CREDIT AGREEMENT
Dated as of May 31, 2002
among
JOURNAL COMMUNICATIONS, INC.
as Borrower,
CERTAIN SUBSIDIARIES FROM TIME TO TIME
PARTIES HERETO,
as Guarantors,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
THE NORTHERN TRUST COMPANY
as Documentation Agent,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
as Syndication Agent,
and
U.S. BANK NATIONAL ASSOCIATION,
as Lead Arranger and Administrative Agent
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS..............................................1
1.1 Definitions..................................................1
1.2 Other Definitional Provisions...............................18
1.3 Accounting Terms and Determinations.........................18
SECTION 2 CREDIT FACILITIES.......................................18
2.1 Revolving Loans.............................................18
2.2 Swing Line Loans............................................20
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES..........22
3.1 Default Rate................................................22
3.2 Extension and Conversion....................................22
3.3 Reductions in Commitments and Prepayments...................22
3.4 Fees........................................................23
3.5 Capital Adequacy............................................23
3.6 Inability To Determine Interest Rate........................24
3.7 Illegality..................................................24
3.8 Requirements of Law.........................................24
3.9 Taxes.......................................................25
3.10 Indemnity...................................................27
3.11 Pro Rata Treatment..........................................27
3.12 Sharing of Payments.........................................28
3.13 Place and Manner of Payments................................29
3.14 Transfers at Borrower's Request.............................29
SECTION 4 GUARANTY................................................30
4.1 The Guaranty................................................30
4.2 Obligations Unconditional...................................30
4.3 Reinstatement...............................................31
4.4 Certain Additional Waivers..................................31
4.5 Remedies....................................................31
4.6 Continuing Guarantee........................................32
SECTION 5 CONDITIONS..............................................32
5.1 Conditions to Closing Date..................................32
5.2 Conditions to All Loans.....................................33
SECTION 6 REPRESENTATIONS AND WARRANTIES..........................34
6.1 Financial Statements........................................34
6.2 Ownership of Properties; Liens and Encumbrances.............34
6.3 Corporate Existence; Compliance with Law....................35
6.4 Corporate Power; Authorization; Enforceable
Obligations...............................................35
6.5 No Legal Bar; No Default....................................35
6.6 No Material Litigation......................................35
6.7 Investment Company Act......................................36
6.8 Federal Regulations.........................................36
6.9 ERISA.......................................................36
6.10 Environmental Matters.......................................36
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TABLE OF CONTENTS
(continued)
Page
6.11 Use of Proceeds.............................................37
6.12 Subsidiaries................................................37
6.13 Taxes.......................................................37
6.14 Solvency....................................................38
6.15 Accuracy of Information.....................................38
6.16 Amendments to Schedule 6.12.................................38
SECTION 7 AFFIRMATIVE COVENANTS...................................38
7.1 Annual Financial Statement..................................38
7.2 Interim Financial Statements................................39
7.3 Payment of Obligations......................................39
7.4 Conduct of Business and Maintenance of Existence............39
7.5 Maintenance of Property; Insurance..........................40
7.6 Inspection of Property; Books and Records; Discussions......40
7.7 Notices.....................................................40
7.8 Environmental Laws..........................................41
7.9 Financial Covenants.........................................42
7.10 Additional Subsidiary Guarantors............................42
SECTION 8 NEGATIVE COVENANTS......................................43
8.1 Indebtedness................................................43
8.2 Liens.......................................................43
8.3 Nature of Business..........................................43
8.4 Consolidation, Merger, Sale or Purchase of Assets, etc......43
8.5 Advances, Investments and Loans.............................44
8.6 Guarantee Obligations.......................................44
8.7 Transactions with Affiliates................................44
8.8 Ownership of Subsidiaries...................................44
8.9 Fiscal Year.................................................44
8.10 Dividends...................................................44
SECTION 9 EVENTS OF DEFAULT.......................................44
SECTION 10 AGENCY PROVISIONS.......................................47
10.1 Appointment.................................................47
10.2 Delegation of Duties........................................48
10.3 Exculpatory Provisions......................................48
10.4 Reliance on Communications..................................48
10.5 Notice of Default...........................................49
10.6 Non-Reliance on Agent and Other Lenders.....................49
10.7 Indemnification.............................................49
10.8 Agent in its Individual Capacity............................50
10.9 Successor Agent.............................................50
10.10 Documentation Agent and Syndication Agent...................50
SECTION 11 MISCELLANEOUS...........................................51
11.1 Amendments, Waivers.........................................51
11.2 Notices.....................................................51
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TABLE OF CONTENTS
(continued)
Page
11.3 No Waiver; Cumulative Remedies..............................52
11.4 Survival of Representations and Warranties..................52
11.5 Payment of Expenses and Taxes...............................52
11.6 Successors and Assigns; Participations; Purchasing
Lenders....................................................53
11.7 Set-off.....................................................56
11.8 Confidentiality.............................................56
11.9 Table of Contents and Section Headings......................57
11.10 Counterparts................................................57
11.11 Severability................................................57
11.12 Integration.................................................57
11.13 Governing Law...............................................57
11.14 Consent to Jurisdiction and Venue...........................57
11.15 Acknowledgements............................................58
11.16 Waivers of Jury Trial.......................................58
11.17 Limitation of Liability.....................................58
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Schedules
Schedule 1.1(b) Existing Investments
Schedule 2.1(a) Revolving Commitments
Schedule 6.12 Subsidiaries
Schedule 8.2 Permitted Liens
Schedule 11.2 Schedule of Lenders
Exhibits
Exhibit 2.1(b)(i) Form of Borrowing Notice for Revolving Loans
Exhibit 2.1(e) Form of Revolving Note
Exhibit 3.2 Form of Notice for Conversion/Extension of Revolving Loans
Exhibit 5.1(c) Certificate of Financial Condition
Exhibit 5.1(f) Form of Certificate of Secretary of the Borrower
Exhibit 7.10 Form of Joinder Agreement
Exhibit 11.6(c) Form of Commitment Transfer Supplement
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of May 31, 2002 (the "Credit
Agreement"), is by and among JOURNAL COMMUNICATIONS, INC. ("Borrower"), those
Subsidiaries identified as a "Guarantor" on the signature pages hereto and such
other Subsidiaries as may from time to time become a party hereto (each a
"Guarantor" and collectively, the "Guarantors"), the several lenders identified
on the signature pages hereto and such other lenders as may from time to time
become a party hereto (each a "Lender" and collectively, the "Lenders"), and
U.S. BANK NATIONAL ASSOCIATION as administrative agent for the Lenders (in such
capacity, the "Agent").
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a
$120,000,000 revolving credit facility for the purposes hereinafter set forth;
and
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions. As used in this Credit Agreement, the following terms
shall have the meanings specified below unless the context otherwise requires:
"Additional Credit Party" means each Guarantor as of the
Closing Date and each Person that becomes a Guarantor after the Closing
Date by execution of a Joinder Agreement in accordance with Section
7.10.
"Affiliate" means, with respect to any Person, any other
Person (i) directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person or (ii) directly or
indirectly owning or holding ten percent (10%) or more of the equity
interest in such Person. For purposes of this definition, "control"
when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative
to the foregoing; provided, however, JESTA will not be deemed an
Affiliate of the Borrower or any of its Subsidiaries.
"Agent" means U.S. Bank National Association as administrative
agent in such capacity hereunder, and any successors and assigns in
such capacity.
"Aggregate Revolving Committed Amount" means the aggregate
amount of all of the Revolving Commitments in effect from time to time.
"Audited Financial Statements" means the audited consolidated
financial statements of the Borrower referred to in Section 6.1(a).
"Best Knowledge of the Borrower" means the actual knowledge of
any of the Chairman of the Board of Directors of the Borrower, the
President of the Borrower, the Chief Financial Officer of the Borrower
or the President of any of the Borrower's Subsidiaries.
"Borrower" means Journal Communications, Inc., a Wisconsin
corporation.
"Borrowing Date" means in respect of any Loan, the date such
Loan is made.
"Business" is defined in Section 6.10(b).
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in Wisconsin or Illinois are
closed, except that, when used in connection with a rate determination,
borrowing or payment in respect of a Eurodollar Loan, such day shall
also be a day on which dealings between banks are carried on in U.S.
dollar deposits in London, England and Nassau, Bahamas.
"Calculation Date" is defined in the definition of Interbank
Offered Rate.
"Capital Lease" means any lease of property, real or personal,
the obligations with respect to which are required to be capitalized on
a balance sheet of the lessee in accordance with GAAP.
"Capital Lease Obligations" means the capital lease
obligations relating to a Capital Lease determined in accordance with
GAAP.
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than twelve months from the date of
acquisition, (b) U.S. dollar denominated time deposits and certificates
of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial paper rating
from S&P is at least A-1 or the equivalent thereof or from ▇▇▇▇▇'▇ is
at least P-1 or the equivalent thereof (any such bank being an
"Approved Lender"), in each case with maturities of not more than 364
days from the date of acquisition, (c) commercial paper and variable or
fixed rate notes issued by any Approved Lender (or by the parent
company thereof) or any variable or fixed rate notes issued by, or
guaranteed by, any
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domestic corporation rated A-1 (or the equivalent thereof) or better by
S&P or P-1 (or the equivalent thereof) or better by Moody's and
maturing within six months of the date of acquisition, (d) repurchase
agreements with a bank or trust company (including any of the Lenders)
or recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by
the United States of America in which the Borrower shall have a
perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market value of at
least 100% of the amount of the repurchase obligations, (e) obligations
of any State of the United States or any political subdivision thereof,
the interest with respect to which is exempt from federal income
taxation under Section 103 of the Code, having a long term rating of at
least Aa-3 or AA- by Moody's or S&P, respectively, (f) investments in
municipal auction preferred stock (i) rated AAA (or the equivalent
thereof) or better by S&P or AAA (or the equivalent thereof) or better
by Moody's and (ii) with dividends that reset at least once every 365
days, (g) investments, classified in accordance with GAAP as current
assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by
reputable financial institutions having capital of at least
$100,000,000 and the portfolios of which are limited to investments of
the character described in the foregoing subdivisions (a) through (f),
(h) repurchase agreements collateralized with Government or Federal
Agency Securities, (i) U.S. Government or U.S. Government Agency
obligations, (j) obligations issued or guaranteed by any Lender,
including, bankers' acceptances, certificates of deposit, eurodollar
time deposits, and eurodollar certificates of deposit, (k) commercial
paper rated at least A1 or P1 by S&P and Moody's with a maturity not to
exceed 93 days, (l) non-rated commercial paper offered through any
Lender and any other bank, investment bank, insurance company or other
financial institution approved in writing by both the Chairman of the
Board of Directors and Chief Financial Officer of the Borrower (the
"Approved Investment Institutions") provided that: (i) The issuer
maintains a committed back up line of credit in an amount sufficient to
ensure repayment of obligations at maturity, and (ii) investments for
any individual issuer shall not exceed the greater of $5,000,000 or 10%
of the total value of the portfolio, and (iii) the maturity of the
obligations shall not exceed 33 days, (m) master notes issued by
obligors with a minimum rating of A-1/P-1 by S&P and Moody's
respectively, provided, the master note agreement must provide for
instant cancellation of the borrowing relationship should the issuer's
credit quality slip below these standards, (n) municipal auction rate
preferred securities rated AAA by Moody's and/or S&P, provided, the
maximum amount per issue shall not exceed $5,000,000, (o) tax-exempt
municipal issues rated A or better by S&P or Moody's and issues which
are no longer rated by Moody's and/or S&P because they have been
escrowed, 100% in U.S. Government securities, provided, the maximum
amount, per issue shall not exceed $1,000,000, (p) money market funds
offered by the approved investment institutions that invest in prime
rated commercial paper, obligations issued by or guaranteed by the
United States Government or its Agencies, or prime rated tax-exempt
municipal issues and (q) other investment instruments offered by the
Approved Investment Institutions provided the investment does not
violate any specific constraint in this Section, and provided further,
these investments have been approved in writing by both the Chairman
3
of the Board and Chief Financial Officer of the Borrower and the
maximum amount per issue does not exceed $1,000,000.
"Closing Date" means the date on which all of the conditions
set forth in Section 5.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment Percentage" means for each Lender, the percentage
identified as its Commitment Percentage on Schedule 2.1(a), as such
percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 11.6(c).
"Commitment Transfer Supplement" means a Commitment Transfer
Supplement, substantially in the form of Exhibit 11.6(c).
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Consolidated Amortization" means for any period, amortization
expense determined for the Borrower and its Subsidiaries on a
consolidated basis and in accordance with GAAP applied on a consistent
basis.
"Consolidated Depreciation" means for any period, depreciation
expense determined for the Borrower and its Subsidiaries on a
consolidated basis and in accordance with GAAP applied on a consistent
basis.
"Consolidated EBITDA" means for any period, the aggregate of
the sum of Consolidated EBIT plus Consolidated Depreciation plus
Consolidated Amortization plus the Cumulative Effect of an Accounting
Change, determined in each case in accordance with GAAP applied on a
consistent basis. Except as expressly provided otherwise, the
applicable period shall be for the four consecutive quarters ending as
of the date of determination.
"Consolidated EBIT" means for any period, the aggregate of the
sum of Consolidated Net Earnings (determined without including in
Consolidated Net Earnings any extraordinary gains or losses (including,
without limitation, gains or losses on disposal of property, plant and
equipment relating to discontinued operations), and any taxes on such
excluded gains and any tax deductions or credits on account of any such
excluded losses) plus Consolidated Interest Expense plus Provision for
Income Taxes minus Consolidated Interest Income and Dividends,
determined in each case in accordance with GAAP applied on a consistent
basis. Except as expressly provided otherwise, the applicable period
shall be for the four consecutive quarters ending as of the date of
determination.
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"Consolidated Funded Debt" means Funded Debt of the Borrower
and its Subsidiaries on a consolidated basis determined in accordance
with GAAP applied on a consistent basis.
"Consolidated Funded Debt Ratio" means, as of the last day of
any fiscal quarter, the ratio of Consolidated Funded Debt on such day
to Consolidated EBITDA for the period of four consecutive fiscal
quarters ending as of such day.
"Consolidated Interest Expense" means for any period, all
interest expense, including the interest component under Capital Leases
and interest paid on federal, state, city and foreign income tax audits
for the Borrower and its Subsidiaries on a consolidated basis
determined in accordance with GAAP applied on a consistent basis.
"Consolidated Interest Income and Dividends" means for any
period, all interest income earned on cash and Cash Equivalents and
dividends earned on stock for the Borrower and its Subsidiaries on a
consolidated basis determined in accordance with GAAP applied on a
consistent basis.
"Consolidated Net Earnings" means for any period, the net
income of the Borrower and its Subsidiaries on a consolidated basis
determined in accordance with GAAP applied on a consistent basis. The
applicable period shall be for the four consecutive quarters ending as
of the date of computation.
"Consolidated Net Worth" means total stockholders' equity of
the Borrower and its Subsidiaries on a consolidated basis as determined
in accordance with GAAP applied on a consistent basis.
"Consolidated Rent Expense" means for any period, the rent
expense for real and personal property operating leases (and excluding
Capital Leases) of the Borrower and its Subsidiaries on a consolidated
basis determined in accordance with GAAP applied on a consistent basis.
"Consolidated Subsidiaries" means Subsidiaries whose financial
statements are consolidated with those of the Borrower in accordance
with GAAP.
"Consolidated Tangible Net Worth" means the Total
Stockholder's Equity appearing on the consolidated balance sheet of the
Borrower and its Subsidiaries prepared in accordance with GAAP minus
the sum of the following; (i) the book amount of goodwill and (ii)
other intangibles determined in accordance with GAAP, including without
limitation, all such items as customer lists, non-compete agreements,
network affiliation agreements but excluding the book value of
broadcast licenses.
