the Bank to make Bank Revolving
17
Loans hereunder shall be suspended until the Regulatory Change giving rise to such request ceases
to be in effect.
(c) Determinations and allocations by the Bank for purposes of this Section 7.1 of the effect of
any Regulatory Change on its costs of maintaining its obligation to make Bank Revolving Loans or of
making or maintaining Bank Revolving Loans or on amounts receivable by it in respect of the Bank
Revolving Loans, and of the additional amounts required to compensate the Bank in respect of any
Additional Costs, shall, absent manifest error, be conclusive, provided that such determinations
and allocations are made on a reasonable basis.
(a) The Bank determines (which determination shall be conclusive) that quotations of interest rates
are not being provided for purposes of determining the rate of interest for the Bank Revolving
Loans; or
(b) The Bank determines (which determination shall be conclusive) that the relevant rates of
interest for the Bank Revolving Loans do not accurately reflect the cost to the Bank of making or
maintaining the Bank Revolving Loans;
then the Bank shall give the Borrower prompt notice thereof and so long as such condition remains
in effect, the Bank shall be under no obligation to make additional Bank Revolving Loans and the
Borrower shall, on the last day(s) of the then current Interest Period(s) prepay the Bank Revolving
Loans. Determinations made under this Section 7.2 shall be made on a reasonable basis.
(a) Any payment or prepayment of Bank Revolving Loans for any reason (including, without
limitation, the acceleration of the outstanding Bank Revolving Loans pursuant to Section 13.2(a))
on a date other than the last day of an Interest Period; or
(b) Any failure by the Borrower for any reason (including, without limitation, the failure of any
conditions precedent specified in Article 8 to be satisfied) to borrow or prepay the Bank Revolving
Loans on the date for such borrowing or prepayment specified in the relevant notice of borrowing or
prepayment under this Agreement.
Without limiting the effect of the preceding sentence, such compensation shall include an amount
18
equal to the excess, if any, of (i) the amount of interest which otherwise would have accrued on
the principal amount so paid or not borrowed for the period from the date of such payment or
failure to borrow to the last day of the Interest Period (or, in the case of a failure to borrow,
the Interest Period which would have commenced on the date specified for such borrowing) at the
applicable rate of interest provided for herein over (ii) the interest component of the amount the
Bank would have bid in the London interbank market for Dollar deposits of leading banks and amounts
comparable to such principal amount and with maturities comparable to such period.
19
notices and other communications in connection with the Loan Documents.
Each request for borrowing by the Borrower hereunder and each request for the issuance of a Letter
of Credit, shall constitute a representation and warranty by the Borrower that the conditions
precedent set forth in Section 8.2(a) and Section 8.2(b) have been satisfied (both as of the date
of such notice and, unless the Borrower otherwise notifies the Bank prior to the date of such
borrowing, as of the date of such borrowing or issuance of a Letter of Credit).
To induce the Bank to enter into this Agreement, the Parent and the Borrower each represents and
warrants to the Bank that:
20
September 30, 2008 and an unaudited consolidated financial statement of the Parent and the
Subsidiaries for the Fiscal Quarter ending December 31, 2008. Such financial statements, have been
prepared in accordance with GAAP (subject, in the case of the unaudited financial statements, to
the absence of footnotes and normal year end adjustments) and present fairly, in all material
respects, on a consolidated basis, the financial condition of the Parent and the Subsidiaries as of
the respective dates indicated therein and the results of operations for the respective periods
indicated therein. Neither the Borrower nor any of the Obligated Parties has any material
contingent liabilities, liabilities for taxes, unusual forward or long-term commitments, or
unrealized or anticipated losses from any unfavorable commitments except as referred to or
reflected in such financial statements. There has been no material adverse change in the business,
condition (financial or otherwise), operations, or properties of the Parent and the Subsidiaries
taken as a whole since the effective date of the most recent financial statements referred to in
this Section 9.2.
21
22
Section 9.15. Agreements. Neither the Borrower nor any Obligated Party is a party to any indenture,
loan, or credit agreement, or to any lease or other agreement or instrument, or subject to any
charter or corporate restriction that could reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any Obligated Party is in default in any respect in the
performance, observance, or fulfillment of any of the obligations, covenants, or conditions
contained in any agreement or instrument to which it is a party other than defaults which will not
have a Material Adverse Effect.
