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EXHIBIT 10.1
PLEXUS CORP.
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AMENDED AND RESTATED CREDIT AGREEMENT
As of June 15, 2000
Firstar Bank, National Association
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▇▇▇▇▇▇ Trust and Savings Bank
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Bank One, NA
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P.O. Box 2033
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Ladies/Gentlemen:
Plexus Corp., a Wisconsin corporation with its principal offices
located in the City of Neenah, Wisconsin, (the "Company") refers to the Credit
Agreement dated as of March 20, 1997, as amended through Amendment No. 2 thereto
dated July 19, 1999 (the "Existing Credit Agreement") between the Company, the
Banks party thereto (the "Banks") and Firstar Bank, National Association, as
Agent for the Banks (the "Agent"). The Company has issued to the Banks under the
Existing Credit Agreement its revolving credit notes in the aggregate principal
amount of $40,000,000 payable to the order of the Banks (collectively, the
"Existing Notes") to evidence the loans outstanding under the Existing Credit
Agreement (the "Existing Loans"). The Company has requested that the Banks
increase the amount of credit available to the Company and modify the terms and
conditions applicable to such credit as set forth below. Accordingly, this
Agreement is executed and delivered by the Company and the Banks for the sake of
convenience and clarity, to amend and restate the Existing Credit Agreement and
in so doing set forth and confirm the terms and conditions applicable to such
credit facilities and the covenants, representations and warranties to be made
in connection therewith. Accordingly, upon execution by the Company and the
Banks in the spaces provided for that purpose below, the Existing Credit
Agreement and exhibits thereto shall be amended and as so amended shall be
restated in their entirety, effective as of the date set forth above, as
follows:
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ARTICLE I
LOANS AND NOTES
1.1. Existing Loans. The Company acknowledges that it is indebted
to the Banks on the outstanding principal balance of the Existing Loans plus
accrued and unpaid interest thereon. Substantially concurrently herewith, the
Company is executing and delivering to the Banks the Notes hereinafter
identified and defined. Upon the execution and delivery of this Agreement and
the Notes, and satisfaction of the conditions precedent to effectiveness set
forth in Article III hereof (the date agreed to by the Company and the Banks on
which all such events have occurred is referred to herein as the "Effective
Date"), the Existing Loans evidenced by the Existing Notes shall automatically,
and without further action on the part of the Banks or the Company, become
evidenced by the Revolving Credit Notes issued under this Agreement to the Banks
and, to that extent, such Revolving Credit Notes are issued in renewal of, and
evidence the same indebtedness formerly evidenced by, the Existing Notes, as
well as evidencing all additional Revolving Credit Loans made pursuant to this
Agreement. All of the Existing Loans shall, for all purposes of this Agreement,
be treated as though they constituted Revolving Credit Loans under this
Agreement in an amount equal to the aggregate unpaid principal balance of the
Existing Loans outstanding on such date. If any accrued and unpaid interest and
commitment fees are outstanding in respect of any of the Existing Loans as of
the date that the Existing Loans become evidenced by the Revolving Credit Notes,
such accrued interest shall be evidenced by the Revolving Credit Notes and shall
be due and payable on the first interest payment date applicable to the
Revolving Credit Notes and such accrued fees shall be payable on the first date
on which the corresponding fees are due and payable under this Agreement. On the
Effective Date, any commitment of the Banks under the Existing Credit Agreement
shall terminate.
1.2. Commitments. The Company hereby requests that the Banks
agree (i) to make Revolving Credit Loans to the Company in accordance with their
respective Revolver Commitments set forth in Section 1.3 below, and (ii) to make
Line of Credit Loans to the Company in accordance with their respective Line of
Credit Commitments set forth in Section 1.4 below, all on the terms and
conditions set forth in this Agreement. The failure of any one or more of the
Banks to lend in accordance with its Commitment shall not relieve the other
Banks of their several obligations hereunder, but no Bank shall be liable in
respect to the obligations of any other Bank hereunder or be obligated in any
event to lend in excess of its Commitment.
1.3. Revolving Credit. From time to time prior to June 15, 2003
or the earlier termination in full of the Commitments (in either case the
"Revolver Termination Date"), and subject to all of the terms and conditions of
this Agreement, the Company may obtain loans from each of the Banks ("Revolving
Credit Loans"), pro rata according to each Bank's Percentage Interest of the
Aggregate Revolver Commitment, up to an aggregate principal amount equal to the
lesser of (i) $50,000,000 (the "Aggregate Revolver Commitment" and as to each
Bank's respective Percentage Interest thereof, its "Revolver Commitment"), as
terminated or reduced pursuant to Section 1.11, or (ii) the amount by which the
Aggregate
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Commitment exceeds the sum of (A) the outstanding principal amount of
all Line of Credit Loans and Swingline Loans, (B) the aggregate amount of Letter
of Credit Obligations, and (C) the aggregate face amount of outstanding
Commercial Paper; provided, however, that no Bank shall be required to make
Revolving Credit Loans in excess of its Revolver Commitment. The Revolver
Commitment and Percentage Interest of each Bank is set forth in the table below:
REVOLVER PERCENTAGE
NAME OF BANK COMMITMENT INTEREST
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Firstar Bank, National Association $20,000,000 40%
Bank One, NA 17,500,000 35%
▇▇▇▇▇▇ Trust and Savings Bank 12,500,000 25%
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Total: $50,000,000 100%
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The Company may repay the Revolving Credit Loans and reborrow hereunder from
time to time prior to the Revolver Termination Date. Each Revolving Credit Loan
from each Bank shall be in a minimum principal amount of $100,000 or a multiple
of $100,000 in excess of such amount (except as provided in Section 2.1 with
respect to Adjusted LIBOR Rate Loans), and shall be evidenced by a single
promissory note of the Company (a "Revolving Credit Note") in the form of
Exhibit 1.3 annexed hereto, payable to the order of the lending Bank. The
Revolving Credit Notes shall be executed by the Company and delivered to the
Banks on or prior to the Effective Date. Although the Revolving Credit Notes
shall be expressed to be payable in the full amounts specified above, the
Company shall be obligated to pay only the amounts of Revolving Credit Loans
actually disbursed to or for the account of the Company, together with interest
on the unpaid balance of sums so disbursed which remains outstanding from time
to time, at the rates and on the dates specified herein or in the Revolving
Credit Notes, together with the other amounts provided herein.
1.4. Line of Credit. From time to time prior to June 15, 2001 or
the earlier termination in full of the Commitments (in either case the "Line
Termination Date"), and subject to all of the terms and conditions of this
Agreement, the Company may obtain loans from each of the Banks ("Line of Credit
Loans"), pro rata according to each Bank's Percentage Interest of the Aggregate
Line Commitment, up to an aggregate principal amount equal to the lesser of (i)
$50,000,000 (the "Aggregate Line Commitment" and as to each Bank's respective
Percentage Interest thereof, its "Line Commitment"), as terminated or reduced
pursuant to section 1.11, or (ii) the amount by which the Aggregate Commitment
exceeds the sum of (A) the outstanding principal amount of all Revolving Credit
Loans and Swingline Loans, (B) the aggregate amount of Letter of Credit
Obligations, and (C) the aggregate face amount of outstanding Commercial Paper;
provided, however, that no Bank shall be required to make Line of Credit Loans
in excess of its Line Commitment. The Line Commitment and Percentage Interest of
each Bank is set forth in the table below:
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LINE PERCENTAGE
NAME OF BANK COMMITMENT INTEREST
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Firstar Bank, National Association $20,000,000 40%
Bank One, NA 17,500,000 35%
▇▇▇▇▇▇ Trust and Savings Bank 12,500,000 25%
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Total: $50,000,000 100%
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The Company may repay the Line of Credit Loans and reborrow hereunder from time
to time prior to the Line Termination Date. Each Line of Credit Loan from each
Bank shall be in a minimum principal amount of $100,000 or a multiple of
$100,000 in excess of such amount (except as provided in Section 2.1 with
respect to Adjusted LIBOR Rate Loans), and shall be evidenced by a single
promissory note of the Company (a "Line of Credit Note") in the form of Exhibit
1.4 annexed hereto, payable to the order of the lending Bank. The Line of Credit
Notes shall be executed by the Company and delivered to the Banks on or prior to
the Effective Date. Although the Line of Credit Notes shall be expressed to be
payable in the full amounts specified above, the Company shall be obligated to
pay only the amounts of Line of Credit Loans actually disbursed to or for the
account of the Company, together with interest on the unpaid balance of sums so
disbursed which remains outstanding from time to time, at the rates and on the
dates specified herein or in the Line of Credit Notes, together with the other
amounts provided herein.
1.5. Swingline Credit.
(a) From time to time prior to the Revolver Termination Date,
the Company may obtain Swingline Loans ("Swingline Loans") from the Agent (in
such capacity, the "Swingline Lender") up to an aggregate amount of $5,000,000
at any time outstanding, repay such Swingline Loans and reborrow hereunder;
provided, however, that the Swingline Lender shall not be obligated to advance
any Swingline Loan if (i) any Default or Event of Default has occurred and is
continuing, or (ii) after giving effect thereto, the sum of (A) the aggregate
principal amount of outstanding Loans, (B) all outstanding Letter of Credit
Obligations, and (C) the outstanding face amount of all Commercial Paper would
thereby exceed the Aggregate Commitment. Each Swingline Loan shall be in a
multiple of $1,000 and the Swingline Loans shall be evidenced by a single
promissory note of the Company (the "Swingline Note", and collectively with the
Revolving Credit Notes and the Line of Credit Notes, sometimes called the
"Notes") in the form of Exhibit 1.5 annexed hereto, payable to the order of the
Swingline Lender. Notwithstanding any other provision of this Agreement,
Swingline Loans shall at all times bear interest at either the Prime Rate or
rates quoted to the Company by the Swingline Lender at the times when such loans
are made.
(b) In its sole and absolute discretion, the Swingline Lender
may at any time after the occurrence and during the continuance of a Default or
Event of Default, on behalf of
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the Company (which hereby irrevocably authorizes the Swingline Lender to act on
its behalf for such purpose), request each Bank to make a Loan in an amount
corresponding to such Bank's Percentage Interest of the Aggregate Commitment on
the date such notice is given. Each Bank shall make the proceeds of its
requested Loan available to the Swingline Lender, in immediately available
funds, at the office of the Swingline Lender specified herein before 11:00 a.m.
(Milwaukee time) on the Business Day following the day such notice is given. The
proceeds of such Loans shall be immediately applied to repay the outstanding
Swingline Loans. All Loans made pursuant to this Section 1.5(b) shall be made as
Revolving Credit Loans, unless such Loans would exceed the limitations of
Section 1.3, in which case such Loans shall be made as Line of Credit Loans.
(c) If any Bank refuses or otherwise fails to make a Loan when
requested by the Swingline Lender pursuant to Section 1.5(b) above, such Bank
will, by the time and in the manner such Loan was to have been funded to the
Swingline Lender, purchase from the Swingline Lender an undivided participating
interest in the outstanding Swingline Loans in an amount equal to its Percentage
Interest of the Aggregate Commitment as applied to the principal amount of
Swingline Loans that were to have been repaid with such Loans. Each Bank that so
purchases a participation in a Swingline Loan shall thereafter be entitled to
receive its Percentage Interest of each payment of principal received on the
Swingline Loan and of interest received thereon accruing from the date such Bank
funded to the Swingline Lender its participation in such Swingline Loan.
1.6. Letters of Credit.
(a) Firstar Bank, National Association (in such capacity, the
"LOC Bank") shall from time to time when so requested by the Company issue
standby letters of credit (each a "Letter of Credit" and collectively the
"Letters of Credit") for the account of the Company up to an aggregate face
amount equal to the lesser of (i) $5,000,000 or (ii) the amount by which the
Aggregate Commitment exceeds the sum of (A) the outstanding principal amount of
all Loans, (B) the aggregate amount of all outstanding Letter of Credit
Obligations and (C) the aggregate face amount of outstanding Commercial Paper.
The LOC Bank hereby grants to each other Bank, and each other Bank hereby agrees
to take, a pro rata participation in each Letter of Credit issued hereunder and
all rights (including rights to reimbursement from the Company under paragraph
(c) below) and obligations associated therewith in accordance with such Bank's
Percentage Interest of the Aggregate Commitment. In the event of any drawing on
a Letter of Credit which is not reimbursed by or on behalf of the Company, each
Bank shall pay to the LOC Bank a proportionate amount of such drawing equal to
its Percentage Interest of the Aggregate Commitment. Such obligation of the
Banks shall be absolute and unconditional, regardless of whether any Default or
Event of Default shall then exist or any condition to the making of Loans in
Article III hereof shall not be satisfied. The LOC Bank shall divide the
proceeds of any reimbursement of a drawing on a Letter of Credit with the other
Banks that have made payment to the LOC Bank pursuant to the foregoing sentence,
pro rata according to the respective contributions of such other Banks.
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(b) The Company agrees to pay to the LOC Bank for the pro rata
benefit of the Banks a letter of credit fee in respect of each Letter of Credit
in the amount of the Applicable Margin per annum of the face amount of such
Letter of Credit. Such fees shall be payable quarterly in arrears on the first
day of each calendar quarter.
(c) The Company hereby unconditionally promises to pay to the
LOC Bank upon demand, without defense, setoff or counterclaim, the amount of
each drawing under Letters of Credit issued by the LOC Bank plus interest on the
foregoing from the date due at the Variable Rate.
(d) Delivery to the LOC Bank of documents strictly complying on
their face with the requirements of any Letter of Credit shall be sufficient
evidence of the validity, genuineness and sufficiency thereof and of the good
faith and proper performance of drawers and users of such Letter of Credit,
their agents and assignees; and the LOC Bank may rely thereon without liability
or responsibility with respect thereto, even if such documents should in fact
prove to be in any or all respects invalid, fraudulent or forged.