"Consolidated Total Assets" means total assets of the Borrower
and its Subsidiaries on a consolidated basis as determined in
accordance with GAAP applied on a consistent basis.
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"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or undertaking to which such Person is a party or by which
it or any of its property is bound.
"Credit Documents" means this Credit Agreement, the Notes, any
Joinder Agreement, and all other related agreements and documents
issued or delivered hereunder or thereunder or pursuant hereto or
thereto.
"Credit Party" means, individually, the Borrower and any
Additional Credit Party.
"Credit Party Obligations" means, without duplication, all of
the obligations of the Borrower and the other Credit Parties to the
Lenders and the Agent (including the obligations to pay principal of
and interest on the Loans, to pay all Fees, to pay certain expenses and
the obligations arising in connection with various indemnities)
whenever arising, under this Credit Agreement, the Notes or any other
of the Credit Documents to which the Borrower or any other Credit Party
is a party.
"Cumulative Effect of an Accounting Change" means the
non-operational impairment charge recorded as a result of the Borrower
adopting the Financial Accounting Standards Board SFAS# 142, "Goodwill
and Other Intangible Assets."
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means at any time, any Lender that, at
such time (a) has failed to make a Loan or advance required pursuant to
the terms of this Credit Agreement, (b) has failed to pay to the Agent
or any Lender an amount owed by such Lender pursuant to the terms of
this Credit Agreement, or (c) has been deemed insolvent or has become
subject to a bankruptcy or insolvency proceeding or to a receiver,
trustee or similar official.
"Dividends" means dividends paid in cash to or for the benefit
of shareholders of the Borrower for any period.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Eligible Transferee" means and includes a commercial bank,
financial institution or other "accredited investor" as defined in
Regulation D of the Securities Act of 1933, (as amended).
"Environmental Laws" means any and all applicable foreign,
federal, state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any Governmental
Authority (or other Requirement of Law including common law)
regulating, relating to or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or may
at any time be in effect during the term of this Credit Agreement.
6
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
"Eurodollar Loan" means any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
Eurodollar Rate = Interbank Offered Rate
---------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as such regulation may be amended
from time to time or any successor regulation, as the maximum reserve
requirement (including, without limitation, any basic, supplemental,
emergency, special, or marginal reserves) applicable with respect to
Eurocurrency liabilities as that term is defined in Regulation D or
against any other category of liabilities that includes deposits by
reference to which the interest rate of Eurodollar Loans is determined,
whether or not Lender has any Eurocurrency liabilities subject to such
reserve requirement at that time. Eurodollar Loans shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject
to reserve requirements without benefit of credits for proration,
exceptions or offsets that may be available from time to time to a
Lender. The Eurodollar Rate shall be adjusted automatically on and as
of the effective date of any change in the Eurodollar Reserve
Percentage.
"Event of Default" is defined in Section 9.
"Execution Date" means the date as of which the parties hereto
have executed this Credit Agreement.
"Federal Funds Rate" means, for any day, the rate of interest
per annum (rounded upwards, if necessary, to the nearest whole multiple
of 1/100 of 1%) equal to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding
such day, provided that (A) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day and (B) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to the Agent on such day
on such transactions as determined by the Agent.
7
"Fee" means any fee payable pursuant to Section 3.4.
"Fixed Charge Coverage Ratio" means for any period, the ratio
of Consolidated EBIT, to the sum of (i) Consolidated Interest Expense
and (ii) principal amortization of Funded Debt and (iii) Dividends all
as determined without duplication for the Borrower and its Subsidiaries
on a consolidated basis and in accordance with GAAP applied on a
consistent basis.
"Funded Debt" means without duplication, for any Person, all
Indebtedness of such Person described in paragraphs (a), (b), (c) and
(k) of the definition of Indebtedness and Guaranty Obligations by such
Person of Funded Debt of other Persons; provided, however, Funded Debt
shall not include Capital Leases of such Person if the aggregate
principal portion of all Capital Lease Obligations of such Person is
less than $1,000,000. Funded Debt shall include payments in respect of
Funded Debt which constitute current liabilities of the obligor under
GAAP.
"GAAP" means generally accepted accounting principles in
effect in the United States of America applied on a consistent basis.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation" means, as to any Person (the
"guaranteeing person"), any obligation of (a) the guaranteeing person
or (b) another Person (including, without limitation, any bank under
any letter of credit) to induce the creation of which the guaranteeing
person has issued a reimbursement, counter indemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary
obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation,
any obligation of the guaranteeing person, whether or not contingent,
(i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall
not include endorsements of instruments for deposit or collection in
the ordinary course of business. The amount of any Guarantee Obligation
of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and
(b) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for
which such
8
guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith. The
parties agree that the Borrower's historical practice of paying
dividends to JESTA does not currently constitute a Guarantee Obligation
under this Section.
"Guarantor" means each Person identified on the signature
pages hereof as a Guarantor and each Additional Credit Party which has
executed a Joinder Agreement, together with their successors and
permitted assigns.
"Guaranty" means the guaranty of the Guarantors set forth in
Section 4.
"Indebtedness" means, of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services other than trade liabilities
incurred in the ordinary course of business and not restructured
thereafter for credit reasons, (b) any other indebtedness of such
Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Capital Leases,
(d) all obligations of such Person in respect of acceptances issued or
created for the account of such Person, (e) all liabilities secured by
any Lien on any property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof, (f)
all obligations of such Person under conditional sale or other title
retention agreements relating to property purchased by such Person
other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business), (g) all obligations of such Person under take-or-pay or
similar arrangements or under commodities agreements, (h) all Guarantee
Obligations of such Person, (i) all obligations of such Person in
respect of interest rate protection agreements, foreign currency
exchange agreements, commodity purchase or option agreements or other
interest or exchange rate or commodity price hedging agreements, (j)
the maximum amount of all letters of credit issued or bankers'
acceptances created for the account of such Person and, without
duplication, all drafts drawn thereunder to the extent not theretofore
reimbursed, (k) all preferred stock issued by such Person and required
by the terms thereto to be redeemed, or for which mandatory sinking
fund payments are due, by a fixed date, (l) all other obligations which
would be shown as a liability on the balance sheet of such Person, and
(m) the outstanding balance of the purchase price of uncollected
accounts receivable of such Person subject at such time to a sale of
receivables or other similar transaction, regardless of whether such
transaction is effected without recourse to such Person or in a manner
which would not be reflected on the balance sheet of such Person in
accordance with GAAP; but specifically excluding from the foregoing (x)
trade payables, (y) obligations for advances by customers for the
purchase of goods or services from the Borrower and its Subsidiaries,
and (z) other obligations, expenses and reserves (whether classified as
long term or short term) arising or incurred in the ordinary course of
business. For purposes hereof, Indebtedness shall include Indebtedness
of any partnership in which such Person is a general partner (except
for any such Indebtedness with respect to which the holder is limited
to the assets of such partnership or joint venture).
9
"Indemnified Liabilities" is defined in Section 11.5.
"Insolvency" means with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term
as used in Section 4245 of ERISA.
"Interbank Offered Rate" means, with respect to any Eurodollar
Loan for the Interest Period applicable thereto, the per annum rate of
interest determined by the Agent (each such determination to be
conclusive and binding absent manifest error) to be the average
(rounded up, if necessary, to the nearest one-sixteenth (1/16) of one
percent) of the offered rates for deposits in U.S. dollars for the
applicable Interest Period which appear on the display known as
"British Bankers Assoc. Interest Settlement Rates" on the Telerate
System, Page 3750 (or such other page on which the appropriate
information may be displayed), on the electronic communications
terminals in the Agent's money center as of 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period (the
"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
"Interbank Offered Rate" shall mean the per annum rate of interest
determined by the Agent (each such determination to be conclusive and
binding absent manifest error) to be the average (rounded up, if
necessary, to the nearest one-sixteenth (1/16) of one percent) as the
effective rate at which deposits in immediately available funds in
Dollars are being, have been, or would be offered or quoted by major
banks to the Agent in the applicable interbank market for Eurodollar
deposits at 11:00 a.m. (Milwaukee, Wisconsin) on the Business Day which
is the second Business Day immediately preceding the first day of such
Interest Period, for a term comparable to such Interest Period and in
the amount of the requested Eurodollar Loan. If no such offers or
quotes are generally available for such amount, then the provisions of
Section 3.6 shall apply.
"Interest Payment Date" means (a) as to any Prime Rate Loan,
the last day of each month and the Revolving Termination Date, (b) as
to any Eurodollar Loan the last day of the applicable Interest Period.
Whenever any Interest Payment Date shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to
the next succeeding Business Day, except that in the case of Eurodollar
Loans, if the extension would cause the payment to be made in the next
following calendar month, then such payment shall instead be made on
the next preceding Business Day as provided in Section 3.13.
"Interest Period" means with respect to any Eurodollar Loan,
(i) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two or three months, or if an Interbank Offered
Rate is available therefor, one week, thereafter, as selected by the
Borrower in the notice of borrowing or notice of conversion given with
respect thereto; and
10
(ii) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such Eurodollar
Loan and ending one, two or three months, or if an Interbank Offered
Rate is available therefor, one week, thereafter, as selected by the
Borrower by irrevocable notice to the Agent not less than two Business
Days prior to the last day of the then current Interest Period with
respect thereto;
provided that the foregoing provisions are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day;
(B) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the relevant calendar
month;
(C) if the Borrower shall fail to give notice as
provided above, the Borrower shall be deemed to have selected
a Prime Rate Loan to replace the affected Eurodollar Loan;
(D) any Interest Period that would otherwise extend
beyond the Revolving Termination Date shall end on the
Revolving Termination Date; and
(E) no more than eight (8) Eurodollar Loans may be in
effect at any time. For purposes hereof, Eurodollar Loans with
different Interest Periods shall be considered as separate
Eurodollar Loans, although borrowings, extensions and
conversions may, in accordance with the provisions hereof, be
combined at the end of existing Interest Periods to constitute
a new Eurodollar Loan with a single Interest Period.
"JESTA" means the Journal Employees Stock Trust.
"JESTA Units" means units of beneficial interests in JESTA.
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit 7.10, executed and delivered by an Additional
Credit Party in accordance with the provisions of Section 7.10.
"Lenders" means each of the Persons identified as a "Lender"
on the signature pages hereto, and each Person which may become a
Lender by way of assignment in accordance with the terms hereof,
together with their successors and permitted assigns.
"Lien" means any mortgage, pledge, hypothecation, assignment
for security purposes, security interest, encumbrance, lien (statutory
or otherwise) or charge of any
11
kind including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any financing or
similar statement or notice filed under the Uniform Commercial Code as
adopted and in effect in the relevant jurisdiction (or other similar
recording or notice statute, and any lease in the nature thereof),
except a filing for precautionary purposes made with respect to a true
lease or other true bailment.
"Loan" means a Revolving Loan or a Swing Line Loan.
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations, property or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole, (b)
the ability of the Borrower or the other Credit Parties to perform
their obligations, when such obligations are required to be performed,
under this Credit Agreement or any of the other Credit Documents or (c)
the validity or enforceability of this Credit Agreement, any of the
Notes or any of the other Credit Documents or the rights or remedies of
the Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes" is defined in Section 3.9.
"Non-Guarantor Subsidiaries" is defined in Section 7.10.
"Note" or "Notes" means the Revolving Notes, individually or
collectively, as appropriate.
"Notice of Borrowing" means the written notice of borrowing as
referenced and defined in Section 2.1(b)(i).
"Notice of Extension/Conversion" means the written notice of
extension or conversion as referenced and defined in Section 3.2.
"Participant" and "Participants" are defined in Section 11.6.
"PBGC" means the Pension Benefit Guaranty Corporation
established under ERISA, and any successor thereto.
12
"Permitted Guarantee Obligations" means (i) a Guaranty and
(iii) Guarantee Obligations of the Borrower and its Subsidiaries
relating to Indebtedness of the Borrower or a Subsidiary otherwise
permitted under Section 8.1.
"Permitted Investments" means (i) cash and Cash Equivalents,
(ii) receivables owing to the Borrower or any of its Subsidiaries for
trade credit, in each case if created, acquired or made in the ordinary
course of business, (iii) loans and advances in the ordinary course of
business to officers, directors, employees, Affiliates who are not
Credit Parties and suppliers in an aggregate amount not to exceed
$2,000,000 at any time outstanding, (iv) investments (including debt
obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business, (v) investments,
acquisitions or transactions permitted under Section 8.4(b), (vi) with
respect to any pension trust maintained for the benefit of any present
or former employees of the Borrower or any Subsidiary, such loans,
advances and/or investments as the trustee or administrator of the
trust shall deem advisable pursuant to the terms of such trust, (vii)
investments in wholly-owned Subsidiaries of the Borrower, provided that
such investments in Non-Guarantor Subsidiaries of the Borrower shall
not exceed a maximum aggregate amount of 10% of Consolidated Tangible
Net Worth at any one time, (viii) investments of a nature not
contemplated by the foregoing clauses hereof that are outstanding as of
the Execution Date and set forth in the Audited Financial Statements,
(ix) investments by the Borrower in IPC Communication Services, SA and
IPC Communication Services Limited (SMLLC) not to exceed $15,000,000,
and (x) additional loan advances and/or investments of a nature not
contemplated by the foregoing clauses hereof provided that such loans,
advances and/or investments made pursuant to this clause (x) shall not
exceed an aggregate amount of $2,000,000 outstanding at any one time
and further provided that no such loans, advances and/or investments
shall be used to acquire all or substantially all of the voting stock
of any corporation the board of directors of which has not approved
such acquisition. As used herein, "investment" means all investments,
in cash or by delivery of property made, directly or indirectly in, to
or from any Person, whether by acquisition of shares of capital stock,
property, assets, indebtedness or other obligations or securities or by
loan advance, capital contribution or otherwise.
"Permitted Liens" means
(i) Liens in favor of the Agent for the benefit of the Lenders;
(ii) purchase money Liens securing purchase money indebtedness (and
refinancings thereof) and Capital Lease Obligations provided the sum of the
aggregate indebtedness and principal portion of Capital Lease Obligations does
not exceed $20,000,000 any time outstanding for the Borrower and its
Subsidiaries;
(iii) Liens for taxes, assessments, charges or other governmental
levies not yet due or as to which the period of grace, if any, related thereto
has not expired or which are being contested in good faith by appropriate
proceedings, provided that adequate reserves with
13
respect thereto are maintained on the books of the Borrower or its Subsidiaries,
as the case may be, in conformity with GAAP (or, in the case of Subsidiaries
with significant operations outside of the United States of America, generally
accepted accounting principles in effect from time to time in their respective
jurisdictions of incorporation);
(iv) carriers', warehousemen's, mechanics', material-men's, repairmen's
or other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 60 days or which are being contested in good
faith by appropriate proceedings;
(v) pledges or deposits in connection with workers compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(vi) deposits to secure the performance of bids, trade contracts,
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(vii) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred to in the
foregoing clauses; provided that such extension, renewal or replacement Lien
shall be limited to all or a part of the property which secured the Lien so
extended, renewed or replaced (plus improvements on such property);
(viii) easements, rights of way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not material in amount and which do not in any case materially
detract from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the Borrower or any Subsidiary;
(ix) Liens in existence on the date hereof listed on Schedule 8.2,
provided that no such Lien is spread to cover any additional property (other
than proceeds of the collateral originally subject to such Lien in accordance
with the instrument creating such Lien) after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;
(x) Liens on the property or assets of a corporation which becomes a
Subsidiary after the Closing Date, provided that (A) such Liens existed at the
time such corporation became a Subsidiary and were not created in anticipation
thereof, (B) no such Lien is spread to cover any additional property (other than
proceeds of the collateral originally subject to such Lien in accordance with
the instrument creating such Lien) after the Closing Date and (C) the aggregate
amount of Indebtedness secured thereby does not exceed $20,000,000 at any time
outstanding;
(xi) Liens in the nature of licenses that arise in the ordinary course
of business and consistent with past practice;
14
(xii) leases and subleases otherwise permitted hereunder granted to
others not interfering in any material respect in the business of the Borrower
or any Subsidiary; and
(xiii) attachment or judgment Liens, where the attachment or judgment
which gave rise to such Liens does not constitute an Event of Default hereunder.