(a) The Borrower, each Obligated Party, and all of their respective properties, assets, and
operations are in material compliance with all applicable Environmental Laws. The Borrower is not
aware of, nor has the Borrower received written notice of, any past, present, or future conditions,
events, activities, practices, or incidents which are reasonably likely to interfere with or
prevent the material compliance or continued material compliance of the Borrower and the Obligated
Parties with all Environmental Laws;
23
(b) The Borrower and each Obligated Party have obtained all permits, licenses, and authorizations
that are required under applicable Environmental Laws, and all such permits are in good standing
and the Borrower and the Obligated Parties are in material compliance with all of the terms and
conditions of such permits;
(c) No Hazardous Materials have been used, generated, stored, transported, disposed of on, or
Released from any of the properties or assets of the Borrower or any Obligated Party by the
Borrower or any Obligated Party, and to the knowledge of the Borrower, no Hazardous Materials are
present at such properties, except in material compliance with Environmental Laws. The use which
the Borrower and the Obligated Parties make and intend to make of their respective properties and
assets will not result in the use, generation, storage, transportation, accumulation, disposal, or
Release of any Hazardous Material on, in, or from any of their properties or assets except in
compliance with Environmental Laws;
(d) Neither the Borrower nor any of the Obligated Parties nor any of their respective currently or
previously owned or leased properties or operations is subject to any outstanding or, to the best
of its knowledge, threatened order from or agreement with any Governmental Authority or other
Person or subject to any judicial or administrative proceeding with respect to (i) failure to
comply with Environmental Laws, (ii) Remedial Action, or (iii) any Environmental Liabilities
arising from a Release or threatened Release;
(e) Neither the Borrower nor any of the Obligated Parties owns or operates a treatment, storage, or
disposal facility requiring a permit under the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq., regulations thereunder or any comparable provision of state law. The Borrower
and the Obligated Parties are in material compliance with all applicable financial responsibility
requirements of all Environmental Laws;
(f) Neither the Borrower nor any of the Obligated Parties has filed or failed to file any notice
required under applicable Environmental Law reporting a Release; and
(g) No Lien arising under any Environmental Law is attached to any property or revenues of the
Borrower or the Obligated Parties.
24
The Parent and the Borrower covenant and agree that, as long as the Obligations or any part thereof
are outstanding or the Bank has any Bank Revolving Commitment hereunder, they will perform and
observe the following positive covenants:
(a) Annual Financial Statements. As soon as available, and in any event within one hundred twenty
(120) days after the end of each Fiscal Year, beginning with the Fiscal Year ending on September
30, 2009, a copy of the following financial statements of the Parent and the Subsidiaries on an
audited, consolidated basis, and, if requested by the Bank, on an unaudited, consolidating basis:
balance sheets and statements of income, retained earnings, and cash flow as at the end of such
Fiscal Year and for the Fiscal Year then ended, in each case setting forth in comparative form the
figures for the preceding Fiscal Year, all in reasonable detail. Each of the audited financial
statements shall be certified on an unqualified basis by independent certified public accountants
of recognized standing acceptable to the Bank, to the effect that such report has been prepared in
accordance with GAAP;
(b) Monthly Financial Statements and Borrowing Base Certificate. As soon as available, and in any
event within thirty (30) days after the end of each month of each Fiscal Year, a copy of an
unaudited financial report of the Parent and the Subsidiaries as of the end of such period
containing, on a consolidated basis, and, if requested by the Bank, on a consolidating basis, a
balance sheet and statements of income, in each case setting forth in comparative form the figures
for the corresponding month of the preceding Fiscal Year, all in reasonable detail certified by a
Responsible Party of the Parent to have been prepared in accordance with GAAP and to fairly present
in all material respects (in each case, subject to the absence of footnotes and subject to year end
audit adjustments) the financial condition and results of operations of the Parent and the
Subsidiaries, on a consolidated basis, at the date and for the periods indicated therein together
with a Borrowing Base Certificate signed by a Responsible Party of the Parent;
25
(k) Proxy Statements, Etc. As soon as available, one copy of each financial statement, report,
notice or proxy statement sent by the Borrower or any Obligated Party to its stockholders generally
and one copy of each regular, periodic, or special report, registration statement, or prospectus
filed by the Borrower or any Obligated Party with any securities exchange or the Securities and
Exchange Commission or any successor agency;
26
necessary or desirable in the ordinary conduct of its business. The Parent will, and will cause
each of the Subsidiaries to, conduct its business in an orderly and efficient manner in accordance
with good business practices.
27
Subsidiaries to, comply in all material respects with all agreements, contracts, and instruments
binding on it or affecting its properties or business.