(e) The LOC Bank shall not be liable to the Company for (i)
honoring any requests for payment under any Letter of Credit which strictly
comply on their face with the terms of such Letter of Credit, (ii) any delay in
giving or failing to give any notice, (iii) errors, delays, misdeliveries or
losses in transmission of telegrams, cables, letters or other communications or
documents or items forwarded in connection with any Letter of Credit or any
draft, (iv) accepting and relying upon the name, signature or act of any party
who is or purports to be acting in strict compliance with the terms of any
Letter of Credit or (v) any other action taken or omitted by the LOC Bank in
good faith in connection with any Letter of Credit or any draft; except only
that the Company shall have a claim against the LOC Bank, and the LOC Bank shall
be liable to the Company, to the extent of damages suffered by the Company which
the Company proves were caused by (A) the LOC Bank's willful misconduct or gross
negligence or (B) the LOC Bank's willful and wrongful failure to pay under any
Letter of Credit after the presentation to it of documents strictly complying
with the terms and conditions of the Letter of Credit.
1.7. Commercial Paper.
(a) The Company may issue Commercial Paper from time to time,
including sales of Commercial Paper through one or more of the Banks acting as
placement agent pursuant to separate agreements between the Company and such
Bank or Banks. The aggregate face amount of all outstanding Commercial Paper
shall not at any time exceed the amount by which the Aggregate Commitment
exceeds the sum of (i) the outstanding principal amount of all Loans hereunder,
and (ii) the aggregate amount of all outstanding Letter of Credit Obligations.
(b) The Company will give written notice to the Agent in the
form of Exhibit 1.7 hereto on each Business Day on which there is any change in
the aggregate outstanding face amount of Commercial Paper setting forth the
aggregate principal amount of
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all Commercial Paper then outstanding after giving effect to the issuance or
repayment of Commercial Paper taking place on such Business Day.
1.8. Use of Proceeds. The Company represents, warrants and
agrees that:
(a) The proceeds of the Loans made hereunder will be used (i)
for the repayment at maturity of outstanding Commercial Paper, and (ii) for
working capital and other lawful corporate purposes.
(b) No part of the proceeds of any loan made hereunder will be
used to "purchase" or "carry" any "margin stock" or to extend credit to others
for the purpose of "purchasing" or "carrying" any "margin stock" (as such terms
are defined in the Regulation U of the Board of Governors of the Federal Reserve
System), and the assets of the Company and its Subsidiaries do not include, and
neither the Company nor any Subsidiary has any present intention of acquiring,
any such security.
(c) Notwithstanding anything in this Section 1.8 to the
contrary, the Company may use the proceeds of the Loans hereunder to repurchase
its own common stock in open market transactions; provided that the Company may
repurchase no more than the lesser of (i) Two Million (2,000,000) shares of its
own common stock, or (ii) shares having a total aggregate cost to the Company of
no more than Twenty-Five Million Dollars ($25,000,000).
(d) Shares of common stock repurchased by the Company pursuant
to paragraph (c) above do not represent more than 25% of the total value of the
Company's assets.
(e) The Banks represent that they have not relied upon and will
not rely upon the shares of common stock repurchased by the Company under
paragraph (c) above as collateral in extending credit under this Agreement.
1.9. Agent's Fees. The Company shall pay to the Agent, for the
Agent's own account, such fees as the Company and the Agent may agree upon
in writing for the Agent's services as such hereunder (the "Agent's Fees").
1.10. Commitment Fees. The Company shall pay to the Agent for the
pro rata accounts of the respective Banks commitment fees computed at a rate per
annum equal to the Applicable Margin on (i) as to the Revolving Credit, the
difference existing from time to time between (A) the amount of the Aggregate
Revolver Commitment (as reduced pursuant to Section 1.11), and (B) the
outstanding unpaid principal balance of the Revolving Credit Loans, and (ii) as
to the Line of Credit, the difference existing from time to time between (A) the
amount of the Aggregate Line Commitment (as reduced pursuant to Section 1.11)
and (B) the outstanding unpaid principal balance of the Line of Credit Loans.
Such commitment fees shall accrue for the period from the Effective Date to the
Revolver Termination Date, and shall be payable quarterly in arrears on the
later of (i) the twentieth day of the first month in each calendar quarter, or
(ii) five days after the Company's receipt of an invoice for such fees from
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the Agent. For purposes of calculating the commitment fees hereunder,
outstanding Swingline Loans, Letters of Credit and Commercial Paper shall not
constitute usage of the Commitments.
1.11. Termination or Reduction of the Commitments. The Company
shall have the right, upon five Business Days' prior written notice to each
Bank, to ratably reduce in part the Commitments on any interest payment date,
provided, however, that each partial reduction of the Commitment of each Bank
shall be in the amount of $1,000,000 or an integral multiple thereof, and
provided, further, that no reduction shall reduce the Aggregate Commitment to an
amount less than the aggregate amount of all Loans, Letters of Credit and
Commercial Paper outstanding hereunder at the time. The Aggregate Commitment of
all of the Banks may be terminated in whole at any time upon five Business Days'
prior written notice to each Bank.
1.12. Optional Prepayment. The Notes may be prepaid in whole or
in part at the option of the Company on any interest payment date without
premium or penalty; provided, however, that prepayment of an Adjusted LIBOR Rate
Loan prior to the last day of the Interest Period applicable thereto shall be
subject to the provisions of Sections 2.11 and 2.12. All prepayments shall be
accompanied by interest accrued on the amount prepaid through the date of
prepayment.
ARTICLE II
ADMINISTRATION OF CREDIT
2.1. Elective Rates of Interest on Loans. The unpaid principal
balance of the Notes may be comprised of Variable Rate Loans and/or Adjusted
LIBOR Rate Loans as elected by the Company from time to time in accordance with
the procedures set forth below; provided, however, that each Adjusted LIBOR Rate
Loan must be in a minimum amount of $1,000,000 or a multiple of $100,000 in
excess of that amount; provided, further, that no election of an Adjusted LIBOR
Rate Loan shall become effective if any Default or Event of Default has occurred
and is continuing; and provided, further, that no more than ten different
Interest Periods for Adjusted LIBOR Rate Loans may be outstanding at any one
time. Each notice of election of an Adjusted LIBOR Rate Loan shall be
irrevocable.
2.2. Borrowing Procedure. The Company will request a Loan
hereunder by written notice in the form of Exhibit 2.2 annexed hereto, or by
telephonic notice (which notice shall be confirmed in writing if the Agent so
requests), which notices will be irrevocable, to the Agent not later than 12:00
noon, Milwaukee time, on the proposed Borrowing Date, or, in the case of an
Adjusted LIBOR Rate Loan, not later than 10:30 a.m. (Milwaukee time) on the date
three Business Days before the proposed Borrowing Date. In the event of any
inconsistency between the telephonic notice and the written confirmation
thereof, the telephonic notice will control. Each such request will be effective
upon receipt by the Agent and will specify (i) the amount and type of the
requested Loan; (ii) the proposed Borrowing Date; (iii) whether such Loan will
bear interest at the Variable Rate or at the Adjusted LIBOR Rate; and (iv) in
the case of an Adjusted LIBOR Rate Loan, the Interest Period therefor.
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Upon its receipt of such notice from the Company, the Agent
shall give notice of such borrowing request to the other Banks not later than
1:30 p.m. (Milwaukee time) on the Borrowing Date. Each Bank shall have its
respective portion of the Loans available to the Agent in Milwaukee in
immediately available funds not later than 3:30 p.m., Milwaukee time, on the
Borrowing Date. Out of the funds received from each Bank for the making of the
Loans hereunder, the Agent will make a Loan to the Company in such amount on
behalf of such Bank. Notes and other required documents delivered to the Agent
for the account of each Bank shall be promptly delivered to such Bank, or in
accordance with instructions received from it, together with copies of such
other documents received in connection with the borrowing as such Bank shall
request.
Unless the Agent shall have been notified by telephone,
confirmed promptly thereafter in writing, by a Bank not later than 3:30 p.m.,
Milwaukee time, on a Borrowing Date that such Bank will not make available to
the Agent such Bank's pro rata share of the requested Loan, the Agent may assume
that such Bank has made such amount available to the Agent and, in reliance upon
such assumption, make available to the Company on such Borrowing Date a
corresponding amount. If and to the extent that such Bank, without giving such
notice, shall not have so made such amount available to the Agent, such Bank and
the Company severally agree to repay the Agent forthwith on demand such
corresponding amount 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 (i) in the case of the Company, the Variable Rate, and
(ii) in the case of such Bank, the Federal Funds Rate for each of the first
three days (or fraction thereof) after the date of demand and the Variable Rate
for each day (or fraction thereof) thereafter.
2.3. Conversion. The Company may elect from time to time, subject
to the terms and conditions of the Notes and this Agreement, to convert all or a
portion of a Variable Rate Loan into an Adjusted LIBOR Rate Loan or to convert
all or a portion of an Adjusted LIBOR Rate Loan into a Variable Rate Loan;
provided, however, that any conversion of an Adjusted LIBOR Rate Loan will occur
on the last day of the Interest Period applicable thereto.
2.4. Automatic Conversion. A Variable Rate Loan will continue as
a Variable Rate Loan unless and until converted into an Adjusted LIBOR Rate
Loan. At the end of the applicable Interest Period for an Adjusted LIBOR Rate
Loan, such Adjusted LIBOR Rate Loan will automatically be converted into a
Variable Rate Loan unless the Company shall have given the Agent notice in
accordance with Section 2.5 requesting that, at the end of such Interest Period,
all or a portion of such Adjusted LIBOR Rate Loan be continued as an Adjusted
LIBOR Rate Loan for an additional Interest Period.
2.5. Conversion and Continuation Procedure. The Company will give
the Agent written notice in the form of Exhibit 2.5 annexed hereto, or
telephonic notice (confirmed in writing if the Agent so requests), which notices
will be irrevocable, of each conversion of a Variable Rate Loan or continuation
of an Adjusted LIBOR Rate Loan not later than 10:30 a.m., Milwaukee time, on a
Business Day which is not less than three Business Days before the date of the
requested conversion or continuation, specifying (i) the requested
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date (which must be a Business Day) of such conversion or continuation; (ii) the
amount and type of the Loan to be converted or continued; (iii) whether such
Loan currently bears interest at the Variable Rate or the Adjusted LIBOR Rate;
and (iv) the duration of the Interest Period to be applicable thereto.
2.6. Basis for Determining Interest Rate Inadequate or Unfair. If
with respect to an Interest Period for any Adjusted LIBOR Rate Loan:
(i) any Bank determines in good faith (which determination will
be binding and conclusive on the Company) that by reason of
circumstances affecting the London interbank market adequate
and reasonable means do not exist for ascertaining the
applicable Adjusted LIBOR Rate; or
(ii) any Bank reasonably determines (which determination will be
binding and conclusive on the Company) that the Adjusted
LIBOR Rate will not adequately and fairly reflect the cost
of maintaining or funding such Adjusted LIBOR Rate Loan for
such Interest Period, or that the making or funding of
Adjusted LIBOR Rate Loans has become impracticable as a
result of an event occurring after the date of this
Agreement which in the opinion of such Bank materially
affects Adjusted LIBOR Rate Loans;
then, [a] such Bank will promptly notify the Company thereof, and [b] so long as
such circumstances continue, such Bank will not be under any obligation to make
any new Adjusted LIBOR Rate Loan so affected.
2.7. Changes in Law Rendering Certain Loans Unlawful. In the
event that any Regulatory Change should make it (or, in the good faith judgment
of a Bank, should raise substantial questions as to whether it is) unlawful for
such Bank to make, maintain or fund an Adjusted LIBOR Rate Loan, (i) such Bank
will promptly notify each of the other parties hereto; (ii) the obligation of
such Bank to make Adjusted LIBOR Rate Loans shall, upon the effectiveness of
such event, be suspended for the duration of such unlawfulness; and (iii) upon
such notice, any outstanding Adjusted LIBOR Rate Loan made by such Bank will
automatically convert into a Variable Rate Loan.
2.8. Increased Costs. If any Regulatory Change,
(a) shall subject any Bank to any tax, duty or other charge with
respect to any of its Loans hereunder, or shall change the basis of taxation of
payments to any Bank of the principal or interest on its loans hereunder, or any
other amounts due under this Agreement in respect of such Loans, or its
obligation to make Loans hereunder (except for changes in the rate of tax on the
overall net income of such Bank);
(b) shall impose, modify or make applicable any reserve
(including, without limitation, any reserve imposed by the Board of Governors of
the Federal Reserve System, but excluding any reserve included in the
determination of the Adjusted LIBOR Rate), special
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deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank; or
(c) shall impose on any Bank any other condition affecting its
Loans hereunder;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D or any other analogous law, rule or regulation, to impose a
cost on) such Bank of making or maintaining any Loans hereunder, or to reduce
the amount of any sum received or receivable by such Bank under this Agreement
and any document or instrument related hereto; then upon 15 days' notice from
such Bank (which notice shall be sent to the Agent and the Company and shall be
accompanied by a statement setting forth in reasonable detail the basis of such
increased cost or other effect on the Loans), the Company shall pay directly to
such Bank, on demand, such additional amount or amounts as will compensate such
Bank for such increased cost or such reduction.
2.9. Discretion of Banks as to Manner of Funding. Notwithstanding
any provision of this Agreement to the contrary, each Bank shall be entitled to
fund and maintain its funding of all or any part of its Loans hereunder in any
manner it sees fit.
2.10. Capital Adequacy. If any Regulatory Change affects the
treatment of any Loan hereunder of a Bank as an asset or other item included for
the purpose of calculating the appropriate amount of capital to be maintained by
such Bank or any corporation controlling such Bank and has the effect of
reducing the rate of return on such Bank's or such corporation's capital as a
consequence of the obligations of such Bank hereunder to a level below that
which such Bank or such corporation could have achieved but for such Regulatory
Change (taking into account such Bank's or such corporation's policies with
respect to capital adequacy) by an amount deemed in good faith by such Bank to
be material, then, upon 15 days' notice from such Bank, the Company shall pay to
such Bank, on demand, such additional amount or amounts as will compensate such
Bank or such corporation, as the case may be, for such reduction.