"Permitted Sale-Leaseback Transaction" means a transaction
pursuant to which a Credit Party sells an item of equipment to a
financial institution, or other Person that regularly engages in such
transactions in the ordinary course of its business, and concurrently
with such sale (i) leases such item of equipment back from such
financial institution and (ii) subleases such item of equipment to a
customer of the Credit Party pursuant to a sublease agreement under
which such customer obtains an option to purchase such item of
equipment at or before the end of such sublease.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated) or any Governmental
Authority.
"Plan" means at any particular time, any employee benefit plan
which is covered by Title IV of ERISA and in respect of which the
Borrower or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to
be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means, for any day, the higher of (i) the per
annum rate of interest established from time to time by the Agent at
its principal office in Milwaukee, Wisconsin as its Prime Rate, or (ii)
the Federal Funds Rate plus 1%. Any change in the interest rate
resulting from a change in the Prime Rate shall become effective as of
12:01 a.m. of the Business Day on which each change in the Prime Rate
is announced by the Agent. The Prime Rate is a reference rate used by
the Agent in determining interest rates on certain loans and is not
intended to be the lowest rate of interest charged on any extension of
credit to any debtor.
"Prime Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Prime Rate.
"Properties" is defined in subsection 6.10(a).
"Provision for Income Taxes" means, for any period, all
provisions for any federal, state, city and foreign income taxes for
such period, including the provision for federal and state income taxes
associated with the Cumulative Effect of an Accounting Change for the
Borrower and its Subsidiaries on a consolidated basis for such period,
determined in each case in accordance with GAAP applied on a consistent
basis.
"Purchasing Lender" is defined in Section 11.6(c).
"Register" is defined in Section 11.6(d).
15
"Reorganization" means with respect to any Multiemployer Plan,
the condition that such Plan is in reorganization within the meaning of
such term as used in Section 4241 of ERISA.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA, other than those events as to which the
thirty-day notice period is waived under subsections .13, .14, .16,
.18, .19 or .20 of PBGC Reg. ss.2615.
"Required Lenders" means Lenders holding in the aggregate at
least 51% of the sum of (i) all Loans then outstanding at such time and
(ii) the aggregate unused Revolving Commitment at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time,
then there shall be excluded from the determination of Required Lenders
the Loans of such Defaulting Lender and such Defaulting Lender's
Revolving Commitment, or after termination of the Revolving
Commitments, the principal balance of the Loans owing to such
Defaulting Lender.
"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or to
which any of its material property is subject.
"Revolving Commitment" means with respect to each Lender, the
commitment of such Lender to make Revolving Loans in an aggregate
principal amount at any time outstanding up to such Lender's Revolving
Committed Amount as specified in Schedule 2.1(a) (subject to adjustment
on account of assignment pursuant to the provisions of Section 11.6(c)
hereof), as such amount may be reduced from time to time in accordance
with the provisions hereof.
"Revolving Commitment Period" means the period from and
including the Closing Date to but not including the Revolving
Termination Date.
"Revolving Committed Amount" means collectively, the aggregate
amount of all of the Revolving Commitments as referenced in Section
2.1(a) and, individually, the amount of each Lender's Revolving
Commitment as specified in Schedule 2.1(a) (subject to adjustment on
account of assignment pursuant to the provisions of Section 11.6(c)).
"Revolving Loans" is defined in Section 2.1.
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each of the Lenders evidencing the
Revolving Loans provided pursuant to Section 2.1(e), individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from time to
time.
"Revolving Termination Date" means May 30, 2003 or the earlier
termination in full of the Revolving Commitments pursuant to this
Agreement.
16
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business of such
division in the business of rating securities.
"Single Employer Plan" means any Plan which is not a
Multi-Employer Plan.
"Solvent" means, with respect to any Credit Party as of a
particular date, that on such date (i) such Credit Party is able to
realize upon its assets and pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the
normal course of business, (ii) such Credit Party does not intend to,
and does not believe that it will, incur debts or liabilities beyond
such Credit Party's ability to pay as such debts and liabilities mature
in their ordinary course, (iii) such Credit Party is not engaged in a
business or a transaction, and is not about to engage in a business or
a transaction, for which such Credit Party's property would constitute
unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Credit Party is
engaged or is to engage, (vi) the fair value of the property of such
Credit Party is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Credit
Party and (v) the present fair saleable value of the assets of such
Credit Party is not less than the amount that will be required to pay
the probable liability of such Credit Party on its debts as they become
absolute and matured. In computing the amount of contingent liabilities
at any time, it is intended that such liabilities will be computed at
the amount which, in light of all the facts and circumstances existing
at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Specified Sales" means (i) the sale, transfer, lease or other
disposition of inventory and materials in the ordinary course of
business, (ii) the sale, transfer, lease or other disposition of
machinery, parts, equipment and real estate no longer useful in the
conduct of the business of the Borrower or any of its Subsidiaries, as
appropriate.
"Subsidiary" means, as to any Person, a corporation,
partnership or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are at
the time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person, provided that JESTA shall not be considered a Subsidiary
of the Borrower. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Credit Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Swing Line Lender" means U.S. Bank National Association.
"Swing Line Loan" means a loan made by the Swing Line Lender
to the Borrower under Section 2.2.
17
"Swing Line Sublimit" means an amount equal to the lesser of
(a) $20,000,000 and (b) the Aggregate Revolving Committed Amount. The
Swing Line Sublimit is part of, and not in addition to, the Aggregate
Revolving Committed Amount.
"Threshold Requirement" is defined in Section 7.10.
"Transfer Effective Date" is defined in the Commitment
Transfer Supplement.
"Transferee" is defined in Section 11.6(f).
"Type" means, as to any Loan, its nature as a Prime Rate Loan
or a Eurodollar Loan, as the case may be.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all capitalized definitional
terms defined in this Credit Agreement shall have the defined meanings when used
in the Notes or other Credit Documents or any certificate or other document made
or delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Credit Agreement shall refer to this Credit Agreement
as a whole and not to any particular provision of this Credit Agreement, and
Section, subsection, Schedule and Exhibit references are to this Credit
Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(d) For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding".
1.3 Accounting Terms and Determinations. Unless otherwise specified
herein, all terms of an accounting character used herein shall be interpreted,
all accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared, in accordance
with GAAP, applied on a basis consistent (except for changes concurred in by the
Borrower's independent public accountants or otherwise required by a change in
GAAP) with the Audited Financial Statements.
SECTION 2
CREDIT FACILITIES
2.4 Revolving Loans.
(a) Revolving Commitment. During the Revolving Commitment Period,
subject to the terms and conditions hereof, each Lender severally agrees to make
revolving credit
18
loans ("Revolving Loans") to the Borrower from time to time for the purposes
hereinafter set forth; provided, however, that (i) with regard to each Lender
individually, the sum of such Lender's share of outstanding Revolving Loans plus
such Lender's Commitment Percentage of outstanding Swing Line Loans shall not
exceed such Lender's Revolving Committed Amount, and (ii) with regard to the
Lenders collectively, the sum of the aggregate amount of outstanding Revolving
Loans plus the aggregate amount of all outstanding Swing Line Loans shall not
exceed ONE HUNDRED TWENTY MILLION DOLLARS ($120,000,000) (as such aggregate
maximum amount may be reduced from time to time as provided herein). Revolving
Loans may consist of Prime Rate Loans or Eurodollar Loans, or a combination
thereof, as the Borrower may request, and may be repaid and reborrowed in
accordance with the provisions hereof.
(b)Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Revolving Loan
borrowing by written notice (or telephone notice promptly confirmed in writing
which confirmation may be by fax) to the Agent not later than 10:30 A.M.
(Milwaukee, Wisconsin time) on the Business Day of the requested borrowing in
the case of Prime Rate Loans, and on the second Business Day prior to the date
of the requested borrowing in the case of Eurodollar Loans. Each such request
for borrowing shall be irrevocable and shall specify (A) that a Revolving Loan
is requested, (B) the date of the requested borrowing (which shall be a Business
Day), (C) the aggregate principal amount to be borrowed, and (D) whether the
borrowing shall be comprised of Prime Rate Loans, Eurodollar Loans or a
combination thereof, and if Eurodollar Loans are requested, the Interest
Period(s) therefor. A form of Notice of Borrowing a ("Notice of Borrowing") is
attached as Exhibit 2.1(b)(i). If the Borrower shall fail to specify in any such
Notice of Borrowing (I) an applicable Interest Period in the case of a
Eurodollar Loan, then such notice shall be deemed to be a request for an
Interest Period of one month, or (II) the type of Revolving Loan requested, then
such notice shall be deemed to be a request for a Prime Rate Loan hereunder. The
Agent shall give notice to each Lender (promptly upon receipt of each Notice of
Borrowing, and in any event not later than 12:00 noon, Milwaukee, Wisconsin
time, with respect to any Notice of Borrowing delivered to the Agent pursuant to
this section) of the contents thereof and each such Lender's share thereof.
(ii) Minimum Amounts. Each Revolving Loan borrowing shall be: (A) if a
Prime Rate Loan, in a minimum aggregate amount of $250,000 and integral
multiples of $100,000 in excess thereof; and (B) if a Eurodollar Loan, in a
minimum aggregate amount of $2,500,000 and integral multiples of $500,000 in
excess thereof (or, in either case, the remaining amount of the Revolving
Commitment, if less).
(iii) Advances. Each Lender will make its Commitment Percentage of each
Revolving Loan borrowing available to the Agent for the account of the Borrower
at the office of the Agent specified in Schedule 11.2, or at such other office
as the Agent may designate in writing, by 1:30 P.M. (Milwaukee, Wisconsin time)
on the date specified in the applicable Notice of Borrowing in Dollars and in
funds immediately available to the Agent. Such borrowing will then be made
available to the Borrower by the Agent by crediting the account of
19
the Borrower on the books of such office with the aggregate of the amounts made
available to the Agent by the Lenders and in like funds as received by the Agent
by the close of Agent's business on such date.
(c) Repayment. The principal amount of all Revolving Loans shall be due
and payable in full on the Revolving Termination Date.
(d) Interest. Subject to the provisions of Section 3.1, Revolving Loans
shall bear interest as follows:
(i) Prime Rate Loans. During such periods as Revolving Loans shall be
comprised of Prime Rate Loans, each such Prime Rate Loan shall bear interest at
a per annum rate equal to the sum of the Prime Rate;
(ii) Eurodollar Loans. During such periods as Revolving Loans shall be
comprised of Eurodollar Loans, each such Eurodollar Loan shall bear interest at
a per annum rate equal to the sum of the applicable Eurodollar Rate plus 0.90%;
and
Interest on Revolving Loans shall be payable in arrears on each Interest Payment
Date.
(e) Revolving Notes. The Revolving Loans shall be evidenced by a duly
executed promissory note of the Borrower to each Lender in the original
principal amount of each such Lender's Revolving Committed Amount in
substantially the form of Exhibit 2.1(e).
2.2 Swing Line Loans.
(b) During the Revolving Commitment Period, subject to the terms and
conditions set forth in this Credit Agreement, the Swing Line Lender agrees to
make Swing Line Loans to the Borrower as the Borrower may from time to time
request for the purposes permitted hereby; provided, however, that (i) the
aggregate principal amount of all outstanding Swing Line Loans shall not exceed
the Swing Line Sublimit, (ii) the Loans of each Lender shall not exceed such
Lender's Revolving Commitment and (iii) the Loans of all Lenders shall not
exceed the Aggregate Revolving Committed Amount at any time. This is a revolving
credit and, subject to the foregoing and the other terms and conditions hereof,
the Borrower may borrow, prepay and reborrow Swing Line Loans as set forth
herein without premium or penalty; provided, however, that Swing Line Lender may
terminate or suspend the Swing Line at any time in its sole discretion upon
notice to the Borrower. Each Swing Line Loan shall bear interest at a rate equal
to the rate applicable to Prime Rate Loans or at a rate quoted by the Agent and
agreed to by the Borrower.
(c) Unless notified to the contrary by Swing Line Lender, the Borrower
may irrevocably request a Swing Line Loan upon notice to the Swing Line Lender.
There is no minimum borrowing amount for a Swing Line Loan. Each such request
for a Swing Line Loan shall constitute a representation and warranty by the
Borrower that the conditions set forth in Section 5.2 are satisfied. Promptly
after receipt of such request, the Swing Line Lender shall obtain telephonic
verification from the Agent that such Swing Line Loan is permitted hereunder.
Upon receiving such verification, the Swing Line Lender shall make such Swing
Line Loan
20
available to the Borrower. Without the consent of Required Lenders and the Swing
Line Lender, no Swing Line Loan shall be made during the continuation of a
Default or Event of Default. Upon the making of each Swing Line Loan, each
Lender shall be deemed to have purchased from the Swing Line Lender a risk
participation therein in an amount equal to that Lender's Commitment Percentage
times the amount of the Swing Line Loan.
(d) Each Swing Line Loan shall bear interest at a fluctuating rate per
annum equal to the rate of interest payable on Prime Rate Loans or at the rate
quoted by the Agent and agreed to by the Borrower and interest shall be payable
upon demand of the Swing Line Lender, on the last day of each month and on the
Revolving Termination Date. The Swing Line Lender shall be responsible for
invoicing the Borrower (or notifying the Agent to so invoice the Borrower) for
such interest. The interest payable on Swing Line Loans is solely for the
account of the Swing Line Lender, except following any funding of a risk
participation under clause (f) below.
(e) The Borrower shall repay each Swing Line Loan on the earliest of
(i) upon demand made by Swing Line Lender and (ii) the Revolving Termination
Date. The Borrower shall repay the principal amount of each Swing Line Loan by
payment directly to Swing Line Lender or by Swing Line Lender debiting the
Borrower's deposit account at Swing Line Lender not later than 10:00 a.m.
(Milwaukee, Wisconsin time) for payments hereunder. If the conditions precedent
set forth in Section 5.2 can be satisfied, the Borrower may request a Revolving
Loan to repay Swing Line Lender, or, failing to make such request, the Borrower
shall be deemed to have requested a Revolving Loan of Prime Rate Loans on such
payment date pursuant to subsection (f) below. Swing Line Lender shall promptly
notify the Agent of each Swing Line Loan and each payment thereof.
(f) If the Borrower fails to timely make any principal of or interest
payment on any Swing Line Loan, Swing Line Lender shall notify the Agent of such
fact and the unpaid amount. The Agent shall promptly notify each Lender of its
pro rata share of such amount by 11:00 a.m. (Milwaukee, Wisconsin time). Each
Lender shall make funds in an amount equal to its pro rata share of such amount
available to the Agent at the Agent's payment office not later than the 2:00
p.m. (Milwaukee, Wisconsin time) for payments hereunder on the same Business
Day. The obligation of each Lender to make such payment shall be absolute and
unconditional and shall not be affected by the occurrence of an Event of Default
or any other occurrence or event. Any such payment shall not relieve or
otherwise impair the obligation of the Borrower to repay the Swing Line Lender
for any amount of Swing Line Loans, together with interest as provided herein.