The Parent covenants and agrees that, as long as the Obligations or any part thereof (other than
contingent obligations) are outstanding or the Bank has any Bank Revolving Commitment hereunder, it
will perform and observe the following negative covenants:
28
assume, or permit to exist any Debt, except:
(a) Debt to the Bank pursuant to the Loan Documents and existing Debt described on Schedule 11.1;
(b) Intercompany Debt owed by any Subsidiary to the Parent or any other Subsidiary; provided that
(i) the obligations of each obligor of such Debt must be subordinated in right of payment to any
liability such obligor may have for the Obligations from and after such time as any portion of the
Obligations shall become due and payable (whether at stated maturity, by acceleration or otherwise)
and (ii) such Debt must be incurred in the ordinary course of business and on terms customary for
intercompany borrowings or must be made on such other terms and provisions as the Agent may
reasonably require;
(c) Debt not to exceed Five Hundred Thousand Dollars ($500,000) in the aggregate at any time
outstanding secured by purchase money Liens permitted by Section 11.2;
(d) Obligations to reimburse worker’s compensation insurance companies for claims paid by such
companies on the Parent’s or one of the Subsidiaries’ behalf in accordance with the policies issued
to the Parent and the Subsidiaries;
(e) Guaranties incurred in the ordinary course of business with respect to surety and appeal bonds,
performance and return-of-money bonds, and other similar obligations not exceeding at any time
outstanding Five Hundred Thousand Dollars ($500,000) in aggregate liability;
(f) Debt arising in connection with any interest rate swap, cap, collar or similar agreements
entered into to enable Borrower to fix or limit its actual interest expense;
(g) Debts, other than the Debts specifically described in clauses (a) through (f) of this Section
11.1, which in the aggregate do not exceed Five Hundred Thousand Dollars ($500,000) at any time
outstanding.
(a) Existing Liens and any replacement, renewal or extension thereof that do not increase the
outstanding principal amount thereof or extend to any additional assets;
(b) Encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the
use of real property that do not (individually or in the aggregate) materially affect the value of
the assets encumbered thereby or materially impair the ability of the Parent or the Subsidiaries to
use such assets in their respective businesses, and none of which is violated in any material
respect by existing or proposed structures or land use;
(c) Liens (other than Liens relating to Environmental Liabilities or ERISA) for taxes, assessments,
or other governmental charges that are not delinquent or which are being contested in good faith
and for which adequate reserves have been established;
29
(d) Liens of mechanics, materialmen, warehousemen, carriers, landlords, or other similar statutory
Liens securing obligations that are not yet due and are incurred in the ordinary course of business
or which are being contested in good faith and for which adequate reserves have been established;
(e) Liens resulting from good faith deposits to secure payments of worker’s compensation or other
social security programs or to secure the performance of tenders, statutory obligations, surety and
appeal bonds, bids, and contracts (other than for payment of Debt);
(f) Liens for purchase money obligations and Capital Lease Obligations; provided that: (i) the Debt
secured by any such Lien is permitted under Section 11.1; and (ii) any such Lien encumbers only the
asset so purchased;
(g) Liens related to any attachment or judgment not constituting an Event of Default;
(h) Liens arising from filing UCC financing statements regarding leases not prohibited by this
Agreement; and
Except for this Agreement, the other Loan Documents and as otherwise provided herein, neither the
Parent nor the Borrower will, and each will not permit any of the Subsidiaries directly or
indirectly to create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any such companies to: (1) pay dividends
or make any other distribution on any of such company’s capital stock (or other equity interests)
owned by the Parent or any of the Subsidiaries; (2) subject to subordination provisions, pay any
Debt owed to the Parent or any of the Subsidiaries; (3) make loans or advances to the Parent or any
of the Subsidiaries; or (4) transfer any of its property or assets to the Parent or any of the
Subsidiaries.
30
up, dissolve and liquidate.
(a) readily marketable direct obligations of the United States of America or any agency thereof
with maturities of one year or less from the date of acquisition;
(b) fully insured certificates of deposit with maturities of one year or less from the date of
acquisition issued by any commercial bank operating in the United States of America having capital
and surplus in excess of Two Hundred Fifty Million Dollars ($250,000,000);
(c) commercial paper or bonds of a domestic issuer if at the time of purchase such paper or bonds
are rated in one of the two highest rating categories of Standard and Poor’s Corporation or Xxxxx’x
Investors Service, Inc.;
(d) current trade and customer accounts receivable for services rendered in the ordinary course of
business;
(e) shares of any mutual fund registered under the Investment Company Act of 1940, as amended,
which invests solely in investment of the type described in clauses (a) through (c) of this Section
11.5;
(f) advances to employees for business expenses incurred in the ordinary course of business;
(g) existing investments described on Schedule 11.5 hereto and investments in Subsidiaries;
31
(h) loans, advances and other extensions of credit to Subsidiaries made in accordance with the
restrictions set forth in Section 11.1(b); provided that, at the time any such loan, advance or
other extension of credit is made, no Default exists or would result therefrom;
(i) Guarantees permitted by Section 11.1;
(j) in addition to advances made pursuant to clause (f) above, loans to employees provided that the
aggregate outstanding amount of all loans to employees does not exceed Two Hundred Seventy Five
Thousand Dollars ($275,000) at any time outstanding;
(k) shares of Parent’s stock redeemed or repurchased as permitted in Section 11.4; and
(l) investments in securities in connection with an acquisition permitted in Section 11.3.
For the avoidance of doubt, this Section shall not be deemed to prohibit the Borrower from making
payments at any time to pay the Parent’s expenses incurred in the ordinary course of the Parent’s
and the Borrower’s businesses and such payments may be made to the Parent or on behalf of the
Parent.