2.11. Limitation on Prepayment. A Variable Rate Loan may be
prepaid at the option of the Company in whole or in part on any interest payment
date without premium or penalty. An Adjusted LIBOR Rate Loan may be prepaid at
any time at the option of the Company; provided, however, that prepayment prior
to the last day of the Interest Period applicable thereto will require the
payment by Company of the amount (if any) required by Section 2.12.
2.12. Funding Losses. The Company hereby agrees that upon demand
by any Bank (which demand shall be sent to the Agent and the Company and shall
be accompanied by a statement setting forth in reasonable detail the basis for
the calculations of the amount being claimed) the Company will indemnify such
Bank against any loss or expense which such Bank may sustain or incur
(including, without limitation, any net loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such Bank
to fund or maintain Adjusted LIBOR Rate Loans and any loss of anticipated
return), as reasonably
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determined by such Bank, as a result of (i) any payment, prepayment or
conversion of any Adjusted LIBOR Rate Loan on a date other than the last day of
an Interest Period for such loan whether not required by any other provisions of
this Agreement, or (ii) any failure of the Company to obtain an Adjusted LIBOR
Rate Loan on a Borrowing Date or to convert a Variable Rate Loan to an Adjusted
LIBOR Rate Loan or to continue an Adjusted LIBOR Rate Loan at the end of any
Interest Period, as specified by the Company in a notice to the Agent as set
forth above.
2.13. Conclusiveness of Statements; Survival of Provisions.
Determinations and statements of any Bank pursuant to Sections 2.7, 2.8, 2.10
and 2.12 shall be rebuttably presumptive evidence of the correctness of the
determinations and statements and shall be conclusive absent manifest error. The
provisions of Section 2.8, 2.10 and 2.12 shall survive the obligation of the
Banks to extend credit under this Agreement and the repayment of the Loans.
2.14. Computations of Interest. All computations of interest and
other amounts due under the Notes and fees and other amounts due under this
Agreement will be based on a 360-day year using the actual number of days
occurring in the period for which such interest, fees or other amounts are
payable.
2.15. Payments. Interest on all Loans will be due and payable (i)
in the case of a Variable Rate Loan, quarterly beginning on the last Business
Day of the calendar quarter in which the Company obtains such Variable Rate Loan
and on the last Business Day of each calendar quarter thereafter; (ii) in the
case of an Adjusted LIBOR Rate Loan, on the last Business Day of the applicable
Interest Period; and (iii) in the case of any Loan, at the respective maturity
of such Loan, whether by acceleration or otherwise. All payments and prepayments
of principal, interest and fees (other than Agent's Fees) under this Agreement
and the Notes shall be made to the Agent prior to 12:00 noon, Milwaukee time, in
immediately available funds for the ratable account of the Banks and the holders
of the Notes then outstanding, as appropriate.
2.16. Application of Payments. The Agent shall promptly
distribute to each such Bank or holder pro rata the amount of principal,
interest or fees (other than Agent's Fees) received by the Agent for the account
of such holder. Any payment to the Agent for the account of a Bank or a holder
of a Note under this Agreement shall constitute a payment by the Company to such
Bank or holder of the amount so paid to the Agent, and any Notes or portions
thereof so paid shall not be considered outstanding for any purpose after the
date of such payment to the Agent.
2.17. Pro Rata Treatment. In the event that any Bank shall
receive from the Company or any other source (other than the sale of a
participation to another commercial lender in the ordinary course of business)
any payment (other than a payment of Agent's fees) of, on account of, or for any
obligation of the Company hereunder or under the Notes (whether pursuant to the
exercise of any right of set off, banker's lien, realization upon any security
held for or appropriated to such obligation, counterclaim or otherwise) other
than as above
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provided, then such Bank shall immediately purchase, without recourse and for
cash, an interest in the obligations of the same nature held by the other Banks
so that each Bank shall thereafter have a percentage interest in all of such
obligations equal to the percentage interest which such Bank held in the Notes
outstanding immediately before such payment; provided, that if any payment so
received shall be recovered in whole or in part from such purchasing Bank, the
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest. The Company specifically acknowledges and
consents to the preceding sentence.
2.18. Interest Following Event of Default. From and after the
occurrence and during the continuance of an Event of Default, the unpaid
principal amount of all Loans and all other amounts due and unpaid under this
Agreement and the Notes will bear interest until paid computed at a rate equal
to 2% per annum in excess of the rate or rates otherwise payable hereunder.
2.19. Deposits; Set Off. The Company grants each Bank, as
security for the Notes, a lien and security interest in any and all monies,
balances, accounts and deposits (including certificates of deposit) of the
Company at such Bank now or at any time hereafter. If any Event of Default
occurs hereunder or any attachment of any balance of the Company occurs, each
Bank may offset and apply any such security toward the payment of the Note or
Notes held by such Bank, whether or not such Note or Notes, or any part thereof,
shall then be due. Promptly upon its charging any account of the Company
pursuant to this section, such Bank shall give the Company notice thereof.
ARTICLE III
CONDITIONS OF BORROWING
Without limiting any of the other terms of this Agreement, none
of the Banks shall be required to make any Loan or extend any credit to the
Company hereunder:
3.1. Representations. Unless the representations and warranties
contained in Article IV hereof continue to be true and correct on the date of
such loan (except that the representations in Section 4.5 shall be made with
reference to the most recent audited consolidated financial statements of the
Company and its Subsidiaries delivered to the Banks pursuant to section 6.6(b));
no Default or Event of Default hereunder shall have occurred and be continuing;
and there has been no material adverse change in the business operations or
financial condition of the Company and its Subsidiaries, taken as a whole, since
September 30, 1999 (or, if later, the date of the most recent audited
consolidated financial statements of the Company delivered to the Banks pursuant
to Section 6.6(b)).
3.2. Guaranties. Unless prior to the initial Loan, each of
Agility, Incorporated, Electronic Assembly Corporation, Plexus International
Services, Inc., SeaMED Corporation, Technology Group, Inc., Plexus International
Sales & Logistics, LLC and Plexus QS LLC, (each a "Guarantor" and collectively
the "Guarantors"), shall have executed and
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delivered to each Bank a guaranty agreement in the form attached hereto as
Exhibit 3.2 (each a "Guaranty" and collectively the "Guaranties").
3.3. Insurance Certificate. Unless prior to the initial Loan the
Banks shall have received evidence satisfactory to them that the Company
maintains hazard and liability insurance coverage reasonably satisfactory to the
Banks.
3.4. Counsel Opinion. Unless prior to the initial Loan the Banks
shall have received from their special counsel and from Company's counsel,
satisfactory opinions as to such matters relating to the Company and its
Subsidiaries, the validity and enforceability of this Agreement, the Loans to be
made hereunder and the other documents required by this Article III as the Banks
shall reasonably require. The Company shall execute and/or deliver to the Banks
or their respective counsel such documents concerning its corporate status and
the authorization of such transactions as may be requested.
3.5. Proceedings Satisfactory. Unless all proceedings taken in
connection with the transactions contemplated by this Agreement, and all
instruments, authorizations and other documents applicable thereto, shall be
satisfactory in form and substance to the Banks and their respective counsel.
3.6. Violation of Environmental Laws. If in the opinion of the
Banks there exists any uncorrected violation by the Company or any Subsidiary of
an Environmental Law or any condition which requires, or may require, a cleanup,
removal or other remedial action by the Company or any Subsidiary under any
Environmental Laws.
3.7. Elamex Acquisition. Unless on or prior to the Effective Date
the Company shall have delivered to each of the Banks the items required by
Section 5.5(h)(ii) of the Existing Credit Agreement with respect to the
Company's acquisition of Elamex, S.A. de C.V.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to make the Loans and extend credit
as provided herein, the Company represents and warrants to the Banks as follows
as of the date of this Agreement and each request by the Company for a Loan or
other extension of credit hereunder shall constitute a representation and
warranty by the Company that all such representations and warranties remain true
on and as of the date of such requested Loan or extension of credit:
4.1. Organization. The Company and each of its Subsidiaries is a
corporation duly organized and existing in good standing or active status under
the laws of the jurisdiction under which it was incorporated, and has all
requisite power and authority, corporate or otherwise, to conduct its business
and to own its properties. Set forth in Schedule 4.1 hereto is a complete and
accurate list of all of its Subsidiaries, showing as of the date hereof (as to
each such Subsidiary) the jurisdiction of its incorporation, the number of
shares of each class of
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capital stock authorized, the number outstanding and the percentage of the
outstanding shares of each such class owned (directly or indirectly) by the
Company. All of the outstanding stock of each Subsidiary has been legally and
validly issued, is fully paid and non-assessable except as provided by Section
180.0622 of the Wisconsin Business Corporation Law, and is owned by the Company
free and clear of all pledges, liens, security interests and other charges or
encumbrances. The Company and each of its Subsidiaries is duly licensed or
qualified to do business in all jurisdictions in which such qualification is
required, and failure to so qualify could have a material adverse effect on the
property, financial condition or business operations of the Company or any
Subsidiary. All accounts receivable and inventory now existing or hereafter
arising in connection with the Company's Mexican operations are held and will
continue to be held by Plexus International Sales & Logistics, LLC.
4.2. Authority. The execution, delivery and performance of this
Agreement and the Notes are within the corporate powers of the Company, have
been duly authorized by all necessary corporate action and do not and will not
(i) require any consent or approval of the stockholders of the Company, (ii)
violate any provision of the articles of incorporation or by-laws of the Company
or of any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to the Company
or any Subsidiary; (iii) require the consent or approval of, or filing or
registration with, any governmental body, agency or authority; or (iv) result in
a breach of or constitute a default under, or result in the imposition of any
lien, charge or encumbrance upon any property of the Company or any Subsidiary
pursuant to, any indenture or other agreement or instrument under which the
Company or any Subsidiary is a party or by which it or its properties may be
bound or affected. This Agreement constitutes, and each of the Notes and Loan
Documents when executed and delivered hereunder will constitute, legal, valid
and binding obligations of the Company or other signatory enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy or similar laws affecting the enforceability of creditors' rights
generally.
4.3. Investment Company Act of 1940. Neither the Company nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
4.4. Employee Retirement Income Security Act. All Plans are in
compliance in all material respects with the applicable provisions of ERISA.
Neither the Company nor any Subsidiary has incurred any material "accumulated
funding deficiency" within the meaning of section 302(a)(2) of ERISA in
connection with any Plan. There has been no Reportable Event for any Plan, the
occurrence of which would have a materially adverse effect on the Company or any
Subsidiary, nor has the Company or any Subsidiary incurred any material
liability to the Pension Benefit Guaranty Corporation under section 4062 of
ERISA in connection with any Plan. There are no Unfunded Liabilities relating to
any Plans. Neither the Company nor any Subsidiary is a member of any
Multiemployer Plan.
4.5. Financial Statements. The audited consolidated balance sheet
of the Company and its Subsidiaries as of September 30, 1999, and the audited
consolidated
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statements of income, changes in shareholders' equity and cash flows of the
Company and its Subsidiaries for the year ended on that date, as certified by
PricewaterhouseCoopers LLP and heretofore furnished to the Banks, are correct
and complete and truly represent the financial condition of the Company and such
Subsidiaries as of September 30, 1999, and the results of their operations for
the fiscal year ended on that date. Since such date there has been no material
adverse change in the property, financial condition or business operations of
the Company or any Subsidiary.
4.6. Dividends and Redemptions. The Company has not, since
September 30, 1999, paid or declared any dividend, or made any other
distribution on account of any shares of any class of its stock, or redeemed,
purchased or otherwise acquired, directly or indirectly, any shares of any class
of its stock, except as permitted by this Agreement. The Company is not a party
to any agreement which may require it to redeem, purchase or otherwise acquire
any shares of any class of its stock.
4.7. Liens. The Company and each Subsidiary has good and
marketable title to all of its assets, real and personal, free and clear of all
liens, security interests, mortgages and encumbrances of any kind, except
Permitted Liens. All owned and leased buildings and equipment of the Company and
its Subsidiaries are in good condition, repair and working order in all material
respects and, to the best of the Company's knowledge and belief, conform in all
material respects to all applicable laws, regulations and ordinances.
4.8. Contingent Liabilities. Neither the Company nor any
Subsidiary has any guarantees or other contingent liabilities outstanding
(including, without limitation, liabilities by way of agreement, contingent or
otherwise, to purchase, to provide funds for payment, to supply funds to or
otherwise invest in the debtor or otherwise to assure the creditor against
loss), except those permitted by Section 5.8 hereof.
4.9. Taxes. Except as expressly disclosed in the financial
statements referred to in Section 4.5 above, neither the Company nor any
Subsidiary has any material outstanding unpaid tax liability (except for taxes
which are currently accruing from current operations and ownership of property,
which are not delinquent), and no tax deficiencies have been proposed or
assessed against the Company or any Subsidiary. The most recent completed audit
of the Company's federal income tax returns was for the Company's income tax
year ending September 30, 1993, and all taxes shown by such returns (together
with any adjustments arising out of such audit, if any) have been paid.
4.10. Absence of Litigation. Neither the Company nor any
Subsidiary is a party to any litigation or administrative proceeding, nor so far
as is known by the Company is any litigation or administrative proceeding
threatened against it or any Subsidiary, which in either case (i) relates to the
execution, delivery or performance of this Agreement, the Notes, or any of the
Loan Documents, (ii) could, if adversely determined, cause any material adverse
change in the property, financial condition or the conduct of the business of
the Company or any Subsidiary, (iii) asserts or alleges the Company or any
Subsidiary violated Environmental Laws, (iv) asserts or alleges that Company or
any Subsidiary is required to cleanup, remove,
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or take remedial or other response action due to the disposal, depositing,
discharge, leaking or other release of any hazardous substances or materials,
(v) asserts or alleges that Company or any Subsidiary is required to pay all or
a portion of the cost of any past, present or future cleanup, removal or
remedial or other response action which arises out of or is related to the
disposal, depositing, discharge, leaking or other release of any hazardous
substances or materials by Company or any Subsidiary.