(g) If the conditions precedent set forth in Section 5.2 can be
satisfied on any date the Borrower is obligated to, but fails to, repay a Swing
Line Loan, the funding by Lenders pursuant to the previous subsection shall be
deemed to be a borrowing of Prime Rate Loans (without regard to the minimum
amount therefor) deemed requested by the Borrower. If the conditions precedent
set forth in Section 5.2 cannot be satisfied on the date the Borrower is
obligated to make, but fails to make, such payment, the funding by Lenders
pursuant to the previous subsection shall be deemed to be a funding by each
Lender of its participation in such Swing Line Loan, and each Lender making such
funding shall thereupon acquire a pro rata
21
participation, to the extent of its payment, in the claim of Swing Line Lender
against the Borrower in respect of such payment and shall share, in accordance
with that pro rata participation, in any payment made by the Borrower with
respect to such claim. Any amounts made available by a Lender under its risk
participation shall be payable by the Borrower upon demand of the Agent, and
shall bear interest at a rate per annum equal to the Prime Rate plus 2% per
annum.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate. Upon the occurrence, and during the continuance, of
an Event of Default, the principal of and, to the extent permitted by law,
interest on the Loans and any other amounts owing hereunder or under the other
Credit Documents shall bear interest, payable on demand, at a per annum rate
which is equal to the rate which would otherwise be applicable (or if no rate is
applicable, whether in respect of interest, fees or other amounts, then the
Prime Rate) plus 2%.
3.2 Extension and Conversion. The Borrower shall have the option, on
any Business Day, to extend existing Loans into a subsequent permissible
Interest Period or to convert Loans into Loans of another Type; provided,
however, that (i) except as provided in Sections 3.6 and 3.7, Eurodollar Loans
may be converted into Prime Rate Loans only on the last day of the Interest
Period applicable thereto, (ii) Eurodollar Loans may be extended, and Prime Rate
Loans may be converted into Eurodollar Loans, only if no Default or Event of
Default is in existence on the date of extension or conversion, (iii) Loans
extended as, or converted into, Eurodollar Loans shall be subject to the terms
of the definition of "Interest Period" set forth in Section 1.1 and shall be in
such minimum amounts as provided in Section 2.l(b)(ii) and (iv) any request for
extension or conversion of a Eurodollar Loan which shall fail to specify an
Interest Period shall be deemed to be a request for an Interest Period of one
month. Each such extension or conversion shall be effected by the Borrower by
giving a Notice of Extension/Conversion in the form of Exhibit 3.2 (or telephone
notice promptly confirmed in writing) to the Agent prior to 10:30 A.M.
(Milwaukee, Wisconsin time) on the Business Day of, in the case of the
conversion of a Eurodollar Loan into a Prime Rate Loan and on the second
Business Day prior to, in the case of the extension of a Eurodollar Loan as, or
conversion of a Prime Rate Loan into, a Eurodollar Loan, the date of the
proposed extension or conversion, specifying the date of the proposed extension
or conversion, the Loans to be so extended or converted, the Types of Loans into
which such Loans are to be converted and, if appropriate, the applicable
Interest Periods with respect thereto. Each request for extension or conversion
shall constitute a representation and warranty by the Borrower of the matters
specified in paragraphs (a) and (b), and in (c) or (d), of Section 5.2. In the
event the Borrower fails to request extension or conversion of any Eurodollar
Loan in accordance with this Section, or any such conversion or extension is not
permitted or required by this Section, then such Loans shall be automatically
converted into Prime Rate Loans at the end of their Interest Period. The Agent
shall give each Lender notice as promptly as practicable of any such proposed
extension or conversion affecting any Loan.
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3.3 Reductions in Commitments and Prepayments.
(a) Reductions in Revolving Commitment. The Borrower may from time to
time permanently reduce the Aggregate Revolving Committed Amount in whole or in
part without premium or penalty except as provided in Section 3.10 upon three
(3) Business Days' prior written notice to the Agent; provided that after giving
effect to any such voluntary reduction the sum of Revolving Loans plus Swing
Line Loans then outstanding shall not exceed the Aggregate Revolving Committed
Amount, as reduced. Except as otherwise specified herein, partial reductions in
the Aggregate Revolving Committed Amount shall in each case be in a minimum
aggregate amount of $5,000,000 and integral multiples of $500,000 in excess
thereof.
(b) Mandatory Prepayment on Revolving Loans. If at any time the
aggregate amount of Revolving Loans plus Swing Line Loans then outstanding shall
exceed the Aggregate Revolving Committed Amount, as reduced from time to time,
the Borrower shall immediately make payment on the Swing Line Loans and then, if
necessary, on the Revolving Loans, in an amount sufficient to eliminate the
deficiency. Any such payments shall be applied first to Prime Rate Loans and
then to Eurodollar Loans in direct order of their Interest Period maturities.
(c) Voluntary Prepayments. Loans may be prepaid in whole or in part
without premium or penalty except as provided in Section 3.10. Any partial
prepayment shall be (i) if a Prime Rate Loan, in a minimum aggregate amount of
$250,000 and integral multiples of $100,000 in excess thereof; and (ii) if a
Eurodollar Loan, in a minimum aggregate amount of $2,500,000 and integral
multiples of $500,000 in excess thereof (or, in either case, the remaining
outstanding principal balance of the Revolving Loans). Except as otherwise
specified herein, amounts prepaid on the Revolving Loans may be reborrowed in
accordance with the provisions hereof.
3.4 Fees.
(a) Commitment Fee. The Borrower shall pay to the Agent for the account
of each Lender a commitment fee equal to the Aggregate Revolving Committed
Amount multiplied by 0.20% per annum (the "Commitment Fee"). The Commitment Fee
shall accrue from the Closing Date and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December
commencing on June 28, 2002 through the Revolving Termination Date. The
Commitment Fee shall accrue at all times after the above-mentioned commencement
date, including at any time during which one or more conditions in Article V are
not met.
(b) Other Fees. The Borrower agrees to pay to the Agent such other
closing, administrative and structuring fees referred to in that certain Agent's
fee letter dated May 31, 2002.
3.5 Capital Adequacy. If any Lender has reasonably determined that the
adoption or effectiveness of any applicable law, rule or regulation regarding
capital adequacy made after the date hereof, or any change therein made after
the date hereof, or any change in the interpretation or administration thereof
by any Governmental Authority, central bank or comparable agency charged with
the interpretation or administration thereof made after the date hereof, or
23
compliance by such Lender or its parent company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency made after the date hereof, has or
would have the effect of reducing the rate of return on such Lender's or its
parent company's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration the policies of such Lender and its parent company with respect to
capital adequacy), then, within 10 Business Days after the Borrower's receipt of
the certificate referred to in the next sentence, the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender and its
parent company for such reduction; provided that no such amounts shall be
payable with respect to reduction in rate of return incurred more than three (3)
months before such Lender demands compensation under this Section 3.5. A
certificate as to the amount of such reduction in rate of return, the good faith
basis therefor and setting forth in reasonable detail the calculations used by
the applicable Lender to arrive at the amount or amounts claimed to be due,
shall be submitted to the Borrower and the Agent. Each determination by a Lender
of amounts owing under this Section shall be rebuttably presumptive evidence of
the matters set forth therein. No demand for payment under this Section shall be
made unless the Lender shall make comparable demands of other similarly situated
borrowers. The provisions of this Section shall survive termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.6 Inability To Determine Interest Rate. If prior to the first day of
any Interest Period, the Agent shall have reasonably determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, the
Agent shall give telecopy or telephonic notice thereof to the Borrower and the
Lenders as soon as practicable thereafter. If such notice is given (a) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as Prime Rate Loans, (b) any Loans that were to have been
converted on the first day of such Interest Period to or continued as Eurodollar
Loans shall be converted to or continued as Prime Rate Loans and (c) any
outstanding Eurodollar Loans shall be converted, on the first day of such
Interest Period, to Prime Rate Loans. Until such notice has been withdrawn by
the Agent, no further Eurodollar Loans shall be made or continued as such, nor
shall the Borrower have the right to convert Prime Rate Loans to Eurodollar
Loans.
3.7 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof occurring after the Closing Date shall make it unlawful for
any Lender to make or maintain Eurodollar Loans as contemplated by this Credit
Agreement, (a) such Lender shall promptly give written notice of such
circumstances to the Borrower and the Agent (which notice shall be withdrawn
whenever such circumstances no longer exist), (b) the commitment of such Lender
hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert a Prime Rate Loan to Eurodollar Loans shall forthwith be canceled and,
until such time as it shall no longer be unlawful for such Lender to make or
maintain Eurodollar Loans, such Lender shall then have a commitment only to make
a Prime Rate Loan when a Eurodollar Loan is requested and (c) such Lender's
Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to
24
Prime Rate Loans on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period as required by
law. If any such conversion of a Eurodollar Loan occurs on a day which is not
the last day of the then current Interest Period with respect thereto, the
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to Section 3.10.
3.8 Requirements of Law. If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
(a) (shall subject such Lender to any tax of any kind whatsoever on or
in respect of any Eurodollar Loans made by it or its obligation to make
Eurodollar Loans, or change the basis of taxation of payments to such Lender in
respect thereof except for Non-Excluded Taxes covered by Section 3.9 (including
Non-Excluded Taxes imposed solely by reason of any failure of such Lender to
comply with its obligations under Section 3.9(b)) and changes in taxes measured
by or imposed upon the overall net income, or franchise tax (imposed in lieu of
such net income tax), of such Lender or any branch or Affiliate thereof); or
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar condition or requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any office
of such Lender which is not otherwise included in the determination of the
Eurodollar Rate hereunder;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, upon notice to the
Borrower from such Lender, through the Agent, in accordance herewith, the
Borrower shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable, provided that, in any such case, the Borrower may elect to convert
the Eurodollar Loans made by such Lender hereunder to Prime Rate Loans by giving
the Agent at least one Business Day's notice of such election, in which case the
Borrower shall promptly pay to such Lender, upon demand, without duplication,
such amounts, if any, as may be required pursuant to Section 3.10. If any Lender
becomes entitled to claim any additional amounts pursuant to this subsection, it
shall provide prompt notice thereof to the Borrower, through the Agent,
certifying (a) that one of the events described in this Section 3.8 has occurred
and describing in reasonable detail the nature of such event, (b) as to the
increased cost or reduced amount resulting from such event and (c) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this subsection shall be submitted by such Lender, through
the Agent, to the Borrower and shall be conclusive in the absence of manifest
error. No demand for payment under this Section shall be made unless the Lender
shall make comparable demands of other
25
similarly situated borrowers. This covenant shall survive the termination of
this Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.9 Taxes.
(a) Except as provided below in this subsection, all payments made by
the Borrower under this Credit Agreement and any Notes shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding taxes measured by
or imposed upon the overall net income of any Lender or any branch or Affiliate
thereof, and all franchise taxes, branch taxes, taxes on doing business or taxes
on the overall capital or net worth of any Lender, or any branch or Affiliate
thereof, in each case imposed in lieu of net income taxes, imposed: (i) by the
jurisdiction under the laws of which such Lender, branch or Affiliate is
organized or is located, or in which its principal executive office is located,
or any nation within which such jurisdiction is located or any political
subdivision thereof; or (ii) by reason of any connection between the
jurisdiction imposing such tax and such Lender, branch or Affiliate other than a
connection arising solely from such Lender having executed, delivered or
performed its obligations, or received payment under or enforced, this Credit
Agreement or any Notes. If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") are required to
be withheld from any amounts payable to the Agent or any Lender hereunder or
under any Notes, (A) the amounts so payable to the Agent or such Lender shall be
increased to the extent necessary to yield to the Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Credit Agreement and
any Notes, provided, however, that the Borrower shall be entitled to deduct and
withhold any Non-Excluded Taxes and shall not be required to increase any such
amounts payable to any Lender that is not organized under the laws of the United
States of America or a state thereof if such Lender fails to comply with the
requirements of paragraph (b) of this subsection whenever any Non-Excluded Taxes
are payable by the Borrower, and (B) as promptly as possible thereafter the
Borrower shall send to the Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Agent the required receipts or other required documentary evidence,
the Borrower shall indemnify the Agent and the Lenders for any incremental
taxes, interest or penalties that may become payable by the Agent or any Lender
as a result of any such failure. The agreements in this subsection shall survive
the termination of this Credit Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) At least five Business Days prior to the first day on which
interest or Fees are payable hereunder for the account of any Lender, each
Lender that is not incorporated under the laws of the United States of America,
or a state thereof, agrees that it will deliver to each of the Borrower and the
Agent two duly completed copies of United States Internal Revenue Service Form
W-8ECI or W-8BEN, certifying in either case that such Lender is entitled to
receive payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes. Each Lender which so
delivers a Form W-8ECI or W-8BEN
26
further undertakes to deliver to each of the Borrower and the Agent two
additional copies of such form (or a successor form) on or before the date that
such form expires (currently, three successive calendar years) or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent forms so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrower or the Agent, in
each case certifying that such Lender is entitled to receive payments under this
Credit Agreement and the Notes without deduction or withholding of any United
States federal income taxes, unless an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender advises the Borrower
and the Agent that it is not capable of receiving payments without any
deductions or withholding of United States federal income tax.
3.10 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur (other than through such Lender's gross negligence or willful
misconduct) as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Credit Agreement, (b) default by the Borrower in making any
prepayment of a Eurodollar Loan after the Borrower has given a notice thereof in
accordance with the provisions of this Credit Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day which is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of the applicable Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Eurodollar Loans provided for herein over (ii) the amount of
interest (as reasonably determined by such Lender) which would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurodollar market, provided, however,
that the amount of such lost interest, if any, shall be discounted to a present
value as of the date of the indemnification payment, using as the applicable
discount rate(s) the rate(s) of per annum interest used by such Lender in making
the computations pursuant to the foregoing clause (ii). This covenant shall
survive the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
3.11 Pro Rata Treatment. Except to the extent otherwise provided
herein:
(a) Loans. Each Loan, each payment or prepayment of principal of any
Loan, each payment of interest on the Loans, each payment of Fees (other than
fees payable to the Agent for its own account pursuant to Section 3.4), each
reduction of the Revolving Committed Amount and each conversion or extension of
any Loan, shall be allocated pro rata among the Lenders in accordance with the
respective Commitment Percentages relating to such respective Loans.
27
(b) Advances. Unless the Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the amount that
would constitute its Commitment Percentage of such borrowing available to the
Agent, the Agent may assume that such Lender is making such amount available to
the Agent, and the Agent may, in reliance upon such assumption, make available
to the Borrower a corresponding amount. If such amount is not made available to
the Agent by such Lender within the time period specified therefor hereunder,
such Lender shall pay to the Agent, on demand, such amount with interest thereon
at a rate equal to the Federal Funds Rate for the period until such Lender makes
such amount immediately available to the Agent. A certificate of the Agent
submitted to any Lender with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error. If such Lender's
Commitment Percentage of such borrowing is not made available to the Agent by
such Lender within two business Days of the date of the related borrowing, (i)
the Agent shall notify the Borrower of the failure of such Lender to make such
amount available to the Agent and the Agent shall also be entitled to recover
such amount with interest thereon at the rate per annum applicable to Prime Rate
Loans hereunder, on demand, from the Borrower and (ii) then the Borrower may,
without waiving any rights it may have against such Lender, (x) request the
Lender serving as Agent to increase its Commitment Percentage and make such
borrowing available, which request such Lender may in its sole discretion
approve or deny, and (y) if the Lender serving as Agent shall deny a request
submitted to it pursuant to the foregoing clause (x), borrow a like amount on an
unsecured basis from any commercial bank for a period ending on the date upon
which such Lender does in fact make such borrowing available; provided, however,
that at the time any such replacement borrowing is made and at all times while
such amount is outstanding the Borrower would be permitted to borrow such amount
pursuant to Section 2.1 of this Credit Agreement.