32
The Parent covenants and agrees that, as long as the Obligations or any part thereof are
outstanding or the Bank has any Bank Revolving Commitment hereunder, the Parent will perform and
observe the following financial covenants:
“Consolidated After Tax Net Income” means, for any period, the Parent’s and its Subsidiaries
consolidated after tax net income (or loss) determined in conformity with GAAP (with inventory
being valued at the lower of (i) its market value or (ii) its historical cost (measured on a
first-in, first-out basis), but excluding to the extent included and without duplication:
(a) any extraordinary, nonrecurring or non-operating gain or revenue;
(b) any extraordinary, nonrecurring or non-operating loss or expense which is non-cash;
33
(c) any gains or losses realized upon the sale or other disposition of any capital stock or debt
security of the Parent or any Subsidiary;
(d) any gains or losses from the disposal of a discontinued business;
(e) any net gains or losses arising from the extinguishment of any debt of the Parent or any
Subsidiary;
(f) any restoration to income of any contingency reserve relating to any long term assets or long
term liability, except to the extent that provision for such reserve was made out of income accrued
during such period;
(g) the cumulative effect of any change in an accounting principle on income of prior periods;
(h) any deferred credit representing the excess of equity in any acquired company or assets at the
date of acquisition over the cost of the investment in such company or asset;
(i) the income from any sale of assets in which the book value of such assets prior to their sale
had been the book value inherited by the Parent or Subsidiary from a transfer of such assets;
(j) the income (or loss) of any Person (other than Parent or a Subsidiary) in which the Parent or a
Subsidiary has an ownership interest; provided, however, that (i) Consolidated After Tax Net Income
shall include amounts in respect of the income of such Person when actually received in cash by the
Parent or Subsidiary in the form of dividends or similar distributions and (ii) Consolidated After
Tax Net Income shall be reduced by the aggregate amount of all investments, regardless of the form
thereof, made by the Parent or Subsidiary in such Person for the purpose of funding any deficit or
loss of such Person;
(k) any reduction in or addition to income tax expense resulting from an increase or decrease in a
deferred income tax asset due to the anticipation of future income tax benefits;
(l) any reduction in or addition to income tax expense due to the change in a statutory tax rate
resulting in an increase or decrease in a deferred income tax asset or in a deferred income tax
liability;
(m) any gains or losses attributable to returned surplus assets of any pension-benefit plan or any
pension credit attributable to the excess of (i) the return on pension-plan assets over (ii) the
pension obligation’s service cost and interest cost; and
(n) the income or loss of any Person acquired by the Parent or a Subsidiary for any period prior to
the date of such acquisition.
34
(a) The Borrower shall fail to pay when due any principal, interest, fees or other Obligations
payable under any Loan Document or any part thereof.
(b) Any representation, warranty, or certification made or deemed made by the Borrower or any
Obligated Party (or any of their respective officers) in any Loan Document or in any certificate,
report, notice, or financial statement furnished at any time in connection with any Loan Document
shall be false, misleading, or erroneous in any material respect when made or deemed to have been
made; provided that if (a) at the time such representation, warranty or certification was made,
each of the Borrower and each Obligated Party reasonably believed its accuracy and (b) the
circumstances which resulted in the inaccurate or misleading representation, warranty or
certification are capable of being remedied, then an Event of Default shall not occur herein on
account thereof until twenty (20) days after the earlier of (i) the date the Borrower or any
Obligated Party became aware of the inaccurate or misleading representation, warranty or
certification or (ii) the date the Bank provides the Borrower with notice thereof.
(c) The Borrower or any Obligated Party shall fail to perform, observe or comply with any covenant,
agreement, or term contained in Section 10.1(g), Section 10.2(i), Section 10.6, Article 11 or
Article 12 of this Agreement.
(d) The Borrower or any Obligated Party shall fail to perform, observe, or comply with any
covenant, agreement, or term contained in any Loan Document (other than covenants to pay the
Obligations and the covenants described in Section 13.1(c)) and such failure shall continue for a
period of twenty (20) days after the earlier of (i) the date the Bank provides the Borrower with
notice thereof or (ii) the date the Borrower has knowledge of such failure and should have, with
the exercise of reasonable diligence, notified the Bank thereof in accordance with Section 10.1(g).
(e) The Borrower or any Obligated Party shall (i) apply for or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee, examiner, liquidator, or the like of
itself or of all or a substantial part of its property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case under the United States Bankruptcy Code
(as now or hereafter in effect, the “Bankruptcy Code”), (iv) institute any proceeding or file a
petition seeking to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, winding-up, or composition or readjustment of debts, (v)
fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary case under the Bankruptcy Code, (vi) admit in writing its
inability to, or be generally unable to pay its debts as such debts become due, or (vii) take any
corporate action for the purpose of effecting any of the foregoing.