4.11. Absence of Default. No event has occurred which either of
itself or with the lapse of time or the giving of notice or both, would give any
creditor of the Company or any Subsidiary the right to accelerate the maturity
of any indebtedness of the Company or any Subsidiary for borrowed money. Neither
the Company nor any Subsidiary is in default under any other lease, agreement or
instrument, or any law, rule, regulation, order, writ, injunction, decree,
determination or award, non-compliance with which could materially adversely
affect its property, financial condition or business operations.
4.12. No Burdensome Agreements. Neither the Company nor any
Subsidiary is a party to any agreement, instrument or undertaking, or subject to
any other restriction, (i) which materially adversely affects or may in the
future so affect the property, financial condition or business operations of the
Company or any Subsidiary, or (ii) under or pursuant to which the Company or any
Subsidiary is or will be required to place (or under which any other person may
place) a lien upon any of its properties securing indebtedness either upon
demand or upon the happening of a condition, with or without such demand.
4.13. Trademarks, etc. The Company and its Subsidiaries possess
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 might result in a material adverse
effect on the Company or any Subsidiary.
4.14. Full Disclosure. No information, exhibit or report
furnished by the Company or any Subsidiary to any Bank in connection with the
negotiation or execution of this Agreement contained any material misstatement
of fact as of the date when made or omitted to state a material fact or any fact
necessary to make the statements contained therein not misleading as of the date
when made.
4.15. Fiscal Year. The fiscal year of the Company and each
Subsidiary ends on September 30 of each year.
4.16. Environmental Conditions. To the Company's knowledge after
reasonable investigation, there are no conditions existing currently or likely
to exist during the term of this Agreement which would subject the Company or
any Subsidiary to damages, penalties, injunctive relief or cleanup costs under
any Environmental Laws or which require or are likely to require cleanup,
removal, remedial action or other response pursuant to Environmental Laws by the
Company or any Subsidiary. Neither the Company nor any Subsidiary is subject to
any judgment, decree, order or citation related to or arising out of
Environmental Laws and neither the Company nor any Subsidiary has been named or
listed as
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a potentially responsible party by any governmental body or agency in a matter
arising under any Environmental Laws.
ARTICLE V
NEGATIVE COVENANTS
While any part of the credit granted to the Company is available
and while any part of the principal of or interest on any Note remains unpaid or
any Letter of Credit remains outstanding, the Company shall not do any of the
following, or permit any Subsidiary to do any of the following, without the
prior written consent of the Required Banks:
5.1. Restriction of Indebtedness. Create, incur, assume or have
outstanding any indebtedness for borrowed money or the deferred purchase price
of any asset (including obligations under Capitalized Leases), except:
(a) the Notes issued under this Agreement;
(b) other indebtedness outstanding on September 30, 1999, and
shown on the financial statements referred to in Section 4.5 above, including
renewals, extensions and refundings of such indebtedness, provided that the
principal amount of such indebtedness shall not be increased;
(c) indebtedness secured by liens described in clause (iv) of
the definition of Permitted Liens, provided such indebtedness does not exceed an
aggregate of $15,000,000 outstanding at any one time;
(d) unsecured indebtedness which has been subordinated in right
of payment to the Company's obligations under this Agreement and the Notes in a
manner satisfactory to the Banks; and
(e) Commercial Paper issued within the limitations of Section
1.7.
5.2. Restriction on Liens. Create or permit to be created or
allow to exist any mortgage, pledge, encumbrance or other lien upon or security
interest in any property or asset now owned or hereafter acquired by the Company
or any Subsidiary, except Permitted Liens.
5.3. Sale and Leaseback. Enter into any agreement providing for
the leasing by the Company or a Subsidiary of property which has been or is to
be sold or transferred by the Company or a Subsidiary to the lessor thereof, or
which is substantially similar in purpose to property so sold or transferred,
except that foreign Subsidiaries of the Company may enter into sale-leaseback
transactions with respect to their fixed assets so long as the total cash
consideration received by such Subsidiaries for such assets does not exceed
$7,000,000 in the aggregate.
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5.4. Dividends and Redemptions. Pay or declare any dividend, or
make any other distribution on account of any shares of any class of its stock,
or redeem, purchase or otherwise acquire directly or indirectly, any shares of
any class of its stock, except for:
(a) dividends payable in shares of stock of the Company;
(b) dividends paid to the Company by a wholly-owned Subsidiary;
(c) redemptions of stock of the Company made with the proceeds
of sales of stock of the Company occurring within 30 days of the date of any
such redemption;
(d) so long as no Default or Event of Default has occurred and
is continuing, cash dividends paid by the Company which do not exceed in the
aggregate for all such dividends paid after September 30, 1999, 40% of the
Consolidated Net Earnings of the Company and its Subsidiaries, after subtracting
all net losses, accumulated during the period after September 30, 1999 and prior
to the payment of the dividend with respect to which the determination is made,
taken as a single accounting period; and
(e) open market repurchases of common stock of the Company in
accordance with Section 1.8(c) hereof.
5.5. Acquisitions and Investments. Acquire any other business or
make any loan, advance or extension of credit to, or investment in, any other
person, corporation, partnership or other entity, including investments acquired
in exchange for stock or other securities or obligations of any nature of the
Company or any Subsidiary, or create or participate in the creation of any
Subsidiary or joint venture, except:
(a) investments in accounts, chattel paper, and notes
receivable, arising or acquired in the ordinary course of business;
(b) investments in bank certificates of deposit (but only with
FDIC-insured commercial banks having a combined capital and surplus in excess of
$1 billion), open market commercial paper maturing within one year having the
highest rating of either Standard & Poors Corporation or ▇▇▇▇▇'▇ Investors
Service, Inc., U.S. Treasury Bills subject to repurchase agreements and
short-term obligations issued or guaranteed by the United States Government or
any agency thereof;
(c) investments in open-end diversified investment companies of
recognized financial standing investing solely in short-term money market
instruments consisting of securities issued or guaranteed by the United States
Government, its agencies or instrumentalities, time deposits and certificates of
deposit issued by domestic banks or London branches of domestic banks, bankers
acceptances, repurchase agreements, high grade commercial paper and the like;
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(d) loans and advances made to suppliers, employees, officers
and agents of the Company and its Subsidiaries in the ordinary course of
business, consistent with the Company's past practices;
(e) investments in a Guarantor by the Company and investments in
the Company by a Subsidiary;
(f) other investments outstanding on September 30, 1999, and
shown on the financial statements referred to in Section 4.5 above, provided
that such investments shall not be increased;
(g) other investments and acquisitions, provided, however, that
after giving effect to any such investment or acquisition, (i) the Company on a
pro forma basis shall be in compliance with the financial covenants in Section
6.1 hereof, and (ii) before making any such investment or acquisition the
Company shall furnish each of the Banks a certificate of the Chief Financial
Officer or Vice President - Finance of the Company, together with preliminary
pro forma financial calculations in reasonable detail giving effect to such
investment or acquisition, and demonstrating compliance with such financial
covenants in the current fiscal year; and
(h) investments in taxable and tax-exempt securities of state
and local governments maturing within one year and having the highest rating of
either Standard & Poor's Ratings Services or ▇▇▇▇▇'▇ Investors Service, Inc.
In the event that the Company shall create or acquire a Subsidiary as permitted
by this Section 5.5, (i) if such Subsidiary is a domestic Subsidiary, the
Company shall cause such Subsidiary to execute and deliver to the Banks a
Guaranty in substantially the form of Exhibit 3.2, and (ii) if such Subsidiary
is a foreign Subsidiary, and if requested by the Banks, the Company shall
arrange for the pledge to the Agent, for the benefit of the Banks, of not more
than 65% of the shares of capital stock of such Subsidiary as security for the
Company's obligations hereunder.
5.6. Liquidation; Merger; Disposition of Assets. Liquidate or
dissolve; or merge with or into or consolidate with or into any other
corporation or entity except a merger of a wholly-owned Subsidiary into the
Company or another wholly-owned Subsidiary; or sell, lease, transfer or
otherwise dispose of all or any substantial part of its property, assets or
business, or any stock of any Subsidiary, except (i) sales made in the ordinary
course of business, and (ii) sales of accounts receivable in connection with
asset securitization transactions; provided, however, that (A) the aggregate
face amount of accounts receivable included in such asset securitization
transactions shall not at any time exceed $50,000,000, and (B) before engaging
in any such asset securitization transaction the Company shall furnish each of
the Banks a certificate of the Chief Financial Officer or Vice President -
Finance of the Company, together with preliminary pro forma financial
calculations in reasonable detail giving effect to such sale of accounts
receivable, and demonstrating compliance with the financial covenants in Section
6.1 hereof.
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5.7. Accounts Receivable. Discount or sell with recourse, or
sell for less than the face amount thereof, any of its notes or accounts
receivable, whether now owned or hereafter acquired, except as permitted by
Section 5.6.
5.8. Contingent Liabilities. Guarantee or become a surety or
otherwise contingently liable (including, without limitation, liable by way of
agreement, contingent or otherwise, to purchase, to provide funds for payment,
to supply funds to or otherwise invest in the debtor or otherwise to assure the
creditor against loss) for any obligations of others, except (i) the Guaranties,
(ii) pursuant to the deposit and collection of checks and similar items in the
ordinary course of business, and (iii) guaranties by the Company of the trade
obligations of the Guarantors incurred in the ordinary course of business.
5.9. Affiliates. Suffer or permit any transaction with any
Affiliate, except on terms not less favorable to the Company or Subsidiary than
would be usual and customary in similar transactions with non-affiliated
persons.
5.10. Fiscal Year. Change its fiscal year.
5.11. Derivatives. Enter into any interest rate, commodity or
foreign currency exchange, swap, collar, floor, cap, option or similar agreement
except to hedge against actual interest rate, foreign currency or commodity
exposure. Notwithstanding the foregoing or any other provision of this
Agreement, the Company may from time to time enter into hedging arrangements of
the type described above with one or more of the Banks (or their affiliates),
provided that the Company's obligations in respect of such hedging arrangements
shall at all times be unsecured.
5.12. Treasury Stock. Notwithstanding any other provision of this
Agreement, Sections 5.2 and 5.6 of this Agreement shall not apply to shares of
the Company's common stock repurchased in accordance with Section 1.8(c) and
held by the Company as treasury stock.
ARTICLE VI
AFFIRMATIVE COVENANTS
While any part of the credit granted to the Company is available
and while any part of the principal of or interest on any Note remains unpaid or
any Letter of Credit remains outstanding, and unless waived in writing by the
Required Banks, the Company shall:
6.1. Financial Status. Maintain:
(a) Consolidated Tangible Net Worth at all times in the amount
of at least $100,000,000 plus the sum of (i) 60% of Consolidated Net Earnings
(if a positive amount) for each fiscal quarter ending after the Effective Date
(beginning with the fiscal quarter ending June 30, 2000) and (ii) 75% of net
proceeds of any sales of capital stock or equity offerings by the Company; and
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(b) Consolidated Total Debt to EBITDA Ratio as of each fiscal
quarter-end of not more than 2.00 to 1.00 for the four fiscal quarters then
ended; and
(c) Consolidated Fixed Charge Coverage Ratio as of each fiscal
quarter-end of at least 3.00 to 1.00 for the four fiscal quarters then ended.
6.2. Insurance. Maintain insurance in such amounts and against such
risks as is customary by companies engaged in the same or similar businesses and
similarly situated.
6.3. Corporate Existence; Obligations. Do, and cause each Subsidiary to
do, all things necessary to: (i) maintain its corporate existence (except for
mergers permitted by Section 5.6) and all rights and franchises necessary or
desirable for the conduct of its business; (ii) comply with all applicable laws,
rules, regulations and ordinances, and all restrictions imposed by governmental
authorities, including those relating to environmental standards and controls;
and (iii) pay, before the same become delinquent and before penalties accrue
thereon, all taxes, assessments and other governmental charges against it or its
property, and all of its other liabilities, except to the extent and so long as
the same are being contested in good faith by appropriate proceedings in such
manner as not to cause any material adverse effect upon its property, financial
condition or business operations, with adequate reserves provided for such
payments.
6.4. Business Activities. Continue to carry on its business activities
in substantially the manner such activities are conducted on the date of this
Agreement and not make any material change in the nature of its business.
6.5. Properties. Keep and cause each Subsidiary to keep its properties
(whether owned or leased) in good condition, repair and working order, ordinary
wear and tear and obsolescence excepted, and make or cause to be made from time
to time all necessary repairs thereto (including external or structural repairs)
and renewals and replacements thereof.