3.12 Sharing of Payments. The Lenders agree among themselves that, in
the event that any Lender shall obtain payment in respect of any Loan or any
other obligation owing to such Lender under this Credit Agreement through the
exercise of a right of setoff, banker's lien or counterclaim, or pursuant to a
secured claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim, received
by such Lender under any applicable bankruptcy, insolvency or other similar law
or otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a participation in such Loans and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such participation as fully as if such Lender were a holder of
such Loan or other obligation in the amount of such participation. Except as
otherwise expressly provided in this Credit Agreement,
28
if any Lender or the Agent shall fail to remit to the Agent or any other Lender
an amount payable by such Lender or the Agent to the Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.12 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.12 to share in the benefits of any recovery on such secured claim.
3.13 Place and Manner of Payments. Except as otherwise specifically
provided herein, all payments hereunder shall be made to the Agent in Dollars in
immediately available funds, without offset, deduction, counterclaim or
withholding of any kind, at its offices at the Agent's office specified in
Schedule 11.2 not later than 1:00 P.M. (Milwaukee, Wisconsin time) on the date
when due. Payments received after such time shall be deemed to have been
received on the next succeeding Business Day. The Agent may, at the Borrower's
request, debit the amount of any such payment which is not made by such time to
Account No. 112045887 maintained by the Borrower with the Agent or any other
account which may be maintained by the Borrower with the Agent and designated
for such purpose by the Borrower. The Borrower shall, at the time it makes any
payment under this Credit Agreement, specify to the Agent the Loans, Fees or
other amounts payable by the Borrower hereunder to which such payment is to be
applied (and in the event that it fails so to specify, or if such application
would be inconsistent with the terms hereof, the Agent shall distribute such
payment to the Lenders in such manner as the Agent may determine to be
appropriate in respect of obligations owing by the Borrower hereunder, subject
to the terms of Section 3.11). The Agent will distribute such payments to such
Lenders, if any such payment is received prior to 1:00 p.m. (Milwaukee,
Wisconsin time) on a Business Day in like funds as received prior to the end of
such Business Day and otherwise the Agent will distribute such payment to such
Lenders on the next succeeding Business Day. Whenever any payment hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day, except that in
the case of Eurodollar Loans, if the extension would cause the payment to be
made in the next following calendar month, then such payment shall instead be
made on the next preceding Business Day. All computations of interest and fees
shall be made on the basis of actual number of days elapsed over a year of 360
days except computations of interest on Prime Rate Loans, which shall be made on
the basis of actual number of days elapsed over a year of 365 or 366 days, as
applicable. Interest shall accrue from and include the date of borrowing, but
exclude the date of payment.
3.14 Transfers at Borrower's Request. In the event that any Lender
requests payment by the Borrower of any additional amounts pursuant to Section
3.5, 3.7, 3.8 or 3.9, then, provided that no Default or Event of Default has
occurred and is continuing at such time, the Borrower may, at its own expense
(such expense to include any transfer fee payable to the Agent under Section
11.6(b)), and in its sole discretion require such Lender to transfer and assign
in whole or in part, without recourse (in accordance with and subject to the
terms and conditions of Section 11.6(b)), all or part of its interests, rights
and obligations under this Credit Agreement to an Eligible Transferee which
shall assume such assigned obligations; provided that (i) the other Lenders may,
by written notice to the Agent, the Lenders and the Borrower, in their
respective
29
discretion, elect to assume such Lender's Revolving Commitment, pro rata based
upon the respective Commitment Percentages of the other Lenders so electing to
assume such Lender's Revolving Commitments hereunder, (ii) such Eligible
Transferee which is not a Lender shall be reasonably acceptable to the Required
Lenders, (iii) such assignment shall not relieve the Borrower from its
obligations to pay such additional amounts that may be due in accordance with
Section 3.5, 3.7, 3.8 or 3.9, (iv) such assignment shall not conflict with any
law, rule or regulation or order of any court or other Governmental Authority
and (v) the Borrower or such Eligible Transferee shall have paid to the
assigning Lender in immediately available funds the principal of and interest
accrued to the date of such payment on the Loans made by it hereunder and all
accrued Fees and other amounts owed to it hereunder.
SECTION 4
GUARANTY
4.1 The Guaranty. Each of the Credit Parties hereby jointly and
severally guarantees to each Lender and the Agent as hereinafter provided the
prompt payment of the Credit Party Obligations in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration or otherwise)
strictly in accordance with the terms thereof. The Credit Parties hereby further
agree that if any of the Credit Party Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration or
otherwise), the Credit Parties will, jointly and severally, promptly pay the
same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Credit Party Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration or otherwise) in accordance with the
terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any other
of the Credit Documents, the guaranty obligations of each Credit Party hereunder
shall be limited to an aggregate amount equal to the largest amount that would
not render its obligations hereunder subject to avoidance under Section 548 of
the U.S. Bankruptcy Code or any comparable provisions of any applicable state
law.
4.2 Obligations Unconditional. The obligations of the Credit Parties
under Section 4.1 hereof are joint and several, absolute and unconditional,
irrespective of the value, genuineness, validity or enforceability of any of the
Credit Documents, or any other agreement or instrument referred to therein, or
any substitution, release or exchange of any other guarantee of or security for
any of the Credit Party Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.2 that the obligations of the
Credit Parties hereunder shall be absolute and unconditional under any and all
circumstances other than indefeasible payment in full. Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or more
of the following shall not alter or impair the liability of any Credit Party
hereunder which shall remain absolute and unconditional as described above:
30
(i) at any time or from time to time, without notice to any
Credit Party, the time for any performance of or compliance with any of
the Credit Party Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any
of the Credit Documents or any other agreement or instrument referred
therein shall be done or omitted;
(iii) the maturity of any of the Credit Party Obligations
shall be accelerated, or any of the Credit Party Obligations shall be
modified, supplemented or amended in any respect, or any right under
any of the Credit Documents or any other agreement or instrument
referred to therein shall be waived or any other guarantee of any of
the Credit Party Obligations or any security therefor shall be released
or exchanged in whole or in part or otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Agent or any
Lender or Lenders as security for any of the Credit Party Obligations
shall fail to attach or be perfected; or
(v) any of the Credit Party Obligations shall be determined to
be void or voidable (including, without limitation, for the benefit of
any creditor of any Credit Party) or shall be subordinated to the
claims of any Person (including, without limitation, any creditor of
any Credit Party).
With respect to its obligations hereunder, each Credit Party hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Lender exhaust any right,
power or remedy or proceed against any Person under any of the Credit Documents
or any other agreement or instrument referred to therein, or against any other
Person under any other guarantee of, or security for, any of the Credit Party
Obligations.
4.3 Reinstatement. The obligations of the Credit Parties under this
Section 4 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Person in respect of the Credit Party
Obligations is rescinded or must be otherwise restored by any holder of any of
the Credit Party Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and each Credit Party agrees that it
will indemnify each of the Agent and each Lender on demand for all reasonable
costs and expenses (including, without limitation, reasonable attorneys' fees)
incurred by the Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
4.4 Certain Additional Waivers. Without limiting the generality of the
provisions of any other Section of this Section 4, each Credit Party further
agrees that it shall have no right of recourse to security for the Credit Party
Obligations. Each of the Credit Parties further agrees that it shall have no
right of subrogation, reimbursement or indemnity, nor any right of recourse to
security, if any, for the Credit Party Obligations until indefeasible payment in
full of all such obligations shall have been made.
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4.5 Remedies. The Credit Parties agree that, as between the Credit
Parties, on the one hand, and the Agent and the Lenders, on the other hand, the
Credit Party Obligations may be declared to be forthwith due (and payable as
provided in Section 9 hereof and shall be deemed to have become automatically
due and payable in the circumstances provided in said Section 9) for purposes of
Section 4.1 hereof notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing such Credit Party Obligations from
becoming automatically due and payable) as against any other Person and that, in
the event of such declaration (or such Credit Party Obligations being deemed to
have become automatically due and payable), such Credit Party Obligations
whether or not due and payable by any other Person) shall forthwith become due
and payable by the Credit Parties for purposes of said Section 4.1.
4.6 Continuing Guarantee. The guarantee in this Section 4 is a
continuing guarantee, and shall apply to all Credit Party Obligations whenever
arising.
SECTION 5
CONDITIONS
5.1 Conditions to Closing Date. This Credit Agreement shall close upon
satisfaction of the following conditions precedent:
(a) Execution of Agreement. The Agent shall have received (i) multiple
counterparts of this Credit Agreement for each Lender, executed by a duly
authorized officer of each party hereto, and (ii) for the account of each Lender
a Revolving Note.
(b) Liability and Casualty Insurance. The Agent shall have received
copies of insurance policies or certificates of insurance evidencing liability
and casualty insurance meeting the requirements set forth herein.
(c) Certificate of Financial Condition. The Agent shall have received a
Certificate of Financial Condition in the form of Exhibit 5.1(c) with
appropriate insertions and attachments.
(d) Financial Information. The Agent shall have received copies of the
Audited Financial Statements and interim quarterly company-prepared consolidated
financial statements for the Borrower and its Consolidated Subsidiaries for each
fiscal quarter ended thereafter until the Closing Date together with such other
financial information as any Lender may reasonably request.
(e) Corporate Documents. The Agent shall have received each of the
following:
(i) Articles of Incorporation. Copies of the articles of
incorporation or other applicable charter documents of the Borrower and
each of the other Credit Parties certified to be true and complete as
of a recent date by the appropriate governmental authority of the state
of its incorporation or organization.
32
(ii) Resolutions. Copies of resolutions of the board of
directors of the Borrower and of each of the other Credit Parties
approving and adopting the Credit Documents, the transactions
contemplated therein and authorizing execution and delivery thereof,
certified by the secretary or assistant secretary as of the Closing
Date to be true and correct and in force and effect as of such date.
(iii) Bylaws. A copy of the Bylaws of the Borrower and of each
of the other Credit Parties certified by the secretary or assistant
secretary as of the Closing Date to be true and correct and in force
and effect as of such date.
(iv) Good Standing. Copies of certificates of good standing,
existence or its equivalent with respect to the Borrower and each of
the other Credit Parties certified as of a recent date by the
appropriate Governmental Authorities of the state of incorporation or
organization and each other state in which the failure to so qualify
and be in good standing would have a material adverse effect on the
business or operations of the Borrower or other Credit Party in such
state.
(f) Officer's Certificate. The Agent shall have received, with a
counterpart for each Lender, a certificate of a duly authorized officer of each
of the Borrower and each of the other Credit Parties dated the Execution Date,
substantially in the form of Exhibit 5.1(f) with appropriate insertions and
attachments.
(g) Legal Opinion of Counsel. The Agent shall have received, with a
copy for each Lender, an opinion of ▇▇▇▇▇▇▇, Best & Friedrich LLP, counsel for
the Borrower and the Guarantors, dated the Closing Date and addressed to the
Agent and the Lenders, in form and substance satisfactory to the Agent and the
Lenders.
(h) Fees. The Agent shall have received all Fees owing pursuant to
Section 3.4.
(i) Subsection 5.2 Conditions. The conditions specified in subsections
5.2(a) and (b) shall be satisfied on the Closing Date as if Loans were to be
made on such date.
(j) Other Documents. The Agent shall have received such other
approvals, opinions, documents or materials as the Agent or any Lender shall
reasonably request.
(k) Additional Matters. All documents and legal matters in connection
with the transactions contemplated by this Credit Agreement shall be reasonably
satisfactory in form and substance to the Agent and the Lenders.
5.2 Conditions to All Loans. The obligation of each Lender to make any
Loans hereunder (including the initial Loans to be made hereunder) is subject to
the satisfaction of the following conditions precedent on the date of making
such Loan:
(a) Representations and Warranties. Except as modified pursuant to
Section 6.16, the representations and warranties made by the Borrower and the
other Credit Parties herein or which are contained in any certificate furnished
at any time under or in connection
33
herewith shall be true and correct on and as of the date of such Loan as if made
on and as of such date.
(b) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect to the
Loan to be made on such date unless such Default or Event of Default shall have
been waived in accordance with this Credit Agreement.
(c) Additional Conditions to Loans. All conditions set forth in Section
2.1 or 2.2, as applicable, shall have been satisfied.
Each request for Loans and each acceptance by the Borrower of a Loan
shall be deemed to constitute a representation and warranty by the Borrower as
of the date of such Loan that the applicable conditions in paragraphs (a) and
(b), and in (c), of this subsection have been satisfied.
SECTION 6
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make
the Loans herein provided for, each of the Credit Parties hereby represents and
warrants to the Agent and to each Lender that as of the Closing Date, and at all
times thereafter (except as specifically set forth below in this Section 6):
6.1 Financial Statements. Prior to the Closing Date the Borrower has or
will have furnished to the Lenders (a) the audited consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of December 31, 2001, and
related audited statements of income, shareholders' equity and cash flows for
the year ended on that date, together with an unqualified opinion thereon by
Ernst & Young LLP, and (b) the unaudited consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of March 24, 2002 and related
statements of income, shareholders' equity and cash flows for the periods ended
on such date, prepared by the Borrower. Such financial statements were prepared
in accordance with GAAP consistently applied throughout the periods involved,
are correct and complete and fairly present the consolidated financial condition
of the Borrower and such Subsidiaries as of such dates and the results of their
operations for the periods ended on such dates, subject, in the case of the
unaudited interim statements, to the absence of footnotes, audit and normal
year-end adjustments. Since March 24, 2002 there has been no development or
event which has had a Material Adverse Effect.
6.2 Ownership of Properties; Liens and Encumbrances. Each of the
Borrower and its Subsidiaries has good and marketable title (or has an interest
as a lessee) to all property, real and personal, as reflected on the most recent
financial statement of the Borrower furnished to the Lenders, and all property
purported to have been acquired (or leased) since the date of such financial
statement, except property sold or otherwise
34
disposed of in the ordinary course of business, the property of any Subsidiaries
that are sold through an asset sale or otherwise disposed of and the return of
any leased property upon the termination of any lease subsequent to such date;
and all such property is free of any Lien except Permitted Liens. To the Best
Knowledge of the Borrower all owned and leased buildings and equipment of the
Borrower used in the Borrower's business are in good operating condition, repair
and working order, except for ordinary wear and tear and insured losses, and, to
the Best Knowledge of the Borrower conform to all applicable laws, ordinances
and regulations the violation of which would have a Material Adverse Effect. To
the Best Knowledge of the Borrower, the Borrower possesses adequate trademarks,
trade names, copyrights, patents, service marks and licenses, or rights thereto,
for the present and planned future conduct of its business substantially as now
conducted, without any known conflict with the rights of others which would
result in a Material Adverse Effect.
6.3 Corporate Existence; Compliance with Law. Each of the Borrower and
its Subsidiaries (a) is duly incorporated, validly existing and in good standing
(or similar concept under applicable law, including, without limitation, the
concept of active status under the laws of the State of Wisconsin) under the
laws of the jurisdiction of its incorporation, (b) has the corporate power and
authority and the legal right to own and operate all its material property, to
lease the material property it operates as lessee and to conduct the business in
which it is currently engaged, (c) is duly qualified as a foreign limited
liability company or corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification and (d) is in compliance with all
Requirements of Law; except to the extent that the failure to comply with any of
(a) through (d) would not, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
6.4 Corporate Power; Authorization; Enforceable Obligations. Each of
the Borrower and the other Credit Parties has full power and authority and the
legal right to make, deliver and perform the Credit Documents to which it is
party and has taken all necessary limited liability company or corporate action
to authorize the execution, delivery and performance by it of the Credit
Documents to which it is party. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the borrowings hereunder or with the
execution, delivery or performance of any Credit Document by the Borrower or the
other Credit Parties (other than those which have been obtained or which the
failure to obtain would not, in the aggregate, have a Material Adverse Effect)
or with the validity or enforceability of any Credit Document against the
Borrower or the Guarantors. Each Credit Document to which it is a party has been
duly executed and delivered on behalf of the Borrower or the other Credit
Parties, as the case may be. Each Credit Document to which it is a party
constitutes a legal, valid and binding obligation of the Borrower or the
Guarantors, as the case may be, enforceable against the Borrower or the other
Credit Parties, as the case may be, in accordance with its terms.