(f) A proceeding or case shall be commenced, without the application, approval, or consent of the
Borrower or any Obligated Party, in any court of competent jurisdiction, seeking (i) its
reorganization, liquidation, dissolution, arrangement, or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a receiver, custodian, trustee, examiner,
liquidator, or the like of the Borrower or any such Obligated Party or of all or any substantial
part
35
of its property, or (iii) similar relief in respect of the Borrower or any such Obligated Party
under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue undismissed, or an order, judgment
or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in
effect, for a period of thirty (30) or more days, or an order for relief against the Borrower or
any Obligated Party shall be entered in an involuntary case under the Bankruptcy Code.
(g) The Borrower or any Obligated Party shall fail to discharge within a period of thirty (30) days
after the commencement thereof any attachment, sequestration, forfeiture, or similar proceeding or
proceedings involving an aggregate amount in excess of Five Hundred Thousand Dollars ($500,000)
against any of its assets or properties.
(h) A final judgment or judgments for the payment of money in excess of Five Hundred Thousand
Dollars ($500,000) in the aggregate shall be rendered by a court or courts against the Borrower or
any Subsidiaries and the same shall not be discharged (or provision shall not be made for such
discharge), or a stay of execution thereof shall not be procured, within thirty (30) days from the
date of entry thereof, and the Borrower or the relevant Obligated Party shall not, within said
period of thirty (30) days, or such longer period during which execution of the same shall have
been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal.
(i) The Borrower or any Obligated Party shall fail to pay when due any principal of or interest on
any Debt if the aggregate principal amount of the affected Debt equals or exceeds Two Hundred Fifty
Thousand Dollars ($250,000) (other than the Obligations), or the maturity of any such Debt shall
have been accelerated, or any such Debt shall have been required to be prepaid prior to the stated
maturity thereof or any event shall have occurred with respect to any Debt in the aggregate
principal amount equal to or in excess of Two Hundred Fifty Thousand Dollars ($250,000) that
permits (or, with the giving of notice or lapse of time or both, would permit) any holder or
holders of such Debt or any Person acting on behalf of such holder or holders to accelerate the
maturity thereof or require any such prepayment.
(j) This Agreement shall cease to be in full force and effect or shall be declared null and void or
the validity or enforceability thereof shall be contested or challenged by the Borrower or any
Obligated Party or the Borrower or any Obligated Party shall deny that it has any further liability
or obligation under any of the Loan Documents.
(k) Any of the following events shall occur or exist with respect to the Borrower or any ERISA
Affiliate: (i) any Prohibited Transaction involving any Plan or Multiemployer Plan; (ii) any
Reportable Event with respect to any Plan; (iii) the filing under Section 4041 of ERISA of a notice
of intent to terminate any Plan or the termination of any Plan; (iv) any event or circumstance that
might constitute grounds entitling the PBGC to institute proceedings under Section 4042 of ERISA
for the termination of, or for the appointment of a trustee to administer, any Plan, or the
institution by the PBGC of any such proceedings; or (v) complete or partial withdrawal under
Section 4201 or 4204 of ERISA from a Multiemployer Plan or the reorganization, insolvency, or
termination of any Multiemployer Plan; and in each case above, such event or condition, together
with all other events or conditions, if any, have subjected or could reasonably be expected to
subject the Borrower to any tax, penalty, or other liability to a Plan, a Multiemployer Plan, the
PBGC, or otherwise (or any combination thereof) which in the aggregate exceed or could
36
reasonably be expected to exceed Five Hundred Thousand Dollars ($500,000).
(d) Rights. Exercise any and all rights and remedies afforded by the laws of the State of Wisconsin
or any other jurisdiction, by any of the Loan Documents, by equity, or otherwise.
Provided, however, that upon the occurrence of an Event of Default under Section 13.1(e) or Section
13.1(f), the Bank Revolving Commitment shall automatically terminate, and the outstanding principal
of and accrued and unpaid interest on the Revolving Note and all other amounts payable by the
Borrower under the Loan Documents shall thereupon become immediately due and payable without
notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to
accelerate, protest, or other formalities of any kind, all of which are hereby expressly waived by
the Borrower.
37
irrespective of whether or not the Bank shall have made any demand under such Loan Documents and
although such Obligations may be unmatured. The Bank agrees promptly to notify the Borrower after
any such setoff and application; provided, that the failure to give such notice shall not affect
the validity of such setoff and application. The rights and remedies of the Bank hereunder are in
addition to other rights and remedies (including, without limitation, other rights of setoff) which
the Bank may have.
ARTICLE 14.