6.6. Accounting Records; Reports. Maintain and cause each Subsidiary to
maintain a standard and modern system for accounting in accordance with
generally accepted principles of accounting consistently applied throughout all
accounting periods and consistent with those applied in the preparation of the
financial statements referred to in Section 4.5; and furnish to the Banks such
information respecting the business, assets and financial condition of the
Company and its Subsidiaries as any Bank may reasonably request and, without
request, furnish to the Banks:
(a) Within 45 days after the end of each fiscal quarter of the Company
(i) consolidated and consolidating balance sheets of the Company and all of its
Subsidiaries as of the close of such quarter and of the comparable quarter in
the preceding fiscal year; and (ii) consolidated and consolidating statements of
income and cash flow of the Company and all of its Subsidiaries for such quarter
and for that part of the fiscal year ending with such quarter and for the
corresponding periods of the preceding fiscal year; all in reasonable detail and
certified as true and correct (subject to audit and normal year-end adjustments)
by the Chief Financial Officer or the Vice President-Finance of the Company; and
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(b) As soon as available, and in any event within 90 days after the
close of each fiscal year of the Company, a copy of the audit report for such
year and accompanying consolidated financial statements of the Company and its
Subsidiaries, as prepared by independent public accountants of recognized
standing selected by the Company and satisfactory to the Required Banks, which
audit report shall be accompanied by an opinion of such accountants, in form
satisfactory to the Required Banks, to the effect that the same fairly present
the financial condition of the Company and its Subsidiaries and the results of
its and their operations as of the relevant dates thereof; and
(c) As soon as available, copies of all reports or materials submitted
or distributed to shareholders of the Company or filed with the SEC or other
governmental agency having regulatory authority over the Company or any
Subsidiary or with any national securities exchange; and
(d) Promptly after the furnishing thereof, copies of any statement or
report furnished to any other holder of obligations of the Company or any
Subsidiary pursuant to the terms of any indenture, loan or similar agreement and
not otherwise required to be furnished to the Banks pursuant to any other clause
of this Section 6.6; and
(e) Promptly, and in any event within 10 days, after Company has
knowledge thereof a statement of the Chief Financial Officer or Vice President -
Finance of the Company describing: (i) any event which, either of itself or with
the lapse of time or the giving of notice or both, would constitute a Default
hereunder or a default under any other material agreement to which the Company
or any Subsidiary is a party, together with a statement of the actions which the
Company proposes to take with respect thereto; (ii) any pending or threatened
litigation or administrative proceeding of the type described in Section 4.10;
and (iii) any fact or circumstance which is materially adverse to the property,
financial condition or business operations of the Company or any Subsidiary; and
(f) (i) Promptly, and in any event within 30 days, after the Company
knows that any Reportable Event with respect to any Plan has occurred, a
statement of the Chief Financial Officer or Vice President - Finance of the
Company setting forth details as to such Reportable Event and the action which
the Company proposes to take with respect thereto, together with a copy of any
notice of such Reportable Event given to the Pension Benefit Guaranty
Corporation if a copy of such notice is available to the Company, (ii) promptly
after the filing thereof with the Internal Revenue Service, copies of each
annual report with respect to each Plan administered by the Company and (iii)
promptly after receipt thereof, a copy of any notice (other than a notice of
general application) the Company, any Subsidiary or any member of the Controlled
Group may receive from the Pension Benefit Guaranty Corporation or the Internal
Revenue Service with respect to any Plan administered by the Company.
The financial statements referred to in (a) and (b) above shall be
accompanied by a certificate by the Chief Financial Officer or Vice President -
Finance of the Company setting forth detailed computations demonstrating
compliance with Section 6.1 and further stating that, as of the close of the
last period covered in such financial statements, no condition
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or event had occurred which constitutes a Default or an Event of Default
hereunder (or if there was such a condition or event, specifying the same).
6.7. Inspection of Records. Permit representatives of the Banks to
visit and inspect any of the properties and examine any of the books and records
of the Company and its Subsidiaries at any reasonable time and as often as may
be reasonably desired.
6.8. Compliance with Environmental Laws. Timely comply, and cause each
Subsidiary to comply, with all applicable Environmental Laws.
6.9. Orders, Decrees and Other Documents. Provide to the Banks,
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 Company or any Subsidiary or a cleanup,
removal, remedial action, or other response by or on the part of the Company or
any Subsidiary under Environmental Laws, or which seeks damages or civil,
criminal or punitive penalties from Company or any Subsidiary for an alleged
violation of Environmental Laws, which in any case might reasonably be expected
to have a material adverse effect on the business, assets or financial condition
of the Company or any Subsidiary.
6.10. Agreement to Update. Advise the Banks in writing as soon as
Company becomes aware of any condition or circumstance which makes the
environmental warranties contained in this Agreement incomplete or inaccurate.
6.11. Environmental Audit. Upon the occurrence or existence of any
event, condition or circumstance which would require notification from the
Company or any Subsidiary pursuant to Section 6.9 or Section 6.10 hereof, at the
request of any Bank the Company shall permit, at its expense, an Environmental
Audit solely for the benefit of the Banks, to be conducted by the Banks or an
independent agent selected by the Banks; provided, however, that the initial
stage of such Environmental Audit shall be limited to those activities normally
included in a "Phase I" investigation, and if such initial investigation
discloses the possibility of a condition which, in the reasonable judgment of
the Banks, may subject the Company or any Subsidiary to a material liability,
cost or expense, then such Environmental Audit shall be expanded to include
those activities normally associated with a "Phase II" investigation.
ARTICLE VII
DEFAULTS
7.1. Defaults. The occurrence of any one or more of the following
events shall constitute an "Event of Default":
(a) The Company shall fail to pay (i) any interest due on any Note, or
any other amount payable hereunder (other than a principal payment on any Note)
by five days after the same becomes due; or (ii) any principal amount due on any
Note when due;
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(b) The Company shall default in the performance or observance of any
agreement, covenant, condition, provision or term contained in Article V or
Section 6.1 of this Agreement;
(c) The Company or other signatory other than any Bank shall default in
the performance or observance of any of the other agreements, covenants,
conditions, provisions or terms in this Agreement or any Loan Document
continuing for a period of thirty days after written notice thereof is given to
the Company by any of the Banks;
(d) Any representation or warranty made by the Company herein or any
certificate delivered pursuant hereto, or any financial statement delivered to
any Bank hereunder, shall prove to have been false in any material respect as of
the time when made or given;
(e) The Company or any Subsidiary shall fail to pay as and when due and
payable (whether at maturity, by acceleration or otherwise) all or any part of
the principal of or interest on any indebtedness of or assumed by it having an
outstanding principal balance of $100,000 or more, or of the rentals due under
any lease or sublease requiring aggregate rental payments of $100,000 or more,
or of any other obligation for the payment of money in the amount of $100,000 or
more, and such default shall not be cured within the period or periods of grace,
if any, specified in the instruments governing such obligations; or default
shall occur under any evidence of, or any indenture, lease, sublease, agreement
or other instrument governing such obligations, and such default shall continue
for a period of time sufficient to permit the acceleration of the maturity of
any such indebtedness or other obligation or the termination of such lease or
sublease;
(f) A final judgment which, together with all other outstanding final
judgments against the Company and its Subsidiaries, or any of them, exceeds an
aggregate of $50,000 shall be entered against the Company or any Subsidiary and
shall remain outstanding and unsatisfied, unbonded, unstayed or uninsured after
60 days from the date of entry thereof; or any judgment which exceeds $1,000,000
shall be entered against the Company or any Subsidiary and shall not be covered,
for the benefit of the Company or such Subsidiary, by insurance provided by a
financially responsible insurance carrier;
(g) The Company, any Subsidiary or any Guarantor shall: (i) become
insolvent; or (ii) be unable, or admit in writing its inability to pay its debts
as they mature; or (iii) make a general assignment for the benefit of creditors
or to an agent authorized to liquidate any substantial amount of its property;
or (iv) become the subject of an "order for relief" within the meaning of the
United States Bankruptcy Code; or (v) become the subject of a creditor's
petition for liquidation, reorganization or to effect a plan or other
arrangement with creditors; or (vi) apply to a court for the appointment of a
custodian or receiver for any of its assets; or (vii) have a custodian or
receiver appointed for any of its assets (with or without its consent); or
(viii) have any of its assets garnished, seized or forfeited, or threatened with
garnishment, seizure or forfeiture; or (ix) otherwise become the subject of any
insolvency
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proceedings or propose or enter into any formal or informal composition or
arrangement with its creditors;
(h) This Agreement, any Note or any Loan Document shall, at any time
after their respective execution and delivery, and for any reason, cease to be
in full force and effect or be declared null and void, or be revoked or
terminated, or the validity or enforceability thereof or hereof shall be
contested by the Company, any Guarantor or any shareholder of the Company, or
the Company or any Guarantor shall deny that it has any or further liability or
obligation thereunder or hereunder, as the case may be; or
(i) Any Reportable Event, which the Required Banks determine in good
faith to constitute grounds for the termination of any Plan by the Pension
Benefit Guaranty Corporation or for the appointment by the appropriate United
States District Court of a trustee to administer any Plan, shall have occurred,
or any Plan shall be terminated within the meaning of Title IV of ERISA, or a
trustee shall be appointed by the appropriate United States District Court to
administer any Plan, or the Pension Benefit Guaranty Corporation shall institute
proceedings to terminate any Plan or to appoint a trustee to administer any
Plan; or the Company or any Subsidiary shall become a member of a Multiemployer
Plan.
7.2. Termination of Commitment and Acceleration of Obligations. Upon
the occurrence of any Event of Default:
(a) As to any Event of Default (other than an Event of Default under
Section 7.1(g)) and at any time thereafter, and in each case, the Required Banks
(or the Agent with the written consent of the Required Banks) may, by written
notice to the Company, immediately terminate the obligation of the Banks to make
Loans and of the LOC Bank to issue Letters of Credit hereunder and/or declare
the unpaid principal balance of the Notes, together with all interest accrued
thereon, to be immediately due and payable; and the unpaid principal balance of
and accrued interest on such Notes shall thereupon be due and payable without
further notice of any kind, all of which are hereby waived, and notwithstanding
anything to the contrary herein or in the Notes contained;
(b) As to any Event of Default under Section 7.1(g), the obligation of
the Banks to make Loans and of the LOC Bank to issue Letters of Credit hereunder
shall immediately terminate and the unpaid principal balance of all Notes,
together with all interest accrued thereon, shall immediately and forthwith be
due and payable, all without presentment, demand, protest, or further notice of
any kind, all of which are hereby waived, notwithstanding anything to the
contrary herein or in the Notes contained; and
(c) As to each Event of Default, the Banks shall have all the remedies
for default provided by the Loan Documents, as well as applicable law.
(d) In the event that the unpaid principal balance of the Notes becomes
immediately due and payable pursuant to this Section 7.2, the Company shall pay
to the LOC Bank the sum of the largest drafts which could then or thereafter be
drawn under all outstanding Letters of Credit, which sum the LOC Bank may hold
for the account of the
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Company, without interest, for the purpose of paying any draft presented, with
the excess, if any, to be returned to the Company upon termination or expiration
of such Letters of Credit.
7.3. Amendments, Etc. No waiver, amendment, settlement or compromise of
any of the rights of any Bank under this Agreement, any Note or any of the Loan
Documents shall be effective for any purpose unless it is in a written
instrument executed and delivered by the parties authorized to act by this
Section 7.3. Subject to the provisions of this Section 7.3, the Required Banks
(or the Agent with the written consent of the Required Banks) and the Company
may enter into agreements supplemental hereto for the purpose of adding or
modifying any provisions to this Agreement, the Notes, or the Loan Documents or
changing in any manner the rights of the Banks or the Company hereunder or
thereunder or waiving any Event of Default hereunder; provided, however, that no
such supplemental agreement shall, without the consent of all of the Banks:
(a) Extend the maturity of any Note or reduce the principal amount
thereof, or reduce the rate or amount or change the time of payment of
principal, interest or fees payable on any Note or otherwise under this
Agreement;
(b) Amend the definition of Required Banks;
(c) Extend the Termination Date, or increase the amount of the Revolver
Commitment or the Line Commitment of any Bank hereunder, or permit the Company
to assign its rights under this Agreement;
(d) Alter the provisions of Section 2.19 of this Agreement;
(e) Amend any provision of this Agreement requiring a pro rata sharing
among the Banks;
(f) Amend this Section 7.3; or
(g) Release any of the Guaranties.
No amendment of any provision of this Agreement relating to the Agent
shall be effective without the written consent of the Agent. No amendment of any
provision of this Agreement relating to the Swingline Credit shall be effective
without the written consent of the Swingline Lender. No amendment of any
provision of this Agreement relating to the Letters of Credit shall be effective
without the written consent of the LOC Bank.
ARTICLE VIII
THE AGENT
8.1. Appointment and Powers. Each of the Banks hereby appoints Firstar
Bank, National Association as Agent for the Banks hereunder, and authorizes the
Agent to take such action as Agent on its behalf and to exercise such powers as
are specifically delegated to
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the Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. The duties of the Agent shall be entirely ministerial; the
Agent shall not have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of this Agreement,
the Notes or any related document, or to enforce such performance, or to inspect
the property (including the books and records) of the Company or any of its
Subsidiaries; and the Agent shall not be required to take any action which
exposes the Agent to personal liability or which is contrary to this Agreement
or the Notes or applicable law. Firstar Bank, National Association agrees to act
as Agent upon the express terms and conditions contained in this Article VIII.
8.2. Responsibility. The Agent (i) makes no representation or warranty
to any Bank and shall not be responsible to any Bank for any oral or written
recitals, reports, statements, warranties or representations made in or in
connection with this Agreement or any Note; (ii) shall not be responsible for
the due execution, legality, validity, enforceability, genuineness, sufficiency,
collectibility or value of this Agreement or any Note or any other instrument or
document furnished pursuant thereto; (iii) may treat the payee of any Note as
the owner thereof until the Agent receives written notice of the assignment or
transfer thereof signed by such payee and in form satisfactory to the Agent;
(iv) may execute any of its duties under this Agreement by or through employees,
agents and attorneys in fact and shall not be answerable for the default or
misconduct of any such employee, agent or attorney in fact selected by it with
reasonable care; (v) may (but shall not be required to) consult with legal
counsel (including counsel for the borrower), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with advice of such
counsel, accountants or experts; (vi) shall be entitled to rely upon any Note,
notice, consent, waiver, amendment, certificate, affidavit, letter, telegram,
telex, cable or other document or communication believed by it to be genuine and
signed or sent by the proper party or parties, and may rely on statements
contained therein without further inquiry or investigation. Neither the Agent
nor any of its directors, officers, agents, or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement or the Notes, except for its or their own gross negligence or
willful misconduct.
8.3. Agent's Indemnification. The Banks agree to indemnify and
reimburse the Agent (to the extent not reimbursed by the Company), ratably in
accordance with their respective Commitments from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent as such in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Agent under this Agreement, provided that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Bank agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees) incurred by the
Agent in connection with the preparation, execution, administration or
enforcement of, or the
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preservation of any rights under, this Agreement to the extent that the Agent is
not reimbursed for such expenses by the Company.