6.5 No Legal Bar; No Default. The execution, delivery and performance
of the Credit Documents, the borrowings thereunder and the use of the proceeds
of the Loans will not violate any Requirement of Law the violation of which
would reasonably be expected to have a Material Adverse Effect or any
Contractual Obligation of the Borrower or its Subsidiaries the violation of
which would reasonably be expected to have a Material Adverse Effect (except
those as to which waivers or consents have been obtained), and will not result
in, or require, the creation or
35
imposition of any Lien (other than Permitted Liens) on any of its or their
respective properties or revenues pursuant to any Requirement of Law or
Contractual Obligation. Neither the Borrower nor any of its Subsidiaries is in
default under or with respect to any of its Contractual Obligations in any
respect which would reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
6.6 No Material Litigation. Except as set forth in its Audited Financial
Statements, no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best knowledge of the
Borrower and the other Credit Parties, threatened by or against the Borrower or
any of its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to the Credit Documents or any Loan or any of the
transactions contemplated hereby, or (b) which, if adversely determined, would
reasonably be expected to (i) cause an adverse financial effect on the Borrower
or any of its Subsidiaries in excess of $20,000,000 or (ii) have a Material
Adverse Effect.
6.7 Investment Company Act. Neither the Borrower nor any of the other
Credit Parties is an "investment company", or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
6.8 Federal Regulations. No part of the proceeds of any Loan hereunder
will be used directly or indirectly for any purpose which violates, or which
would be inconsistent with, the provisions of Regulation T, U or X of the Board
of Governors of the Federal Reserve System as now and from time to time
hereafter in effect. The Borrower and its Subsidiaries taken as a group do not
own "margin stock" except margin stock which is a Permitted Investment, but only
to the extent otherwise permitted by this Agreement.
6.9 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" within the meaning of Section 412 of the Code (or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code, except to the extent that any such occurrence or failure to comply
would not reasonably be expected to have a Material Adverse Effect. No
termination of a Single Employer Plan has occurred resulting in any liability
that has remained underfunded, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period which would reasonably be expected to have
a Material Adverse Effect. The present value of all accrued benefits under each
Single Employer Plan (based on those assumptions used to fund such Plans) did
not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by an amount which, as determined in
accordance with GAAP, would reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any Commonly Controlled Entity is currently
subject to any liability for a complete or partial withdrawal from a
Multiemployer Plan which would reasonably be expected to have a Material Adverse
Effect. For purposes of this Section 6.9 only, the parties hereto agree that
"Material Adverse Effect" shall include any event referred to in this Section
6.9 which would or could be reasonably expected to cause a reduction in
Consolidated Net Worth of ten percent (10%) or more.
36
6.10 Environmental Matters. Except as set forth in the Audited Financial
Statements and except to the extent that all of the following, in the aggregate,
would not reasonably be expected to have a Material Adverse Effect:
(a) To the Best Knowledge of the Borrower and the other Credit Parties,
the facilities and properties owned, leased or operated by the Borrower or any
of its Subsidiaries (the "Properties") do not contain any Materials of
Environmental Concern in amounts or concentrations which (i) constitute a
violation of, or (ii) could give rise to liability under, any Environmental Law.
(b) To the Best Knowledge of the Borrower and the other Credit Parties,
the Properties and all operations at the Properties are in compliance, and have
in the last five years been in compliance, in all material respects with all
applicable Environmental Laws, and there is no contamination at, under or about
the Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Borrower or any of its Subsidiaries
(the "Business").
(c) Neither the Borrower nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the Business, nor, to the Best Knowledge
of the Borrower, do the Borrower nor the other Credit Parties have knowledge or
reason to believe that any such notice will be received or is being threatened.
(d) To the Best Knowledge of the Borrower and the other Credit Parties,
Materials of Environmental Concern have not been transported or disposed of from
the Properties in violation of, or in a manner or to a location which could give
rise to liability under any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on or
under any of the Properties in violation of, or in a manner that could give rise
to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the Best Knowledge of the Borrower and the other Credit Parties,
threatened, under any Environmental Law to which the Borrower or any Subsidiary
is or will be named as a party with respect to the Properties or the Business,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Properties or the Business.
(f) To the Best Knowledge of the Borrower and the other Credit Parties,
there has been no unremediated release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of the Borrower or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or in
amounts or in a manner that could give rise to liability under Environmental
Laws.
37
6.11 Use of Proceeds. The Loans hereunder may be used for working capital
and other general corporate purposes not prohibited by this Credit Agreement,
but expressly including (subject to the restrictions contained in Sections 8.4,
8.5 and 8.10) the purchase of some or all of the equity or assets of other
business, the issuance of Dividends and the purchase or redemption of JESTA
Units or the advancement of funds therefore to JESTA.
6.12 Subsidiaries. Set forth on Schedule 6.12 is a complete and accurate
list of all Subsidiaries of the Borrower. The outstanding capital stock and
other equity interests of all such Subsidiaries is validly issued, fully paid
and nonassessable and is owned, free and clear of all Liens.
6.13 Taxes. To the Best Knowledge of the Borrower and the other Credit
Parties, each of the Borrower and its Subsidiaries has filed, or caused to be
filed, all material tax returns (federal, state, local and foreign) required to
be filed and paid all taxes shown thereon to be due (including interest and
penalties), except for such taxes (i) which are not yet delinquent or (ii) as
are being contested in good faith and by proper proceedings, and against which
adequate reserves are being maintained in accordance with GAAP. The Borrower is
not aware of any proposed material tax assessments against it or any of its
Subsidiaries. The most recent completed audit of the Borrower's federal income
tax returns was for the Borrower's income tax year ending December 31, 1996, and
all taxes shown by such returns (together with any adjustments arising out of
such audit, if any) have been paid.
6.14 Solvency. The Borrower, individually, and the Borrower and its
Subsidiaries, collectively, are and, after execution of this Credit Agreement on
the Execution Date and after giving effect to the Indebtedness and Guarantee
Obligations incurred hereunder on and after the Closing Date, will be Solvent.
6.15 Accuracy of Information. All information furnished by the Borrower
to the Lenders is correct and complete in all material respects as of the date
furnished and does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make such information not misleading.
6.16 Amendments to Schedule 6.12. To the extent otherwise permitted by
this Agreement, the Borrower may, from time to time, amend Schedule 6.12 by
delivering (effective upon receipt) to the Agent and each Lender a copy of such
amended Schedule 6.12 which shall (i) be dated the date of delivery, (ii) be
certified by a duly authorized officer of the Borrower as true, complete and
correct as of such date as delivered in replacement for the Schedule 6.12
previously in effect, and (iii) show in reasonable detail (by blacklining or
other appropriate graphic means) the changes from the predecessor Schedule 6.12.
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SECTION 7
AFFIRMATIVE COVENANTS
For so long as this Credit Agreement is in effect and until the Revolving
Commitments have terminated, no Note remains outstanding and unpaid and the
Loans, together with interest, Fees and all other amounts owing to the Agent or
any Lender hereunder, are paid in full, the Borrower shall, and in the case of
subsections 7.3, 7.4, 7.5, 7.6 and 7.8 shall cause each of its Subsidiaries, to:
7.1 Annual Financial Statement. Furnish to the Agent within 90 days after
the end of each fiscal year of the Borrower a copy for each Lender of a balance
sheet of the Borrower as of the close of such fiscal year and related statements
of income, retained earnings and cash flows for such year, setting forth in each
case in comparative form corresponding figures from the preceding annual audit,
prepared in accordance with GAAP applied on a consistent basis, audited by a
nationally recognized firm of independent certified public accountants selected
by the Borrower, and accompanied by an unqualified opinion thereon by such
accountants to the effect that such financial statements present fairly, in all
material respects, the financial position of the Borrower and all Consolidated
Subsidiaries as of the end of such fiscal year, and the results of their
operations and their cash flows for such fiscal year, in accordance with GAAP,
and that such audit was conducted in accordance with generally accepted auditing
practices. Each such annual statement shall be accompanied by a certificate of
an authorized financial officer of the Borrower containing the calculations
demonstrating the Borrower's compliance or noncompliance with the financial
covenants contained in Section 7.9 hereof. The Borrower will furnish to the
Agent within 90 days after the end of each fiscal year of the Borrower a copy
for each Lender of a statement of income, including statements of revenues and
expenses for each of the Borrower's business segments and corporate charges. All
such financial statements, and the financial statements referred to in Section
7.2 hereof, except as provided herein, shall be furnished in consolidated form
for the Borrower and all Consolidated Subsidiaries which it may at the time
have.
7.2 Interim Financial Statements.
(a) Furnish to the Agent within 45 days after the end of each fiscal
quarter of each fiscal year of the Borrower, a copy for each Lender of the
Borrower's 10-Q, prepared in the manner set forth in Section 7.1 hereof for the
annual statements, certified to be accurate and complete by an authorized
financial officer of the Borrower, subject to audit, footnotes and normal
year-end adjustments, and accompanied by the certificate of such officer (i) to
the effect that there exists no Default or Event of Default or, if any Default
or Event of Default exists, specifying the nature thereof, the period of
existence thereof and what action the Borrower proposes to take with respect
thereto, and (ii) containing the calculations demonstrating the Borrower's
compliance or noncompliance with the financial covenants contained in Section
7.9 hereof.
(b) Furnish to the Agent, (i) contemporaneously with the filing or
mailing thereof, copies for each Lender of all material of a financial nature
filed with the Securities
39
Exchange Commission or sent to the shareholders of the Borrower, and (ii) such
other financial information as any Lender may from time to time reasonably
request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, in
accordance with industry practice (subject, where applicable, to specified grace
periods) all its material obligations of whatever nature and any additional
costs that are imposed as a result of any failure to so pay, discharge or
otherwise satisfy such obligations (including, without limitation, obligations
to pay taxes), except when the amount or validity of such obligations and costs
is currently being contested in good faith by appropriate proceedings and
reserves, if applicable, in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be.
7.4 Conduct of Business and Maintenance of Existence. Except as otherwise
permitted by Sections 8.4 and 8.5, continue to engage in business of the same
general type as now conducted by it on the date hereof and preserve, renew and
keep in full force and effect its corporate existence and take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its business; comply with all Contractual Obligations
and Requirements of Law applicable to it except to the extent that failure to
comply therewith would not, in the aggregate, have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all material property useful
and necessary in its business in good working order and condition (ordinary wear
and tear and insured losses excepted); maintain with financially sound and
reputable insurance companies insurance (including insurance against claims and
liabilities arising out of the manufacture or distribution of any products or
the provision of any services) with respect to its properties and businesses in
at least such amounts and against at least such risks as are usually insured
against in the same general area by companies engaged in the same or a similar
business; and furnish to the Agent, on the Closing Date and not less often than
annually thereafter, and in any event promptly upon any material change thereto,
full information as to the insurance carried.
7.6 Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its businesses and activities; and permit,
during regular business hours and upon reasonable notice by the Agent, the Agent
and, after the occurrence and during the continuance of a Default or an Event of
Default, any of the Lenders to visit and inspect any of its properties and
examine and make abstracts from any of its books and records (other than
materials protected by the attorney-client privilege and materials which the
Borrower may not disclose without violation of a confidentiality obligation
binding upon it) at any reasonable time and as often as may reasonably be
desired, and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers and employees
of the Borrower and its Subsidiaries and with its independent certified public
accountants.
7.7 Notices. Give notice to the Agent (which shall promptly transmit such
notice to each Lender) of:
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(a) immediately (and in any event within two (2) Business Days) after the
Borrower knows or has reason to know thereof, the occurrence of any Default or
Event of Default;
(b) promptly, any default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or the Borrower which
would reasonably be expected to have a Material Adverse Effect;
(c) promptly, any litigation, or any investigation or proceeding
(including, without limitation, any environmental proceeding) known to the
Borrower, affecting the Borrower or any of its Subsidiaries or the Borrower
which, if adversely determined, would reasonably be expected to have a Material
Adverse Effect;
(d) as soon as possible and in any event within 30 days after the
Borrower knows or has reason to know thereof: (i) the occurrence or expected
occurrence of any Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any Lien in favor of the
PBGC or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the terminating, Reorganization or Insolvency of, any Plan; and
(e) promptly, any other development or event which would reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
responsible officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
7.8 Environmental Laws.
(a) Comply in all material respects with, and ensure compliance in all
material respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply in all material respects with and
maintain, and ensure that all tenants and subtenants obtain and comply in all
material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws except to the extent that, with respect to all of the above, failure to do
so would not reasonably be expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings would not
reasonably be expected to have a Material Adverse Effect; and
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(c) Defend, indemnify and hold harmless the Agent and the Lenders, and
their respective employees, agents, officers and directors, from and against any
and all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Borrower, any of its Subsidiaries or the Properties, or any
orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorneys' fees and consultant's fees,
investigation and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification therefor.
The agreements in this paragraph shall survive repayment of the Notes and all
other amounts payable hereunder.
7.9 Financial Covenants.
(a) Consolidated Funded Debt Ratio. There shall be maintained as of the
end of each fiscal quarter, as determined for the four fiscal quarter period
preceding the date of determination, a Consolidated Funded Debt Ratio of not
greater than 1.0:1.0.
(b) Fixed Charge Coverage Ratio. There shall be maintained as of the end
of each fiscal quarter, as determined for the four fiscal quarter period
preceding the date of determination, a Fixed Charge Coverage Ratio of not less
than 1.75:1.0.
(c) Consolidated Tangible Net Worth. Consolidated Tangible Net Worth
shall not be less, as of the end of any fiscal quarter of the Borrower, than
$290,000,000.
(d) Consolidated Rent Expense. Consolidated Rent Expense shall not exceed
$40,000,000 during any fiscal year of the Borrower.
7.10 Additional Subsidiary Guarantors.
(a) If a Subsidiary of the Borrower which is not a Guarantor hereunder (a
"Non-Guarantor Subsidiary") shall at any time constitute more than either
(i) 10% of Consolidated Total Assets, or
(ii) 10% of Consolidated EBITDA,
then the Borrower will promptly notify the Agent thereof, and promptly cause
such Non-Guarantor Subsidiary to become a Guarantor hereunder by way of
execution of a Joinder Agreement.
(b) In addition to the requirements set forth in the foregoing clause
(a), if the Non-Guarantor Subsidiaries shall, as a group, at any time constitute
in the aggregate more than either
(i) 10% of Consolidated Total Assets, or
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(ii) 10% of Consolidated EBITDA,
(collectively, the "Threshold Requirement"), then the Borrower will promptly
notify the Agent thereof, and promptly cause one or more of the Non-Guarantor
Subsidiaries to become a Guarantor hereunder by way of execution of a Joinder
Agreement, such that immediately after the joinder of such Subsidiaries as
Guarantors hereunder, the remaining Non-Guarantor Subsidiaries shall not, as a
group, exceed the Threshold Requirement.
SECTION 8
NEGATIVE COVENANTS
For so long as this Credit Agreement is in effect and until the Revolving
Commitments have terminated, no Note remains outstanding and unpaid and the
Loans, together with interest, Fees and all other amounts owing to the Agent or
any Lender hereunder, are paid in full, the Borrower shall not, and shall not
permit any of its Subsidiaries, to:
8.1 Indebtedness. Contract, create, incur, assume or permit to exist any
Indebtedness; provided, however, so long as no Event of Default exists or would
result therefrom, the Borrower and its Subsidiaries may incur unsecured
Indebtedness and Indebtedness secured by Permitted Liens.