(RESERVED)
(RESERVED)
(a) all reasonable costs and expenses of the Bank arising in connection with the preparation,
negotiation, execution, delivery, syndication, distribution and review of the Loan Documents and
all amendments or other modifications to the Loan Documents, including, without limitation, the
reasonable fees and expenses of legal counsel for the Bank in an amount not to exceed $25,000.00;
(b) all costs and expenses of the Bank in connection with any Default and the enforcement of any
Loan Document, including, without limitation, the fees and expenses of legal counsel for the Bank
(including the allocated costs of in house counsel); (c) all transfer, stamp, documentary, or other
similar taxes, assessments, or charges levied by any Governmental Authority in respect of any Loan
Document; and (d) all other reasonable costs and expenses incurred by the Bank in connection with
any Loan Document, including, without limitation, all costs, expenses, and other charges incurred
in connection with obtaining any lien search in respect of any assets of the Borrower or any
Subsidiary, but not any audit, appraisal or environmental assessment expenses.
38
HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS,
DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES) TO WHICH ANY
OF THEM MAY BECOME SUBJECT WHICH DIRECTLY OR INDIRECTLY ARISE FROM OR RELATE TO (A) THE
NEGOTIATION, EXECUTION, DELIVERY, PERFORMANCE, ADMINISTRATION, OR ENFORCEMENT OF ANY OF THE LOAN
DOCUMENTS, (B) ANY OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS, (C) ANY BREACH BY THE
BORROWER OR ANY OBLIGATED PARTY OF ANY REPRESENTATION, WARRANTY, COVENANT, OR OTHER AGREEMENT
CONTAINED IN ANY OF THE LOAN DOCUMENTS, (D) THE PRESENCE, RELEASE, THREATENED RELEASE, DISPOSAL,
REMOVAL, OR CLEANUP OF ANY HAZARDOUS MATERIAL LOCATED ON, ABOUT, WITHIN, OR AFFECTING ANY OF THE
PROPERTIES OR ASSETS OF THE BORROWER OR ANY SUBSIDIARY, OR (E) ANY INVESTIGATION, LITIGATION, OR
OTHER PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY THREATENED INVESTIGATION, LITIGATION, OR OTHER
PROCEEDING RELATING TO ANY OF THE FOREGOING; PROVIDED THAT THE PERSON ENTITLED TO BE INDEMNIFIED
UNDER THIS SECTION 15.2 SHALL NOT BE INDEMNIFIED FROM OR HELD HARMLESS AGAINST ANY LOSSES,
LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, OR EXPENSES ARISING OUT
OF OR RESULTING FROM ITS GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BREACH OF ITS OBLIGATIONS UNDER
THE LOAN DOCUMENTS. WITHOUT LIMITING ANY PROVISION OF ANY LOAN DOCUMENT, IT IS THE EXPRESS
INTENTION OF THE PARTIES HERETO THAT EACH PERSON TO BE INDEMNIFIED UNDER THIS SECTION SHALL BE
INDEMNIFIED FROM AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES,
PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND
EXPENSES) ARISING OUT OF OR RESULTING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH PERSON.
39
the other to be other than that of debtor and creditor.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that (i) neither the
Borrower nor the Parent may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Bank (and any attempted assignment or transfer by the
Borrower or the Parent without such consent shall be null and void) and (ii) the Bank may not
assign or otherwise transfer its rights or obligations hereunder except in accordance with this
Section 15.8. Nothing in this Agreement, expressed or implied, shall be construed to confer upon
any Person (other than the parties hereto, their respective successors and assigns permitted
hereby, Participants (to the extent provided in this Section 15.8(c)) and, to the extent expressly
contemplated hereby, the Related Parties of the Bank, any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in Section 15.8(b)(ii), the Bank (the “Assigning Bank”)
may assign to one or more Persons (each an “Assignee”) all or a portion of its rights and
obligations under this Agreement and the other Loan Documents (including all or a portion of the
Bank Revolving Commitment and the Bank Revolving Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of the Borrower, provided that no
consent of the Borrower shall be required for an assignment to an Affiliate of the Bank, an
Approved Fund (as defined below) or, if an Event of Default under Section 13.1(a), Section 13.1(e),
or Section 13.1(f) has occurred and is continuing.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to an Affiliate of the Bank or an assignment of the entire
remaining amount of the Assigning Bank’s Revolving Commitment or Revolving Loans, the amount of the
Revolving Commitment or Revolving Loans of the Assigning Bank subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Borrower) shall not be less than Two Million Dollars ($2,000,000) unless each of
the Borrower and the Bank otherwise consent, provided that no such consent of the Borrower shall be
required if an Event of Default under Section 13.1(a), Section 13.1(e), or
40
Section 13.1(f) has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the
Assigning Bank’s rights and obligations under this Agreement; and
(C) in the case of an assignment to a CLO (as defined below), the Assigning Bank shall retain the
sole right to approve any amendment, modification or waiver of any provision of this Agreement,
provided that the Assignment and Assumption between such Assigning Bank and such CLO may provide
that such Assigning Bank will not, without the consent of such CLO, agree to any amendment,
modification or waiver described in the first proviso to Section 15.11(b) that affects such CLO.