8.4. Rights as a Lender. With respect to its Commitment and the Notes
issued to it, Firstar Bank, National Association, in its individual capacity as
a Bank, shall have, and may exercise, the same rights and powers under this
Agreement and the Notes payable to it as any other Bank has under this Agreement
and Notes, and the terms "Bank" and "Banks", unless the context otherwise
requires, shall include Firstar Bank, National Association in its individual
capacity as a Bank. Firstar Bank, National Association and its affiliates may
accept deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of banking or trust business with, the Company or
any of its Subsidiaries and any person, firm or corporation who may do business
with or own securities of the Company or any Subsidiary, all as if it were not
the Agent, and without any duty to account therefor to the Banks.
8.5. Credit Investigation. Each of the Banks severally represents and
warrants to each of the other Banks and to the Agent that it has made its own
independent investigation and evaluation of the financial condition and affairs
of the Company and its Subsidiaries in connection with such Bank's execution and
delivery of this Agreement and the making of its loans and has not relied on any
information or evaluation provided by any other Bank or the Agent in connection
with any of the foregoing (other than information provided by the Company to the
Agent for transmittal to the Banks in connection with the foregoing); and each
Bank represents and warrants to each other Bank and to the Agent that it shall
continue to make its own independent investigation and evaluation of the
credit-worthiness of the Company and its Subsidiaries while the Commitments
and/or the Notes are outstanding.
8.6. Resignation. The Agent may resign as such at any time upon ten
calendar days' prior written notice to the Company and the Banks, effective at
the end of said ten days or upon the earlier appointment of a successor. If the
Agent resigns, the Banks shall appoint a successor which shall be one of the
Banks, and such Bank, upon its acceptance of such appointment, shall become the
Agent upon the express conditions contained in this Article VIII. If at any time
there is no Agent acting hereunder, the Company shall make all required payments
to, and otherwise deal directly with, the Banks and/or the holders of the Notes,
as the case may be.
ARTICLE IX
MISCELLANEOUS
9.1. Accounting Terms; Definitions. Except as otherwise provided, all
accounting terms shall be construed in accordance with generally accepted
accounting principles consistently applied and consistent with those applied in
the preparation of the financial statements referred to in Section 4.5, and
financial data submitted pursuant to this Agreement shall be prepared in
accordance with such principles. As used herein:
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(a) the term "Adjusted LIBOR Rate" means, for any Interest Period with
respect to an Adjusted LIBOR Rate Loan, a rate per annum (rounded upward, if
necessary, to the nearest 1/16 of 1%) determined pursuant to the following
formula:
Adjusted LIBOR Rate = LIBOR Rate + Applicable Margin
-----------------------------
1 - LIBOR Reserve Requirement
(b) the term "Adjusted LIBOR Rate Loan" means all or part of any Loan
which bears interest at or by reference to the Adjusted LIBOR Rate.
(c) the term "Affiliate" means any person, firm or corporation, which,
directly or indirectly, controls, is controlled by, or is under common control
with, the Company or a Subsidiary.
(d) the term "Agent" has the meaning specified in the introductory
paragraph of this Agreement.
(e) the term "Agent's Fees" has the meaning specified in Section 1.9 of
this Agreement.
(f) the term "Aggregate Commitment" means the sum of the Aggregate
Revolver Commitment plus the Aggregate Line Commitment.
(g) the term "Aggregate Line Commitment" means the sum of all Banks'
Line Commitments.
(h) the term "Aggregate Revolver Commitment" means the sum of all
Banks' Revolver Commitments.
(i) the term "Agreement" means this Amended and Restated Credit
Agreement dated as of June 15, 2000, as may be amended, supplemented or
otherwise modified from time to time.
(j) the term "Applicable Margin" means, at any time, the percent per
annum specified below (expressed in basis points) for Adjusted LIBOR Rate Loans,
commitment fees and Letter of Credit fees, as the case may be, at the level
corresponding to the Leverage Ratio of the Company for each fiscal quarter
ending on March 31 and September 30 in each year (as the case may be), as shown
by the financial statements delivered pursuant to Sections 6.6(a) and 6.6(b):
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APPLICABLE MARGIN
-----------------
LIBOR UNUSED UNUSED LETTER OF
LEVEL LEVERAGE RATIO MARGIN LINE FEE REVOLVER FEE CREDIT FEE
----- -------------- ------ -------- ------------ ----------
4 <20% 112.5 20 25 112.5
3 >20% but<30% 137.5 25 30 137.5
-
2 >30% but <40% 162.5 30 35 162.5
-
1 >40% 187.5 32.5 37.5 187.5
-
The Applicable Margin shall, in each case, be determined and adjusted
if necessary on the fifth Business Day after receipt by the Agent of
the financial statements of the Company for each fiscal quarter ending
March 31 or fiscal year ending September 30 (as the case may be)
delivered pursuant to Sections 6.6(a) and 6.6(b) (each a "Calculation
Date"). Each determination of the Applicable Margin shall be effective
from one Calculation Date until the next Calculation Date.
Notwithstanding the foregoing, however, (i) the Applicable Margin shall
be at Level 3 at all times until delivery of the annual audited
financial statements for the Company's fiscal year ending September 30,
2000, and (ii) the Applicable Margin shall be at Level 1 at all times
during the continuation of an Event of Default or during any failure by
the Company to deliver financial statements by the deadlines set forth
in Sections 6.6(a) and 6.6(b).
(k) the term "Banks" has the meaning specified in the
introductory paragraph of this Agreement.
(l) the term "Borrowing Date" means each date (which must be a
Business Day) on which a Loan is made to the Company or on which any loan
bearing interest at one rate is converted into a loan bearing interest at
another interest rate or is continued.
(m) the term "Business Day" means any date other than a
Saturday, Sunday or other day on which banks in the States of Wisconsin or
Illinois are required or authorized to close; provided, however, that for
purposes of determining the applicable Interest Period for an Adjusted LIBOR
Rate Loan, references to Business Day will include only those days on which
dealings in United States Dollar deposits are carried out by United States
financial institutions in the London interbank market.
(n) the term "Capitalized Lease" means any lease which is
capitalized on the books of the lessee, or should be so capitalized under
generally accepted accounting principles.
(o) the term "Commercial Paper" means all short-term,
unsecured, unrated corporate debt obligations (commonly known as commercial
paper) issued by the Company from time to time, including sales of commercial
paper through one or more of the Banks acting as placement agent pursuant to
separate agreements between the Company and such Bank or Banks.
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(p) the term "Commitment" means, with respect to each Bank,
the sum of its Revolver Commitment and Line of Credit Commitment.
(q) the term "Company" has the meaning specified in the
introductory paragraph of this Agreement.
(r) the term "Consolidated Fixed Charge Coverage Ratio"
means, for any period, the relationship, expressed as a numerical ratio,
between:
(i) the sum of Consolidated Net Earnings of the Company and
its Subsidiaries for such period plus the sum of the
following (all to the extent deducted in arriving at such
Consolidate Net Earnings for such period): (A) payment or
provision for applicable income and other taxes for such
period, (B) depreciation, amortization and all other
non-cash deductions arising in the normal course of
operations and shown on the Company's financial
statements for such period, (C) net interest expense on
indebtedness of the Company and its Subsidiaries
(including the interest component of Capitalized Leases)
for such period, and (D) rental expense under leases
other than Capitalized Leases for such period, and
(ii) the sum of (A) net interest expense on indebtedness of
the Company and its Subsidiaries (including the interest
component of Capitalized Leases) for such period, (B)
scheduled principal payments on indebtedness of the
Company and its Subsidiaries during such period, (C) the
principal component of required payments in respect of
Capitalized Leases during such period and (D) rental
expense under leases other than Capitalized Leases for
such period,
all as determined in accordance with generally accepted accounting principles
applied on a consolidated basis to the Company and its Subsidiaries.
(s) the term "Consolidated Net Earnings" means:
(i) all revenues and income derived from operation in the
ordinary course of business (excluding extraordinary
gains and profits upon the disposition of investments and
fixed assets),
Minus:
(ii) 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 generally accepted accounting principles as
applied on a consolidated basis to the Company and its Subsidiaries.
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(t) the term "Consolidated Tangible Net Worth" means the
total of all assets properly appearing on the consolidated balance sheet of the
Company and its Subsidiaries in accordance with generally accepted accounting
principles, less the sum of the following:
(i) the book amount of all such assets which would be
treated as intangibles under generally accepted
accounting principles, including, without limitation,
all such items as good will, trademarks, trademark
rights, trade names, tradename rights, brands,
copyrights, patents, patent rights, licenses, deferred
charges and unamortized debt discount and expense;
(ii) any write-up in the book value of any such assets
resulting from a revaluation thereof subsequent to
September 30, 1999;
(iii) all reserves (to the extent not already deducted from
assets), including reserves for depreciation,
obsolescence, depletion, insurance, and inventory
valuation, but excluding contingency reserves not
allocated for any particular purpose and not deducted
from assets;
(iv) the amount, if any, at which any shares of stock of the
Company or any Subsidiary appear on the asset side of
such consolidated balance sheet;
(v) all liabilities of the Company and its Subsidiaries
shown on such balance sheet, other than liabilities
subordinated to obligations owed to the Banks by
subordination agreements in form and substance
satisfactory to the Banks; and
(vi) all investments in foreign affiliates and
nonconsolidated domestic affiliates.
(u) the term "Consolidated Total Debt" means all of the
following determined on a consolidated basis with respect to the Company and its
Subsidiaries in accordance with generally accepted accounting principles (except
as otherwise provided below):
(i) indebtedness for borrowed money,
(ii) obligations representing the deferred purchase price of
property or services other than (x) accounts payable
arising in the ordinary course of business on terms
customary in the trade and (y) obligations related to
employee benefit plans and deferred compensation plans
of the Company,
(iii) obligations evidenced by notes, bonds, acceptances, or
other instruments (including Commercial Paper) or
arising in connection with Letters of Credit issued for
the account of the Company or a Subsidiary,
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(iv) obligations, whether or not assumed, secured by liens or
payable out of proceeds or production from property now
or hereafter owned or acquired by the Company or a
Subsidiary,
(v) Capitalized Leases, and
(vi) in the event that the Company sells accounts receivable
pursuant to an asset securitization transaction
permitted by Section 5.6, an amount of deemed
indebtedness equal to $50,000,000 (whether or not any
liability is required to be recorded on the consolidated
balance sheet of the Company in connection with such
asset securitization transaction under generally
accepted accounting principles).
(v) the term "Consolidated Total Debt to EBITDA Ratio"
means, for any period, the relationship, expressed as a numerical ratio,
between:
(i) Consolidated Total Debt as of the end of such period;
and
(ii) EBITDA for such period.
(w) the term "Controlled Group" means a controlled group of
corporations as defined in Section 1563 of the Internal Revenue Code of 1986, as
amended, of which the Company is a part.
(x) the term "Default" means any condition or event which
with the passage of time or the giving of notice or both would constitute an
Event of Default.
(y) the term "EBITDA" means, for any period, Consolidated
Net Earnings of the Company for such period plus the sum of the following (all
to the extent deducted in arriving at such Consolidated Net Earnings for such
period): (A) depreciation, amortization and all other non-cash deductions
arising in the normal course of operations and shown on the Company's financial
statements for such period, (B) net interest expense on indebtedness of the
Company and its Subsidiaries (including the interest component of Capitalized
Leases) for such period and (C) payment or provision for income and other taxes
for such period, all as determined in accordance with generally accepted
accounting principles as applied on a consolidated basis to the Company and its
Subsidiaries.
(z) the term "Effective Date" has the meaning specified in
Section 1.1. of this Agreement.
(aa) the term "Environmental Audit" means a review for the
purpose of determining whether the Company and each Subsidiary complies with
Environmental Laws and whether there exists any condition or circumstance which
requires or will require a cleanup, removal, or other remedial action under
Environmental Laws on the part of the Company or any Subsidiary including, but
not limited to, some or all of the following:
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35
(i) on site inspection including review of site geology,
hydrogeology, demography, land use and population;
(ii) taking and analyzing soil borings and installing ground
water monitoring ▇▇▇▇▇ and analyzing samples taken from
such ▇▇▇▇▇;
(iii) taking and analyzing of air samples and testing of
underground tanks;
(iv) reviewing plant permits, compliance records and
regulatory correspondence, and interviewing enforcement
staff at regulatory agencies;
(v) reviewing the operations, procedures and documentation
of the Company and its Subsidiaries; and
(vi) interviewing past and present employees of the Company
and its Subsidiaries.
(bb) the term "Environmental Laws" means all federal, state
and local laws including rules of common law, 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, the Toxic Substances Control Act, the Hazardous Materials
Transportation Act, regulations of the Environmental Protection Agency,
regulations of the Nuclear Regulatory Agency, and regulations of any state
department of natural resources or state environmental protection agency now or
at any time hereafter in effect.
(cc) the term "ERISA" means the Employee Retirement Income
Security Act of 1974, as the same may be in effect from time to time.
(dd) the term "Event of Default" has the meaning specified in
Section 7.1 of this Agreement.
(ee) the term "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 conducted by brokers in federal funds, as published
for such day by the Federal Reserve Bank of New York, 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.
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(ff) the term "Guarantor" has the meaning specified in
Section 3.2 of this Agreement.
(gg) the term "Guaranty" has the meaning specified in Section
3.2 of this Agreement.
(hh) the term "Interest Period" means with respect to each
Adjusted LIBOR Rate Loan, the period commencing on the applicable Borrowing Date
and ending one, two or three months thereafter, as specified by the Company in
the related notice of borrowing pursuant to Section 2.2, and with respect to a
Variable Rate Loan converted to an Adjusted LIBOR Rate Loan, or in the case of a
continuation of an Adjusted LIBOR Rate Loan for an additional Interest Period,
the period commencing on the date of such conversion or continuation and ending
one, two or three months thereafter, as specified by the Company in the related
notice pursuant to Section 2.5, provided that:
(i) any Interest Period which would otherwise end on a day
which is not a Business Day will be extended to the next
succeeding Business Day unless such Business Day falls
in another calendar month, in which case such Interest
Period will end on the immediately preceding Business
Day;
(ii) any Interest Period which begins on the last Business
Day of a calendar month (or on a day for which there is
no numerically corresponding day in a calendar month at
the end of such Interest Period) will, subject to clause
(iii) below, end on the last Business Day of a calendar
month; and
(iii) in no event may any Interest Period for a Revolving
Credit Loan extend beyond the Revolver Termination Date
and in no event may any Interest Period for a Line of
Credit Loan extend beyond the Line Termination Date.