8.2 Liens. Contract, create, incur, assume or permit to exist any Lien
with respect to any of its property or assets of any kind (whether real or
personal, tangible or intangible), whether now owned or hereafter acquired,
except for Permitted Liens.
8.3 Nature of Business. Except as otherwise permitted by Section 8.4,
alter the character of its business in any material respect from that conducted
as of the Closing Date.
8.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
(a) dissolve, liquidate or wind up its affairs, sell, transfer, lease or
otherwise dispose of any substantial part of its property or assets outside of
the ordinary course of business or agree to do so at a future time except the
following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, lease or transfer of property or assets by a Credit
Party other than the Borrower to a domestic Credit Party.
As used herein, "substantial part" shall mean property and assets, the book
value of which, when added to the book value of all other assets sold, leased or
otherwise disposed of by the Borrower and its Subsidiaries (other than in the
ordinary course of business), shall in any fiscal year exceed 15% of
Consolidated Net Worth, in each case determined as of the end of the immediately
preceding fiscal year; or
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(b) purchase, lease or otherwise acquire (in a single transaction or a
series of related transactions) all or any substantial part of the property or
assets of any Person other than purchases or other acquisitions of inventory,
leases, materials, property and equipment in the ordinary course of business,
(except as otherwise limited or prohibited herein), or enter into any
transaction of merger or consolidation, except for (i) investments or
acquisitions permitted pursuant to Section 8.5, (ii) the merger or consolidation
of the Borrower with or into another Credit Party, provided that in any such
case the Borrower shall be the surviving entity, (iii) the merger or
consolidation of any wholly-owned Subsidiary with or into any other wholly-owned
Subsidiary, (iv) the merger or consolidation of any wholly-owned Subsidiary with
or into the Borrower provided that in any such case the Borrower shall be the
surviving entity, and (v) so long as no Event of Default exists or would result
therefrom, purchases of substantially all of the assets or capital stock of any
Person, whether or not such transaction involves a merger or consolidation.
8.5 Advances, Investments and Loans. The Borrower will not, nor will it
permit any Subsidiary to, lend money or extend credit or make advances to any
Person, or purchase or acquire any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any Person except for
Permitted Investments.
8.6 Guarantee Obligations. Contract, create, incur, assume or permit to
exist any Guarantee Obligations, except Permitted Guarantee Obligations.
8.7 Transactions with Affiliates. Except as permitted in subsection (iii)
of the definition of Permitted Investments or as set forth in the Audited
Financial Statements, enter into any transaction or series of transactions,
whether or not in the ordinary course of business, with any officer, director,
shareholder or Affiliate (other than a Credit Party) other than on terms and
conditions substantially as favorable as would be obtainable in a comparable
arm's-length transaction with a Person other than an officer, director,
shareholder or Affiliate (other than a Credit Party).
8.8 Ownership of Subsidiaries. Create, form or acquire a Subsidiary,
unless any such Subsidiary shall become an Additional Credit Party, if required,
in accordance with the provisions of Section 7.10.
8.9 Fiscal Year. Change its fiscal year.
8.10 Dividends. Make any payment, distribution or Dividend (other than a
dividend or distribution payable solely in stock or equity interest of the
Person making the dividend or distribution) on or any payment on account of the
purchase, redemption or retirement of, or any other distribution on, any
partnership interest, limited liability company interest, share of any class of
stock or other ownership interest in such Person (collectively,
"Distributions"); provided, notwithstanding the foregoing, so long as no Event
of Default exists or would result therefrom, the Borrower and its Subsidiaries
may make Distributions.
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SECTION 9
EVENTS OF DEFAULT
Upon the occurrence of any of the following events (each an "Event of
Default"):
(a) The Borrower shall fail to pay any principal on any Note when due in
accordance with the terms thereof or hereof; or the Borrower shall fail to pay
any interest on any Note or any Fee or other amount payable hereunder when due
in accordance with the terms thereof or hereof and such failure shall continue
unremedied for five (5) Business Days or any Guarantor shall fail to pay on the
Guaranty in respect of any of the foregoing or in respect of any other Guarantee
Obligations thereunder; or
(b) Any representation or warranty made or deemed made by the Borrower or
other Credit Party herein, or in any of the other Credit Documents or which is
contained in any certificate, document or financial or other statement furnished
by the Borrower or other Credit Party at any time under or in connection with
this Agreement shall prove to have been incorrect, false or misleading in any
material respect on or as of the date made or deemed made; or
(c) The Borrower shall (i) default in the due performance or observance
of Section 7.9 or Section 8, (ii) default in the observance or performance of
Section 7.1 or 7.2 and such default shall continue unremedied for a period of 10
days or more after written notice thereof from the Agent or the Required
Lenders, or (iii) default in the observance or performance of any other term,
covenant or agreement contained herein, or in any of the other Credit Documents
(other than as described in subsections 9(a), 9(b), 9(c)(i) or 9(c)(ii) above),
and such default shall continue unremedied for a period of 30 days or more after
written notice thereof from the Agent or the Required Lenders; or
(d) The Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the Notes)
in a principal amount outstanding of at least $5,000,000 in the aggregate for
the Borrower and its Subsidiaries or in the payment of any matured Guarantee
Obligation in a principal amount outstanding of at least $5,000,000 in the
aggregate for the Borrower and its Subsidiaries beyond the period of grace (not
to exceed 30 days), if any, provided in the instrument or agreement under which
such Indebtedness or Guarantee Obligation was created and such Indebtedness or
Guarantee Obligation has matured by its terms or is accelerated or is overtly
threatened to be accelerated (except any such Indebtedness or Guarantee
Obligations which the Borrower and its Subsidiaries are disputing in good faith
and for which they have established adequate reserves or Indebtedness owing by
one Subsidiary to the Borrower or another Subsidiary that is not being
accelerated and for which no enforcement or collection action has been
commenced); or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness in a principal amount
outstanding of at least $5,000,000 in the aggregate for the Borrower and its
Subsidiaries or Guarantee Obligation in a principal amount outstanding of at
least $5,000,000 in the aggregate for the Borrower and its Subsidiaries or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or the holder
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or holders of such Indebtedness or beneficiary or beneficiaries of such
Guarantee Obligation or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries shall cause or overtly threaten to cause, with
the giving of notice if required, such Indebtedness to become due prior to its
stated maturity or such Guarantee Obligation to become payable; or
(e) (i) The Borrower or any other Credit Party shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any other Credit Party shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the Borrower
or any other Credit Party any case, proceeding or other action of a nature
referred to in clause (i) above which (X) results in the entry of an order for
relief or any such adjudication or appointment or (Y) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Borrower or any other Credit Party any case, proceeding
other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any other Credit Party shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Borrower or any other Credit Party shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(f) One or more judgments or decrees shall be entered against the
Borrower or any other Credit Party and such judgments or decrees shall not have
been paid and satisfied, vacated, discharged, stayed or bonded pending appeal
within 60 days from the entry thereof and involve in the aggregate a liability
(to the extent not paid when due or covered by insurance) of $1,000,000 or more;
or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower, any of its Subsidiaries or any Commonly Controlled Entity shall, or in
the reasonable opinion of the Required Lenders is likely to, incur any liability
in connection with a withdrawal from, or the Insolvency or Reorganization of,
any Multiemployer Plan or (vi) any other similar
46
event or condition shall occur or exist with respect to a Plan; and in each case
in clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(h) (i) any Person or group of Persons which is unacceptable to the
Required Lenders obtains control of more than 50% of the issued and outstanding
voting stock of the Borrower; or
(i) The Guaranty or any provision thereof shall cease to be in full force
and effect or any Credit Party or any Person acting by or on behalf of any
Credit Party shall deny or disaffirm any Credit Party's obligations under the
Guaranty; provided, however, if the Borrower (i) sells or otherwise disposes of
all of the capital stock of a Credit Party or (ii) sells all or substantially
all of the assets of a Credit Party and subsequently merges or dissolves such
Credit Party out of existence, in either case in compliance with the terms of
this Agreement, the Guaranty of such Credit Party shall terminate and such
termination shall not be deemed an Event of Default; or
(j) Any other Credit Document shall fail to be in full force and effect;
then, and in any such event, (A) if such event is an Event of Default
specified in paragraph (e) above, automatically the Revolving
Commitments shall immediately terminate and the Loans (with accrued
interest thereon), and all other amounts under the Credit Documents
shall immediately become due and payable, and (B) if such event is any
other Event of Default, either or both of the following actions may be
taken: (i) with the written consent of the Required Lenders, the Agent
may, or upon the written request of the Required Lenders, the Agent
shall, by notice to the Borrower declare the Revolving Commitments to
be terminated forthwith, whereupon the Revolving Commitments shall
immediately terminate; and (ii) with the written consent of the
Required Lenders the Agent may, or upon the written request of the
Required Lenders, the Agent shall, by notice of default to the
Borrower, declare the Loans (with accrued interest thereon) and all
other amounts owing under this Agreement and the Credit Documents to be
due and payable forthwith, whereupon the same shall immediately become
due and payable. Except as expressly provided above in this Section 9,
presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment. Each Lender hereby designates and appoints U.S. Bank
National Association as Agent hereunder of such Lender to act as specified
herein and in the other Credit Documents, and each such Lender hereby authorizes
the Agent as the agent for such Lender, to take such action on its behalf under
the provisions of this Credit Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated by
47
the terms hereof and of the other Credit Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere herein and in the other Credit Documents, the Agent shall
not have any duties or responsibilities, except those expressly set forth herein
and therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Credit Agreement or any of the other Credit Documents, or
shall otherwise exist against the Agent. The provisions of this Section are
solely for the benefit of the Agent and the Lenders and none of the Credit
Parties shall have any rights as a third party beneficiary of the provisions
hereof. In performing its functions and duties under this Credit Agreement and
the other Credit Documents, the Agent shall act solely as agent of the Lenders
and does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for the Borrower or any other Credit
Party.
10.2 Delegation of Duties. The Agent may execute any of its duties
hereunder or under the other Credit Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
10.3 Exculpatory Provisions. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection herewith or in connection with any of the other Credit
Documents except for its or such Person's own gross negligence or willful
misconduct, or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any of the Credit
Parties contained herein or in any of the other Credit Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection herewith or in connection with
the other Credit Documents, or enforceability or sufficiency herefor of any of
the other Credit Documents, or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Agent shall not be responsible to any
Lender for the effectiveness, genuineness, validity, enforceability,
collectability or sufficiency of this Credit Agreement, or any of the other
Credit Documents or for any representations, warranties, recitals or statements
made herein or therein or made by the Borrower or any Credit Party in any
written or oral statement or in any financial or other statements, instruments,
reports, certificates or any other documents in connection herewith or therewith
furnished or made by the Agent to the Lenders or by or on behalf of the Credit
Parties to the Agent or any Lender or be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or of the existence or possible existence of any Default
or Event of Default or to inspect the properties, books or records of the Credit
Parties.
10.4 Reliance on Communications. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel
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(including, without limitation, counsel to the Agent and any of the Lenders,
independent accountants and other experts selected by the Agent with reasonable
care). The Agent may deem and treat the Lenders as the owner of their respective
interests hereunder for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Agent in
accordance with Section 11.6(d). The Agent shall be fully justified in failing
or refusing to take any action under this Credit Agreement or under any of the
other Credit Documents unless it shall first receive such advice or concurrence
of the Required Lenders, or all Lenders, as the case may be, as it deems
appropriate. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or under any of the other Credit Documents in
accordance with a request of the Required Lenders (or to the extent specifically
provided in Section 11.1, all the Lenders) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders
(including their successors and assigns).
10.5 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder (other
than the failure by the Borrower to pay any principal or interest on any Note
when due in accordance with the terms thereof or hereof) unless the Agent has
received notice from a Lender or a Credit Party referring to the Credit
Document, stating that a Default or Event of Default exists, and specifying the
particulars thereof. In the event that the Agent receives such a notice or the
Borrower fails to pay any principal or interest on any Note when due, the Agent
shall give prompt notice thereof to the Lenders. The Agent shall take such
action with respect to such Default or Event of Default as shall be directed by
the Required Lenders, otherwise than an action that the Agent reasonably
believes would be a violation of law or otherwise prohibited by the Credit
Documents.
10.6 Non-Reliance on Agent and Other Lenders. Each Lender expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agent or any Affiliate thereof
hereinafter taken, including any review of the affairs of the Borrower, shall be
deemed to constitute any representation or warranty by the Agent to any Lender.
Each Lender represents to the Agent that it has, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Borrower and made its
own decision to make its Loans hereunder and enter into this Credit Agreement.
Each Lender also represents that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Credit Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, assets, property, financial or other conditions, prospects or
creditworthiness of the Borrower which may come into the possession of the Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
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10.7 Indemnification. The Lenders agree to indemnify the Agent in its
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Commitment Percentages (or if the Revolving Commitments have expired
or been terminated, in accordance with the respective principal amounts of
outstanding Loans of the Lenders), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the termination of this
Credit Agreement) be imposed on, incurred by or asserted against the Agent in
its capacity as such in any way relating to or arising out of this Credit
Agreement or the other Credit Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Agent under or in connection with any of
the foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Agent. If any indemnity furnished to the
Agent for any purpose shall, in the reasonable opinion of the Agent, be
insufficient or become impaired, the Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such additional
indemnity is furnished.
10.8 Agent in its Individual Capacity. The Agent and its Affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with the Borrower or any other Credit Party as though the Agent were not Agent
hereunder. With respect to its Loans, the Agent shall have the same rights,
obligations and powers under this Credit Agreement as any Lender and may
exercise the same as though they were not Agent, and the terms "Lender" and
"Lenders" shall include the Agent in its individual capacity.
10.9 Successor Agent. The Agent may, at any time, resign upon 20 days'
written notice to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent (which shall
be a Lender) with the prior written consent of the Borrower, which consent shall
not be unreasonably withheld. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30
days after the notice of resignation, as appropriate, then the retiring Agent
shall select a successor Agent provided such successor is a Lender hereunder or
a commercial bank organized under the laws of the United States of America or of
any State thereof and has a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations as Agent,
as appropriate, under this Credit Agreement and the other Credit Documents and
the provisions of this Section 10.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Credit
Agreement.
10.10 Documentation Agent and Syndication Agent. The Lenders identified
on the title page to this Agreement as "Documentation Agent" and "Syndication
Agent" shall have no right, power, obligation or liability other than those
applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders so identified shall have or be deemed to have any fiduciary
50
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any Lender so identified in deciding to enter into this
Agreement or in taking or omitting any action hereunder.
51
SECTION 11
MISCELLANEOUS
11.1 Amendments, Waivers. Neither this Credit Agreement, nor any of the
Notes, nor any of the other Credit Documents, nor any terms hereof or thereof
may be amended, supplemented, waived or modified except in accordance with the
provisions of this subsection. The Required Lenders may, or, with the written
consent of the Required Lenders, the Agent may, from time to time, (a) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Credit Documents for the purpose of adding, amending or
deleting any provisions of this Credit Agreement or the other Credit Documents
or (b) waive, on such terms and conditions as the Required Lenders may specify
in such instrument, any of the requirements of this Credit Agreement or the
other Credit Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, waiver,
supplement, modification or release shall (i) reduce the amount or extend the
scheduled date of maturity of any Loan or Note or any installment thereon, or
reduce the stated rate of any interest or fee payable hereunder (other than
interest at the increased post-default rate) or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration date of any
Lender's Revolving Commitment, in each case without the written consent of each
Lender directly affected thereby, or (ii) amend, modify or waive any provision
of this Section 11.1 or reduce the percentage specified in the definition of
Required Lenders, or consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Credit Agreement, in each case
without the written consent of all the Lenders, or (iii) amend, modify or waive
any provision of Section 10 without the written consent of the then Agent, or
(iv) amend Section 3.12 without the written consent of all Lenders. Any such
waiver, any such amendment, supplement or modification and any such release
shall apply equally to each of the Lenders and shall be binding upon the
Borrower, the Lenders, the Agent and all future holders of the Notes. In the
case of any waiver, the Borrower, the Lenders and the Agent shall be restored to
their former position and rights hereunder and under the outstanding Loans and
Notes and other Credit Documents, and any Default or Event of Default waived
shall be deemed to be cured and not continuing; but no such waiver shall extend
to any subsequent or other Default or Event of Default, or impair any right
consequent thereon.