For the purposes of this Section 15.8(b), the terms “Approved Fund” and “CLO” have the following
meanings:
“Approved Fund” means (a) a CLO and (b) with respect to any Bank that is a fund which invests in
bank loans and similar extensions of credit, any other fund that invests in bank loans and similar
extensions of credit and is managed by the same investment advisor as such Bank or by an Affiliate
of such investment advisor.
“CLO” means any entity (whether a corporation, partnership, trust or otherwise) that is engaged in
making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit
in the ordinary course of its business and is administered or managed by a Bank or an Affiliate of
such Bank.
(iii) Subject to acceptance, from and after the effective date specified in each Assignment and
Assumption the Assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of the Bank under this
Agreement, and the Assigning Bank thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement (and, in the case
of an Assignment and Assumption covering all of the Assigning Bank’s rights and obligations under
this Agreement, such Assigning Bank shall cease to be a party hereto but shall continue to be
entitled to the benefits of Article 7, Section 15.1 and Section 15.2). Any assignment or transfer
by the Bank of rights or obligations under this Agreement that does not comply with this Section
15.8 shall be treated for purposes of this Agreement as a sale by such Bank of a participation in
such rights and obligations in accordance with Section 15.8(c).
(c) (i) The Bank may, without the consent of the Borrower, sell participations in a minimum
amount of $1,000,000 to one or more banks or other entities (a “Participant”) in all or a portion
of the Bank’s rights and obligations under this Agreement (including all or a portion of the Bank
Revolving Commitment and the Bank Revolving Loans owing to it); provided that (A) the Bank’s
obligations under this Agreement shall remain unchanged, (B) the Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations and (C) the
Borrower and the Bank shall continue to deal solely and directly with each other in connection with
the Bank’s rights and obligations under the Loan Documents. Any agreement or instrument pursuant to
which the Bank sells such a participation shall provide that the Bank shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver of any provision of
the Loan Documents; provided that such agreement or instrument may provide
41
that the Bank will not, without the consent of the Participant, agree to any amendment,
modification or waiver regarding any of the following actions to the extent that it would affect
the Participant: (1) any increase of the Bank’s Revolving Commitment, (2) any reduction of the
principal amount of, or interest to be paid on, the Bank Revolving Loans or other Obligations of
the Bank, (3) any reduction of any commitment fee, or other amount payable to the Bank under any
Loan Document, (4) any postponement of any date for the payment of any amount payable in respect of
the Bank Revolving Loans or other Obligations of the Bank, or (5) the release of Borrower or any
Obligated Party. Subject to Section 15.8(c)(ii), the Borrower agrees that each Participant shall be
entitled to the benefits of Article 7 to the same extent as if it were a Bank and had acquired its
interest by assignment pursuant to Section 15.8(b). To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 13.4 as though it were a Bank.
(ii) A Participant shall not be entitled to receive any greater payment under Article 7 than the
applicable Bank would have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made with the Borrower’s
prior written consent.
(d) Any Bank may at any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Bank, including any pledge or assignment
to secure obligations to a Federal Reserve Bank, and this Section 15.8 shall not apply to any such
pledge or assignment of a security interest; provided that no such pledge or assignment of a
security interest shall release a Bank from any of its obligations hereunder or substitute any such
pledgee or assignee for such Bank as a party hereto.
(e) Any Bank may, in connection with any assignment or participation or proposed assignment or
participation pursuant to this Section 15.8, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Parent or the Subsidiaries furnished to
such Bank by or on behalf of the Parent or the Subsidiaries.
42
(a) No waiver of any provision of any Loan Document or consent to any departure by the Borrower or
any Obligated Party therefrom shall in any event be effective unless the same shall be permitted by
Section 15.11(b), and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the foregoing, the making
of a Bank Revolving Loan or issuance of a Letter of Credit shall not be construed as a waiver of
any Default, regardless of whether the Bank may have had notice or knowledge of such Default at the
time.
(b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be
waived, amended or modified except pursuant to an agreement or agreements in writing entered into
by the Borrower and the Bank.
(a) No interest rate specified in any Loan Document shall at any time exceed the Maximum Rate. If
at any time the interest rate (the “Contract Rate”) for any Obligation shall exceed the Maximum
Rate, thereby causing the interest accruing on such Obligation to be limited to the Maximum Rate,
then any subsequent reduction in the Contract Rate for such Obligation shall not reduce the rate of
interest on such Obligation below the Maximum Rate until the aggregate amount of interest accrued
on such Obligation equals the aggregate amount of interest which would have accrued on such
Obligation if the Contract Rate for such Obligation had at all times been in effect.