(ii) the term "Letter of Credit" has the meaning specified in
Section 1.6 of this Agreement.
(jj) the term "Letter of Credit Obligations" means the
aggregate undrawn face amount of all outstanding Letters of Credit and all
unpaid Reimbursement Obligations.
(kk) the term "Leverage Ratio" means the relationship,
expressed as a percentage, between:
(i) Consolidated Total Debt, and
(ii) Consolidated Total Debt plus Consolidated Tangible Net
Worth,
all as determined in accordance with generally accepted accounting principles
applied on a consolidated basis to the Company and its Subsidiaries.
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(ll) the term "LIBOR Rate" means, for any Interest Period
with respect to an Adjusted LIBOR Rate Loan, the per annum rate of interest
determined by the Agent to be the arithmetic average (rounded upward, if
necessary, to the nearest 1/16 of 1%) of the offered rates for deposits in
United States Dollars for the applicable Interest Period which appear on the
Telerate Screen Page 3750 (or such other page of Telerate or such other service
on which the appropriate information may be displayed), on the electronic
communications terminals in the Agent's money center, as of 11 a.m., London
time, on the Business Day which is two Business Days before the applicable
Borrowing Date ("Calculation Date"), except as provided below. If fewer than two
offered rates appear for the applicable Interest Period or if the appropriate
screen is not accessible as of such time, the term "LIBOR Rate" shall mean the
per annum rate of interest determined by the Agent to be the average (rounded
up, if necessary, to the nearest 1/16 of 1%) of the rates at which deposits in
U.S. dollars are offered to the Agent by four major banks in the London
interbank market, as selected by the Agent ("Reference Banks"), at approximately
11 a.m., London time, on the Calculation Date for the applicable Interest Period
and in an amount equal to the principal amount of the applicable Adjusted LIBOR
Rate Loan. The Agent will request the principal London office of each of such
Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the applicable rate will be the arithmetic mean of the
quotations. If fewer than two quotations are provided as requested, the
applicable rate will be the arithmetic mean of the rates quoted by major banks
in New York City, selected by the Agent, at approximately 11 a.m., New York City
time, on the Calculation Date for loans in United States Dollars to leading
European banks for the applicable Interest Period and in an amount equal to the
principal amount of the applicable Adjusted LIBOR Rate Loan.
(mm) the term "LIBOR Reserve Requirement" means, for any
Interest Period with respect to an Adjusted LIBOR Rate Loan, the stated maximum
rate of all reserve requirements (including all basic, supplemental, marginal,
emergency and other reserves and taking into account any transitional
adjustments or other scheduled changes in reserve requirements during such
Interest Period) that is specified on the first day of such Interest Period by
the Board of Governors of the Federal Reserve System for determining the maximum
reserve requirement with respect to eurocurrency funding (currently referred to
as "Eurocurrency liabilities" in Regulation D of such Board of Governors)
applicable to the class of banks of which any Bank is a member.
(nn) the term "Line Commitment" means, for each Bank, the
amount specified for such Bank in Section 1.4.
(oo) the term "Line of Credit Loans" has the meaning
specified in Section 1.4 of this Agreement.
(pp) the term "Line of Credit Note" has the meaning specified
in Section 1.4 of this Agreement.
(qq) the term "Line Termination Date" has the meaning
specified in Section 1.4 of this Agreement.
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(rr) the term "Loan Document" means each of this Agreement,
the Notes and the Guaranties, and the term "Loan Documents" means this
Agreement, the Notes and the Guaranties collectively.
(ss) the term "Loans" means Revolving Credit Loans, Line of
Credit Loans and Swingline Loans.
(tt) the term "LOC Bank" has the meaning specified in Section
1.6 of this Agreement.
(uu) the term "Multiemployer Plan" means a multiemployer
pension plan within the meaning of the Multiemployer Pension Plan Amendment Act,
as amended from time to time.
(vv) the term "Notes" means, collectively, the Revolving
Credit Notes, Line of Credit Notes and the Swingline Note.
(ww) the term "Percentage Interest" means, for each Bank, (i)
with respect to Revolving Credit Loans, the ratio of such Bank's Revolver
Commitment to the Aggregate Revolver Commitment, (ii) with respect to Line of
Credit Loans, the ratio of such Bank's Line Commitment to the Aggregate Line
Commitment, and (iii) with respect to all Loans, the ratio of such Bank's
Commitment to the Aggregate Commitment.
(xx) the term "Permitted Liens" means:
(i) liens outstanding on September 30, 1999, and shown on
the financial statements referred to in Section 4.5
above, and liens described on Schedule 9.1;
(ii) liens for taxes, assessments or governmental charges,
and liens incident to construction, which are either not
delinquent or are being contested in good faith by the
Company or a Subsidiary by appropriate proceedings which
will prevent foreclosure of such liens, and against
which adequate reserves have been provided; and
easements, restrictions, minor title irregularities and
similar matters which have no adverse effect as a
practical matter upon the ownership and use of the
affected property by the Company or any Subsidiary;
(iii) liens or deposits in connection with worker's
compensation or other insurance or to secure customs'
duties, public or statutory obligations in lieu of
surety, stay or appeal bonds, or to secure performance
of contracts or bids (other than contracts for the
payment of money borrowed), or deposits required by law
or governmental regulations or by any court order,
decree, judgment or rule as a condition to the
transaction of business or the exercise of any right,
privilege or license;
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or other liens or deposits of a like nature made in the
ordinary course of business; and
(iv) purchase money liens on property (other than inventory)
acquired in the ordinary course of business, to finance
or secure a portion of the purchase price thereof, and
liens on property acquired existing at the time of
acquisition; provided that in each case such lien shall
be limited to the property so acquired and the liability
secured by such lien does not exceed either the purchase
price or the fair market value of the asset acquired.
(yy) the term "Person" means an individual, partnership,
corporation, business trust, joint stock company, trust, unincorporated
association, limited liability company, joint venture, governmental agency or
authority or other entity of whatever nature.
(zz) the term "Plan" means any employee pension benefit plan
subject to Title IV of ERISA maintained by the Company, any of its Subsidiaries,
or any member of the Controlled Group, or any such plan to which the Company,
any of its Subsidiaries, or any member of the Controlled Group is required to
contribute on behalf of any of its employees.
(aaa) the term "Prime Rate" means the rate of interest
announced by the Agent as its prime or reference rate for interest rate
calculations, as such rate may change from time to time. The Prime Rate may not
be the lowest interest rate charged by the Agent.
(bbb) 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 the
treatment of any extensions of credit of the Banks.
(ccc) the term "Reimbursement Obligations" means all
obligations of the Company to reimburse the LOC Bank for all drawings under
Letters of Credit.
(ddd) the term "Reportable Event" means a reportable event as
that term is defined in Title IV of ERISA.
(eee) the term "Required Banks" means Banks holding at least
51% of the Aggregate Commitment, or if the Commitments have been terminated,
Banks holding at least 51% of the aggregate principal amount owed by the Company
hereunder.
(fff) the term "Revolver Commitment" means, for each Bank, the
amount specified for such Bank in Section 1.3 of this Agreement.
(ggg) the term "Revolver Termination Date" has the meaning
specified in Section 1.3 of this Agreement.
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(hhh) the term "Revolving Credit Loan" has the meaning
specified in Section 1.3 of this Agreement.
(iii) the term "Revolving Credit Note" has the meaning
specified in Section 1.3 of this Agreement.
(jjj) the term "Subsidiary" means a corporation, partnership
or other entity of which the Company owns, directly or through another
Subsidiary, at the date of determination, more than 50% of the outstanding stock
(or other shares of beneficial interest) having ordinary voting power for the
election of directors, irrespective of whether or not at such time stock of any
other class or classes might have voting power by reason of the happening of any
contingency, or holds at least a majority of partnership or similar interests,
or is a general partner, and any other Affiliate that is included in the
Company's consolidated financial statements furnished to the Bank pursuant to
Section 6.6 hereof.
(kkk) the term "Swingline Lender" has the meaning specified in
Section 1.5 of this Agreement.
(lll) the term "Swingline Loan" has the meaning specified in
Section 1.5 of this Agreement.
(mmm) the term "Swingline Note" has the meaning specified in
Section 1.5 of this Agreement.
(nnn) the term "Unfunded Liabilities" means, with regard to
any Plan, the excess of the current value of the Plan's benefits guaranteed
under ERISA over the current value of the Plan's assets allocable to such
benefits.
(ooo) the term "Variable Rate" means the rate per annum equal
to the Prime Rate.
(ppp) the term "Variable Rate Loan" means any loan which bears
interest at or by reference to the Variable Rate.
9.2. Expenses; Indemnity.
(a) The Company shall pay or reimburse each Bank and the
Agent for all reasonable out-of-pocket costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) paid or incurred by the
Agent or such Bank in connection with (i) the negotiation, preparation,
execution, delivery, and administration of this Agreement, the Notes, the Loan
Documents and any other document required hereunder or thereunder, including
without limitation any amendment, supplement, modification or waiver of or to
any of the foregoing, (ii) the enforcement, protection or preservation of its
rights under this Agreement, the Notes, the Loan Documents and any other
document required hereunder or thereunder, before and after judgment, including
without limitation defending against any claim made against the Agent or such
Bank by the Company, any Subsidiary or any third party
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as a result of or in any way relating to any matter referred to in subsection
(i) or (ii) of this section; and (iii) any and all taxes, other than taxes
levied upon the net income of such Bank by the federal government or the state
(or political subdivision of a state) where such Bank's principal office is
located, which may be payable or determined to be payable in connection with the
negotiation, preparation, execution, delivery, administration or enforcement of
this Agreement, the Notes, the Loan Documents or any other document required
hereunder or thereunder or any amendment, supplement, modification or waiver of
or to any of the foregoing, or consummation of any of the transactions
contemplated hereby or thereby.
(b) The Company agrees to indemnify the Agent and each Bank
against any and all losses, claims, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' fees and expenses)
incurred by the Agent or such Bank arising out of, in any way connected with, or
as a result of (i) any acquisition or attempted acquisition of stock or assets
of another person or entity by the Company or any Subsidiary, (ii) the use of
any of the proceeds of any Loans made hereunder by the Company or any Subsidiary
for the making or furtherance of any such acquisition or attempted acquisition,
(iii) any breach or alleged breach by the Company of or any liability or alleged
liability of the Company under any Environmental Law, or any liability or
alleged liability incurred by the Agent or such Bank under any Environmental Law
in connection with this Agreement, any Loan Document or the transactions
contemplated hereunder or thereunder, (iv) the negotiation, preparation,
execution, delivery, administration, and enforcement of this Agreement, the
Notes, the Loan Documents and any other document required hereunder or
thereunder, including without limitation any amendment, supplement, modification
or waiver of or to any of the foregoing or the consummation or failure to
consummate the transactions contemplated hereby or thereby, or the performance
by the parties of their obligations hereunder or thereunder.
(c) The foregoing agreements and indemnities shall remain
operative and in full force and effect regardless of termination of this
Agreement, the consummation of or failure to consummate either the transactions
contemplated by this Agreement or any amendment, supplement, modification or
waiver, the repayment of any Loans made hereunder, the invalidity or
unenforceability of any term or provision of this Agreement or any of the Notes
or any Loan Document, or any other document required hereunder or thereunder,
any investigation made by or on behalf of the Agent, any Bank, the Company or
any Subsidiary, or the content or accuracy of any representation or warranty
made under this Agreement, any Loan Document or any other document required
hereunder or thereunder.
9.3. Securities Act of 1933. Each Bank represents that it is
acquiring the Notes payable to it without any present intention of making a sale
or other distribution of such Notes, provided each Bank reserves the right to
sell participations in its Notes to the extent permitted by Section 9.10.
9.4. No Agency. Except as expressly provided herein, nothing
in this Agreement and no action taken pursuant hereto shall cause any Bank to be
treated as the agent of any other Bank, or shall be deemed to constitute the
Banks a partnership, association, joint venture or other entity.
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9.5. Successors. The provisions of this Agreement shall inure
to the benefit of any holder of one or more of the Notes, and shall inure to the
benefit of and be binding upon any successor to any of the parties hereto. No
delay on the part of any Bank or any holder of any of the Notes in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise of any right, power or privilege hereunder
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
are not exclusive of any rights or remedies which the Banks or the holder of any
of the Notes would otherwise have.
9.6. Survival. All agreements, representations and warranties
made herein shall survive the execution of this Agreement, the making of the
Loans hereunder and the execution and delivery of the Notes.
9.7. Wisconsin Law. This Agreement and the Notes issued
hereunder shall be governed by and construed in accordance with the internal
laws of the State of Wisconsin, except to the extent superseded by federal law.
9.8. Counterparts. This Agreement may be signed in any number
of counterparts with the same effect as if the signatures thereto and hereto
were upon the same instrument.
9.9. Notices. All communications or notices required under
this Agreement shall be deemed to have been given on the date when deposited in
the United States mail, postage prepaid, and addressed as follows (unless and
until any of such parties advises the other in writing of a change in such
address): (a) if to the Company, with the full name and address of the Company
as shown on this Agreement below; and (b) if to any of the Banks with the full
name and address of such Bank as shown on this Agreement above, to the attention
of the officer of the Bank executing the form of acceptance of this Agreement.
9.10. Assignment; Participations.
(a) The Company may not assign its rights under this
Agreement. Each Bank may assign to one or more other financial institutions all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Loans, its Notes, and its
Commitment); provided, however, that:
(i) except in the case of an assignment to another Bank or
an Affiliate of such Bank, any such assignment shall require
the prior written approval of the Agent and the Company (such
approval not to be unreasonably withheld or delayed), provided
that the Company's consent is not required during the
existence and continuation of an Event of Default;
(ii) except in the case of an assignment to another Bank or
an Affiliate of such Bank or an assignment of all of a Bank's
rights and obligations under this Agreement, any such partial
assignment shall be in an amount at least equal to
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$5,000,000 (or, if less, the remaining amount of the
Commitment being assigned by such Bank) and an integral
multiple of $500,000 in excess thereof;
(iii) each such assignment by a Bank shall be of a constant,
and not varying, percentage of all of its rights and
obligations under this Agreement and the Notes; and
(iv) the parties to such assignment shall deliver to the
Agent for its acceptance a processing fee from the assignor of
$3,500.