(b) No provision of any Loan Document shall require the payment or the collection of interest in
excess of the maximum amount permitted by applicable law. If any excess of interest in such respect
is hereby provided for, or shall be adjudicated to be so provided, in any Loan Document or
otherwise in connection with this loan transaction, the provisions of this Section shall govern and
prevail and neither the Borrower nor the sureties, guarantors, successors, or assigns of the
Borrower shall be obligated to pay the excess amount of such interest or any other excess sum paid
for the use, forbearance, or detention of sums loaned pursuant hereto. In the event any Bank ever
receives, collects, or applies as interest any such sum, such amount which would be in excess of
the maximum amount permitted by applicable law shall be applied as a payment and reduction of the
principal of the Obligations, and, if the principal of the Obligations has been paid in full, any
remaining excess shall forthwith be paid to the Borrower. In determining whether or not the
interest paid or payable exceeds the Maximum Rate, the Borrower and each Bank shall, to the extent
permitted by applicable law, (a) characterize any non-principal payment as an expense, fee, or
premium rather than as interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest
throughout the entire contemplated term of the Obligations so that interest for the entire term
does not exceed the Maximum Rate.
43
with this Section. Except as otherwise provided in any Loan Document, all such communications shall
be deemed to have been duly given when transmitted by telecopy, subject to telephone confirmation
of receipt, or when personally delivered or, in the case of a mailed notice, three (3) Business
Days after being duly deposited in the mails, in each case given or addressed as aforesaid.
Section 15.14. Governing Law; Venue of Service of Process. This Agreement shall be governed by and
construed in accordance with the laws of the State of Wisconsin and the applicable laws of the
United States of America. ANY ACTION OR PROCEEDING AGAINST THE BORROWER UNDER OR IN CONNECTION WITH
ANY LOAN DOCUMENT MAY BE BROUGHT IN ANY STATE COURT LOCATED IN GREEN BAY OR MILWAUKEE, WISCONSIN OR
ANY FEDERAL COURT IN THE EASTERN DISTRICT OF WISCONSIN. THE BORROWER HEREBY IRREVOCABLY (a) SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS, AND (b) WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH
COURT IS AN INCONVENIENT FORUM. THE BORROWER AGREES THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED OR DETERMINED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 15.13 OF THIS AGREEMENT. NOTHING IN THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT SHALL AFFECT THE RIGHT OF THE BANK TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE BANK TO BRING ANY ACTION OR PROCEEDING AGAINST THE
BORROWER OR WITH RESPECT TO ANY OF ITS PROPERTY IN COURTS IN ANY OTHER JURISDICTION. ANY ACTION OR
PROCEEDING BY THE BORROWER AGAINST THE BANK SHALL BE BROUGHT ONLY IN A COURT LOCATED IN GREEN BAY,
OR MILWAUKEE, WISCONSIN.
44
or prohibition.
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the
funding of terrorism and money laundering activities, Federal law requires all financial
institutions to obtain, verify and record information that identifies each person or entity that
opens an account, including any deposit account, treasury management account, loan, other extension
of credit, or other financial services product. What this means for Borrower: When Borrower opens
an account, if Borrower is an individual, the Bank will ask for Borrower’s name, residential
address, tax identification number, date of birth, and other information that will allow the Bank
to identify Borrower, and, if Borrower is not an individual, the Bank will ask for Borrower’s name,
tax identification number, business address, and other information that will allow the Bank to
identify Borrower. The Bank may also ask, if Borrower is an individual, to see Borrower’s driver’s
license or other identifying documents, and, if Borrower is not an individual, to see Borrower’s
legal organizational documents or other identifying documents.
45
BORROWER AND PARENT: | ||
TUFCO, L.P. | ||
By: Tufco LLC, | ||
its Managing General Partner | ||
By: Tufco Technologies, Inc., | ||
its Sole Managing Member. |
By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Xxxxxxx X. Xxxxxxx, | ||||
Authorized Officer for the Managing Member | ||||
TUFCO TECHNOLOGIES, INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Xxxxxxx X. Xxxxxxx, | ||||
Chief Financial Officer, Vice President and Secretary | ||||
Address for Notices to Borrower and Parent:
X.X. Xxx 00000
Xxxxx Xxx, Xxxxxxxxx 00000
Telephone No: 000-000-0000
Facsimile No: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxx
Xxxxx Xxx, Xxxxxxxxx 00000
Telephone No: 000-000-0000
Facsimile No: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
Dechert LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx xx Xxxxx, Esq.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx xx Xxxxx, Esq.
Bradford Ventures, Ltd
000 Xxxxxxxx Xxx., Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
000 Xxxxxxxx Xxx., Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
46
BANK: JPMORGAN CHASE BANK, N.A. |
||||
By: | /s/ Xxxxx X. Xxx | |||
Xxxxx X. Xxx, | ||||
Title: | Regional President-Northeast Wisconsin | |||
Address: 000 X. Xxxxxxx Xxxxxx | ||
Xxxxxxxx, XX 00000 | ||
Telephone No.: (000) 000-0000 | ||
Facsimile No.: (000) 000-0000 |
47