Upon execution, delivery, and acceptance of such assignment,
the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and
benefits of a Bank hereunder and the assigning Bank shall, to
the extent of such assignment, relinquish its rights and be
released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section
9.10(a), the assignor, the Agent and the Company shall make
appropriate arrangements so that, if required, new Notes are
issued to the assignor and the assignee.
(b) Each Bank may sell participations to one or more Persons
in all or a portion of its rights, obligations or rights and obligations under
this Agreement (including all or a portion of its Commitment, its Notes and its
Loans); provided, however, that (i) such Bank's obligations under this Agreement
shall remain unchanged, (ii) such Bank shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participant shall be entitled to the benefit of the yield protection provisions
contained in Article II, inclusive, and the right of set-off contained in
Section 2.19, and (iv) the Company shall continue to deal solely and directly
with such Bank in connection with such Bank's rights and obligations under this
Agreement, and such Bank shall retain the sole right to enforce the obligations
of the Company relating to its Loans and its Notes and to approve any amendment,
modification, or waiver of any provision of this Agreement (other than
amendments, modifications, or waivers decreasing the amount of principal of or
the rate at which interest is payable on such Loans or Notes, extending any
scheduled principal payment date or date fixed for the payment of interest on
such Loans or Notes, or extending its Commitment).
(c) Any Bank may furnish any information concerning the
Company in the possession of such Bank from time to time to assignees and
participants (including prospective assignees and participants).
9.11. Entire Agreement; No Agency. This Agreement and the
other documents referred to herein contain the entire agreement between the
Banks and the Company with respect to the subject matter hereof, superseding all
previous communications and negotiations, and no representation, undertaking,
promise or condition concerning the subject matter hereof shall be binding upon
the Banks unless clearly expressed in this Agreement or in the other documents
referred to herein. Nothing in this Agreement or in the other documents
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referred to herein and no action taken pursuant hereto shall cause the Company
to be treated as an agent of any Bank, or shall be deemed to constitute the
Banks and the Company a partnership, association, joint venture or other entity.
9.12. No Third Party Benefit. This Agreement is solely for the
benefit of the parties hereto and their permitted successors and assigns. No
other person or entity shall have any rights under, or because of the existence
of, this Agreement.
9.13. CONSENT TO JURISDICTION. THE COMPANY HEREBY CONSENTS TO
THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITUATED IN MILWAUKEE COUNTY,
WISCONSIN, AND WAIVES ANY OBJECTION BASED ON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS, WITH REGARD TO ANY ACTIONS, CLAIMS,
DISPUTES OR PROCEEDINGS RELATING TO THIS AGREEMENT, ANY NOTE, ANY OF THE LOAN
DOCUMENTS, OR ANY OTHER DOCUMENT DELIVERED HEREUNDER OR IN CONNECTION HEREWITH,
OR ANY TRANSACTION ARISING FROM OR CONNECTED TO ANY OF THE FOREGOING. THE
COMPANY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND CONSENTS TO
ALL SUCH SERVICE OF PROCESS MADE BY MAIL OR BY MESSENGER DIRECTED TO IT AT THE
ADDRESS SPECIFIED BELOW. Nothing herein shall affect the right of the Banks, or
any of them, to serve process in any manner permitted by law, or limit the right
of any Banks, or any of them, to bring proceedings against the Company or its
property or assets in the competent courts of any other jurisdiction or
jurisdictions.
9.14. WAIVER OF JURY TRIAL. THE COMPANY AND THE BANKS HEREBY
JOINTLY AND SEVERALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, ANY NOTE, ANY OF THE LOAN DOCUMENTS, OR
ANY OTHER DOCUMENT DELIVERED HEREUNDER OR IN CONNECTION HEREWITH, OR ANY
TRANSACTION ARISING FROM OR CONNECTED TO ANY OF THE FOREGOING. THE COMPANY AND
THE BANKS EACH REPRESENT THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY GIVEN.
9.15. LIMITATION OF LIABILITY. THE COMPANY, THE AGENT AND THE
BANKS HEREBY WAIVE ANY RIGHT ANY OF THEM MAY NOW OR HEREAFTER HAVE TO CLAIM OR
RECOVER FROM ANY OTHER PARTY HERETO ANY CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES.
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If the foregoing is satisfactory to you, please sign the form
of acceptance below and return a signed counterpart hereof to the Company. When
this instrument has been executed and delivered by all of the Banks, it will
evidence a binding agreement between the Banks and the Company.
Very truly yours,
(CORPORATE SEAL) PLEXUS CORP.
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/
---------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of
the date thereof.
FIRSTAR BANK,
NATIONAL ASSOCIATION,
as the Agent and as a Bank
By: /s/
--------------------------------------
Title:
-----------------------------------
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/
--------------------------------------
Title:
-----------------------------------
BANK ONE, NA
(Main Office Chicago)
By: /s/
--------------------------------------
Title:
-----------------------------------
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EXHIBIT 1.3
PROMISSORY NOTE
$____________ _______________, 20__
FOR VALUE RECEIVED, PLEXUS CORP., a Wisconsin corporation,
promises to pay to the order of ___________________________________________,
without setoff or counterclaim, the principal sum of __________________ Dollars
($____________) at the Main Office of Firstar Bank, National Association, in
Milwaukee, Wisconsin, on the Revolver Termination Date (as defined in the Credit
Agreement referred to below). This Note shall bear interest payable on the dates
and at the rate or rates set forth in the Credit Agreement referred to below.
All amounts payable under this Note and the Credit Agreement shall be payable in
lawful money of the United States of America.
This Note constitutes one of the Revolving Credit Notes issued
under an Amended and Restated Credit Agreement dated as of June __, 2000, as
amended from time to time (the "Credit Agreement"), among the undersigned and
Firstar Bank, National Association, for itself and as Agent, and the other Banks
from time to time party thereto, to which Credit Agreement reference is hereby
made for a statement of the terms and conditions on which loans in part
evidenced hereby were or may be made, and for a description of the conditions
upon which this Note may be prepaid, in whole or in part, or its maturity
accelerated.
This Note is entitled to the benefits of the Credit Agreement
and all of the Loan Documents referred to in the Credit Agreement.
This Note shall be construed in accordance with the laws
(without regard to principles of conflict of laws) of the State of Wisconsin.
The undersigned waives presentment, protest and notice of dishonor, and agrees,
in the event of default hereunder, to pay all costs and expenses of collection,
including reasonable attorneys' fees.
PLEXUS CORP.
By:______________________________________
Name:____________________________________
Title:___________________________________
(CORPORATE SEAL)
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EXHIBIT 1.4
PROMISSORY NOTE
$____________ _______________, 20__
FOR VALUE RECEIVED, PLEXUS CORP., a Wisconsin corporation,
promises to pay to the order of ___________________________________________,
without setoff or counterclaim, the principal sum of __________________ Dollars
($____________) at the Main Office of Firstar Bank, National Association, in
Milwaukee, Wisconsin, on the Line Termination Date (as defined in the Credit
Agreement referred to below). This Note shall bear interest payable on the dates
and at the rate or rates set forth in the Credit Agreement referred to below.
All amounts payable under this Note and the Credit Agreement shall be payable in
lawful money of the United States of America.
This Note constitutes one of the Line of Credit Notes issued
under an Amended and Restated Credit Agreement dated as of June __, 2000, as
amended from time to time (the "Credit Agreement"), among the undersigned and
Firstar Bank, National Association, for itself and as Agent, and the other Banks
from time to time party thereto, to which Credit Agreement reference is hereby
made for a statement of the terms and conditions on which loans in part
evidenced hereby were or may be made, and for a description of the conditions
upon which this Note may be prepaid, in whole or in part, or its maturity
accelerated.
This Note is entitled to the benefits of the Credit Agreement
and all of the Loan Documents referred to in the Credit Agreement.
This Note shall be construed in accordance with the laws
(without regard to principles of conflict of laws) of the State of Wisconsin.
The undersigned waives presentment, protest and notice of dishonor, and agrees,
in the event of default hereunder, to pay all costs and expenses of collection,
including reasonable attorneys' fees.
PLEXUS CORP.
By:______________________________________
Name:____________________________________
Title:___________________________________
(CORPORATE SEAL)
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EXHIBIT 1.5
SWINGLINE NOTE
$5,000,000 __________, 20__
FOR VALUE RECEIVED, Plexus Corp., a Wisconsin corporation,
promises to pay to the order of ____________________, without setoff or
counterclaim, the principal sum of (a) Five Million Dollars ($5,000,000) or, if
less, (b) the aggregate unpaid principal amount of all Swingline Loans made to
the undersigned pursuant to section 1.5 of the Credit Agreement referred to
below, at the Main Office of Firstar Bank, National Association, in Milwaukee,
Wisconsin, on the Termination Date (as defined in the Credit Agreement referred
to below). This Note shall bear interest payable on the dates and at the rate or
rates set forth in the Credit Agreement referred to below. All amounts payable
under this Note and the Credit Agreement shall be payable in lawful money of the
United States of America.
This Note constitutes the Swingline Note issued under an
Amended or Restated Credit Agreement dated as of June __, 2000 (the "Credit
Agreement"), among the undersigned, Firstar Bank, National Association, for
itself and as Agent, and the Banks from time to time party thereto, to which
Credit Agreement reference is hereby made for a statement of the terms and
conditions on which Swingline Loans evidenced hereby were or may be made, and
for a description of the conditions upon which this Note may be prepaid, in
whole or in part, or its maturity accelerated.
This Note shall be construed in accordance with laws of the
State of Wisconsin, except to the extent superseded by federal law. The
undersigned waives presentment, protest, and notice of dishonor and agrees, in
the event of default hereunder, to pay all costs and expenses of collection,
including reasonable attorneys' fees.
PLEXUS CORP.
By:______________________________________
Name:____________________________________
Title:___________________________________
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EXHIBIT 1.7
COMMERCIAL PAPER REPORT
_____________20__,
Memorandum to:
Firstar Bank, National Association, as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Amended and Restated Credit
Agreement Dated as of June __, 2000
(the " Credit Agreement")
After giving effect to all Commercial Paper transactions of
the Company through the date hereof, the aggregate principal amount of all
outstanding Commercial Paper of the Company is $___________.
The Company hereby certifies as follows:
(a) All of the representations and warranties set forth in
Article IV of the Credit Agreement continue to be true on the date hereof,
except that the financial statements referred to in Section 4.5 of the Credit
Agreement shall be deemed to be the most recent audited financial statements of
the Company delivered pursuant to Section 6.6(b) of the Credit Agreement.
(b) At the date hereof, no Default or Event of Default under
the Credit Agreement has occurred and is continuing.
PLEXUS CORP.
By:______________________________________
Name:____________________________________
Title:___________________________________
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EXHIBIT 2.2
LOAN REQUEST
_______________, 20__
Firstar Bank, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Restated Credit Agreement Dated as of June __, 2000
(the "Agreement")
Gentlemen:
The undersigned hereby applies to you, as Agent, for a Loan
under the above Agreement to be made on ____________, 20__ in the principal
amount of $_____________________.
The undersigned hereby certifies as follows:
(a) All of the representations and warranties set forth
in Article IV of such Agreement continue to be true on the date hereof.
(b) At the date hereof, no Default or Event of Default
under said Agreement has occurred and is continuing.
(c) There has been no material adverse change in the
business operations or financial condition of the undersigned and its
Subsidiaries, taken as a whole, since September 30, 1999.
The Loan will be a:
[check appropriate box]
[_____] Revolving Credit Loan
[_____] Line of Credit Loan
The Loans will bear interest at the:
[check appropriate box]
[_____] Variable Rate
[_____] Adjusted LIBOR Rate
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If the Loan will bear interest at the Adjusted LIBOR Rate, the
Interest Period shall be ____ months (one, two or three months).
Capitalized definitional terms used and not otherwise defined
herein shall have the meanings ascribed to them in the Agreement.
Very truly yours,
PLEXUS CORP.
By:______________________________________
(CORPORATE SEAL) Title:___________________________________
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EXHIBIT 2.5
CONVERSION/CONTINUATION REQUEST
_______________, 20__
Firstar Bank, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Amended and Restated Credit Agreement Dated as of
June __, 2000 (the "Agreement")
Gentlemen:
The undersigned elects to convert/continue the following
portion of the outstanding loans under the Agreement:
[check appropriate box]
[_____] Variable Rate Loans
[_____] Adjusted LIBOR Rate Loans
1. The amount of Loans to be converted/continued:
$_________________________
2. The type of Loans into which the current Loans shall be
converted:
[check appropriate box]
[_____] Variable Rate Loans
[_____] Adjusted LIBOR Rate Loans
3. Date of Conversion/Continuation: ________________
4. Duration of Interest Period: _____ months [one, two or
three months] (applicable only to Adjusted LIBOR Rate
Loans).
5. The amount of the Adjusted LIBOR Rate Loans into which such
loans are converted/continued:
$_____________________ (applicable only to Adjusted LIBOR Rate
Loans)
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6. Capitalized definitional terms used and not otherwise
defined herein shall have the meanings ascribed to them in
the Agreement.
Very truly yours,
PLEXUS CORP.
By:______________________________________
Title:________________________________
(Corporate Seal)
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SCHEDULE 4.1
SUBSIDIARIES
Agility, Inc.
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Electronic Assembly Corporation
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Plexus International Sales & Logistics, LLC
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Plexus International Services
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Plexus QS, LLC
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---------------------------------------------
SeaMed Corporation
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---------------------------------------------
Technology Group, Inc.
---------------------------------------------
---------------------------------------------
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