11.2 Notices. Except as otherwise provided in Section 2, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made (i) when
delivered by hand, (ii) when transmitted via telecopy (or other facsimile
device) on a Business Day between the hours of 8:30 A.M. and 5:00 P.M.
(Milwaukee, Wisconsin time) or on the following Business Day (if sent after 5:00
P.M. Milwaukee, Wisconsin time) to the number set out herein, (iii) the day
following the day on which the same has been delivered prepaid to a reputable
national overnight air courier service, or (iv) the third Business Day following
the day on which the same is sent by first class mail, postage prepaid, in each
case, addressed as follows in the case of the Borrower and the Agent, and as set
forth on Schedule 11.2 in the case of the Lenders, or to such other address as
may be hereafter notified by the respective parties hereto and any future
holders of the Notes:
52
The Credit Parties:
The Agent: U.S. Bank National Association
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Agent or any Lender, any right, remedy, power
or privilege hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
11.4 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Credit Agreement and the Notes and the making of the Loans,
provided that all such representations and warranties shall terminate on the
date upon which the Revolving Commitments have been terminated and all amounts
owing hereunder and under any Notes have been paid in full.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the preparation and execution of, and any amendment,
supplement or modification to, the Credit Documents and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, together with the reasonable fees
and disbursements of counsel to the Agent, (b) to pay out-of-pocket expenses,
including attorneys' fees, incurred by a Lender in connection with the
negotiation, preparation and execution of the Credit Documents, not to exceed
$2,500 for each Lender, and reasonable expenses, including reasonable attorneys'
fees, in connection with any future amendments or modifications hereto, (c) to
pay or reimburse each Lender and the Agent for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Credit Agreement and any other Credit Documents, including, without
limitation, the reasonable fees and disbursements of counsel to the Agent and to
the Lenders (including reasonable
53
allocated costs of in-house legal counsel), (d) on demand, to pay, indemnify,
and hold each Lender and the Agent harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, the Credit Documents and any such other
documents, and (e) to pay, indemnify, and hold each Lender and the Agent and
their Affiliates, officers, directors, shareholders, employees and agents
harmless from and against, any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of the Credit Documents and any such
other documents and the use, or proposed use, of proceeds of the Loans (all the
foregoing, collectively, the "Indemnified Liabilities"); provided, however, that
the Borrower shall not have any obligation hereunder to the Agent or any Lender
with respect to Indemnified Liabilities arising from (i) the gross negligence or
willful misconduct of the Agent or any such Lender, (ii) legal proceedings
commenced against or disputes among the Agent or any Lender by any other Lender
or its participants or the Agent, or (iii) the violation by the Agent or any
such Lender of an express provision of the Credit Documents, if so determined by
a final judgment of a court of competent jurisdiction. The agreements in this
Section 11.5 shall survive repayment of the Loans, Notes and all other amounts
payable hereunder.
11.6 Successors and Assigns; Participations; Purchasing Lenders.
(a) This Credit Agreement shall be binding upon and inure to the benefit
of the Borrower, the Lenders, the Agent, all future holders of the Notes and
their respective successors and assigns, except that the Borrower may not assign
or transfer any of its rights or obligations under this Credit Agreement or the
other Credit Documents without the prior written consent of each Lender and no
Lender may assign or transfer any of its rights or obligations under this Credit
Agreement or the other Credit Documents without the prior written consent of the
Borrower, except as otherwise permitted by this Section 11.6.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law and, so long as no Event of
Default has occurred and is continuing, with the consent of the Borrower if the
Participant (as defined below) is not an Affiliate of such Lender (which consent
shall not be unreasonably withheld), at any time sell to one or more banks or
other entities ("Participant" or "Participants") participating interests in any
Loan owing to such Lender, any Note held by such Lender, any Revolving
Commitment of such Lender, or any other interest of such Lender hereunder,
provided, however, that at all times such Lender shall retain for its own
account interests in Loans owing to such Lender in an aggregate outstanding
principal amount which, when added to the aggregate outstanding principal amount
of any interests in Loans sold by such Lender to Participants who are Affiliates
of such Lender, equals not less than fifty percent (50%) of the aggregate
principal amount of all such Lender's outstanding Loans. In the event of any
such sale by a Lender of participating interests to a Participant, such Lender's
obligations under this Credit Agreement to the other parties to this Credit
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the
54
performance thereof, such Lender shall remain the holder of any such Note for
all purposes under this Credit Agreement, and the Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Credit Agreement. No Lender shall
transfer or grant any participation under which the Participant shall have
rights to approve any amendment to or waiver of this Credit Agreement or any
other Credit Document except to the extent such amendment or waiver would (i)
extend the scheduled maturity of any Loan or Note or any installment thereon in
which such Participant is participating, or reduce the stated rate or extend the
time of payment of interest or Fees thereon except in connection with a waiver
of interest at the increased post-default rate) or reduce the principal amount
thereof, or increase the amount of the Participant's participation over the
amount thereof then in effect it being understood that a waiver of any Default
or Event of Default shall not constitute a change in the terms of such
participation, and that an increase in any Revolving Commitment or Loan shall be
permitted without consent of any Participant if the Participant's participation
is not increased as a result thereof, or (ii) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this Credit
Agreement. In the case of any such participation, the Participant shall not have
any rights under this Credit Agreement or any of the other Credit Documents (the
Participant's rights against such Lender in respect of such participation to be
those set forth in the agreement executed by such Lender in favor of the
Participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Lender had not sold such participation, provided
that each Participant shall be entitled to the benefits of Sections 3.6, 3.7,
3.8, 3.9 and 11.5 with respect to its participation in the Revolving Commitments
and the Loans outstanding from time to time; provided, that no Participant shall
be entitled to receive any greater amount pursuant to such Sections than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell or assign (i)
to any Lender or any Affiliate thereof, except that any such sale or assignment
shall be made only with the consent of the Borrower if such sale or assignment
would increase any amount payable by the Borrower hereunder, or (ii) to one or
more additional banks or financial institutions ("Purchasing Lenders"), except
that any such sale or assignment shall be made only with the consent of the
Agent and, so long as no Event of Default has occurred and is continuing or at
any time if any such sale or assignment would increase any amount payable by the
Borrower hereunder, the consent of the Borrower: all or any part of its rights
and obligations under this Credit Agreement and the Notes in minimum amounts of
$5,000,000 (or, if less, the entire amount of such Lender's obligations) if the
Purchasing Lender is not a Lender hereunder, or with no minimum amount if the
Purchasing Lender is a Lender hereunder, pursuant to a Commitment Transfer
Supplement, executed by such Purchasing Lender, such transferor Lender (and, in
the case of a Purchasing Lender that is not then a Lender or an Affiliate
thereof so long as no Event of Default has occurred and is continuing, by the
Borrower and the Agent), and delivered to the Agent for its acceptance and
recording in the Register (as defined below). Upon such execution, delivery,
acceptance and recording, from and after the Transfer Effective Date specified
in such Commitment Transfer Supplement, (x) the Purchasing Lender thereunder
shall be a party hereto and, to the extent provided in such Commitment Transfer
Supplement, have the rights and
55
obligations of a Lender hereunder with a Revolving Commitment as set forth
therein, and (y) the transferor Lender thereunder shall, to the extent provided
in such Commitment Transfer Supplement, be released from its obligations under
this Credit Agreement (and, in the case of a Commitment Transfer Supplement
covering all or the remaining portion of a transferor Lender's rights and
obligations under this Credit Agreement, such transferor Lender shall cease to
be a party hereto). Such Commitment Transfer Supplement shall be deemed to amend
this Credit Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Lender and the resulting adjustment of
Commitment Percentages arising from the purchase by such Purchasing Lender of
all or a portion of the rights and obligations of such transferor Lender under
this Credit Agreement and the Notes. On or prior to the Transfer Effective Date
specified in such Commitment Transfer Supplement, the Borrower, at its own
expense, shall execute and deliver to the Agent in exchange for the Note
delivered to the Agent pursuant to such Commitment Transfer Supplement a new
Note to the order of such Purchasing Lender in an amount equal to the Revolving
Commitment assumed by it pursuant to such Commitment Transfer Supplement and,
unless the transferor Lender has not retained a Revolving Commitment hereunder,
a new Note to the order of the transferor Lender in an amount equal to the
Revolving Commitment retained by it hereunder. Except for the expense of
executing and delivering such new Note to the Agent pursuant to this Section,
the Borrower shall not be obligated to pay any transfer fees, costs or expenses
to the Agent or any Lender in connection with any such transfer. Such new Note
shall be dated the Closing Date and shall otherwise be in the form of the Note
replaced thereby. The Note surrendered by the transferor Lender shall be
returned by the Agent to the Borrower marked "canceled."
(d) The Agent shall maintain at its address referred to in Section 11.2 a
copy of each Commitment Transfer supplement delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Revolving Commitment of, and principal amount of the Loans owing to, each
Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Agent and the Lenders may
treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Credit Agreement. The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed by a
transferor Lender and a Purchasing Lender and, in the case of a Purchasing
Lender that is not then a Lender (or an Affiliate thereof, by the Borrower and
the Agent) together with payment to the Agent by the transferor Lender or the
Purchasing Lender, (as agreed between them) of a registration and processing fee
of $3,500 for each Purchasing Lender listed in such Commitment Transfer
Supplement, and the Notes subject to such Commitment Transfer Supplement, the
Agent shall (i) accept such Commitment Transfer Supplement, (ii) record the
information contained therein in the Register and (iii) give prompt notice of
such acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any Participant or
Purchasing Lender each, (a "Transferee") and any permitted prospective
Transferee any and all financial information in such Lender's possession
concerning the Borrower and its Affiliates
56
which has been delivered to such Lender by or on behalf of the Borrower pursuant
to this Credit Agreement or which has been delivered to such Lender by or on
behalf of the Borrower in connection with such Lender's credit evaluation of the
Borrower and its Affiliates prior to becoming a party to this Credit Agreement.
(g) At the time of each assignment pursuant to this Section 11.6 to a
Person which is not already a Lender hereunder and which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for Federal
income tax purposes, the respective assignee Lender shall provide to the
Borrower and the Agent the appropriate Internal Revenue Service Forms (and, if
applicable, a U.S. Tax Compliance Certificate) described in Section 3.9.
(h) Nothing herein shall prohibit any Lender from pledging or assigning
any of its rights under this Credit Agreement (including, without limitation,
any right to payment of principal and interest under any Note) to any Federal
Reserve Bank in accordance with applicable laws.
11.7 Set-off. In addition to any rights and remedies of the Lenders
provided by law (including, without limitation, other rights of set-off), each
Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon the occurrence and during the continuance of any Event of
Default, to setoff and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any Affiliate, branch or agency thereof to or for the
credit or the account of the Borrower, or any part thereof in such amounts as
such Lender may elect, against and on account of the obligations and liabilities
of the Borrower to such Lender hereunder and claims of every nature and
description of such Lender against the Borrower, in any currency, whether
arising hereunder, under the Notes or under any documents contemplated by or
referred to herein or therein, as such Lender may elect, whether or not such
Lender has made any demand for payment. The aforesaid right of set-off may be
exercised by such Lender against the Borrower or against any trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver or execution, judgment or attachment creditor of the Borrower, or
against anyone else claiming through or against the Borrower or any such trustee
in bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor, notwithstanding the
fact that such right of set-off shall not have been exercised by such Lender
prior to the occurrence of any Event of Default. Each Lender agrees promptly to
notify the Borrower and the Agent after any such set-off and application made by
such Lender; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application.
11.8 Confidentiality. The Agent and each Lender shall hold in confidence
any material nonpublic information delivered or made available to them by the
Borrower. Notwithstanding the foregoing, nothing herein shall prevent the Agent
or any Lender from disclosing any information delivered or made available to it
by the Borrower (a) to such Lender's Affiliates, the Agent or any Lender, (b)
upon the order of any court or administrative agency, (c) upon the request or
demand of any regulatory agency or authority, (d) which has been publicly
disclosed
57
other than as a result of a disclosure by the Agent or any Lender which is not
permitted by this Agreement, (e) to the extent reasonably required in connection
with any litigation to which the Agent, any Lender, or any of their respective
Affiliates may be a party, along with the Borrower, any Subsidiary or any of
their respective Affiliates, (f) to the extent reasonably required in connection
with the exercise of any right or remedy under this Agreement, (g) to such
Agent's or Lender's legal counsel and financial consultants and independent
auditors, and (h) to any Transferee or permitted prospective Transferee and such
Transferee or permitted prospective Transferee agrees in writing to be bound by
the duty of confidentiality under this Section to the same extent as if it were
a Lender hereunder.
11.9 Table of Contents and Section Headings. The table of contents and
the Section and subsection headings herein are intended for convenience only and
shall be ignored in construing this Credit Agreement.
11.10 Counterparts. This Credit Agreement may be executed by one or more
of the parties to this Credit Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Credit Agreement signed by
all the parties shall be lodged with the Borrower and the Agent.
11.11 Severability. Any provision of this Credit Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.12 Integration. This Credit Agreement, the Notes and the other Credit
Documents represent the agreement of the Borrower, the Agent and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Agent, the Borrower or any
Lender relative to the subject matter hereof not expressly set forth or referred
to herein or in the Notes.
11.13 Governing Law. This Credit Agreement and the Notes and the rights
and obligations of the parties under this Credit Agreement and the Notes shall
be governed by, and construed and interpreted in accordance with, the internal
laws of the State of Wisconsin without giving effect to its conflicts of law
provisions.
11.14 Consent to Jurisdiction and Venue. All judicial proceedings brought
against the Borrower or any other Credit Party with respect to this Credit
Agreement, any Note or any of the other Credit Documents shall be brought in any
state or federal court of competent jurisdiction in the State of Wisconsin, and,
by execution and delivery of this Credit Agreement, the Borrower and each of the
other Credit Parties accepts, for itself and in connection with its properties,
generally and unconditionally, the exclusive jurisdiction of the aforesaid
courts and irrevocably agrees to be bound by any final judgment rendered thereby
in connection with this Credit Agreement from which no appeal has been taken or
is available. The Borrower, each of the other Credit Parties, the Agent and the
Lenders irrevocably waive any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of forum non
58
conveniens which it may now or hereafter have to the bringing of any such action
or proceeding in any such jurisdiction. Nothing herein shall limit the right of
any Lender to bring proceedings against the Borrower and each of the other
Credit Parties in the court of any other jurisdiction.
11.15 Acknowledgements. Each of the Credit Parties hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of each Credit Document;
(b) neither the Agent nor any Lender has any fiduciary relationship with
or duty to the Credit Parties arising out of or in connection with this Credit
Agreement and the relationship between Agent and Lenders, on one hand, and the
Credit Parties, on the other hand, in connection herewith is solely that of
debtor and creditor; and
(c) no joint venture exists among the Lenders or among the Credit Parties
and the Lenders.
11.16 Waivers of Jury Trial. THE CREDIT PARTIES, THE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.17 Limitation of Liability. THE CREDIT PARTIES, THE AGENT AND THE
LENDERS HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR RECOVER FROM THE
OTHER PARTY ANY EXEMPLARY OR PUNITIVE DAMAGES.
59
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: JOURNAL COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive Vice-
President and Chief Financial
Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Treasurer
LENDERS: U.S. BANK NATIONAL ASSOCIATION
in its capacity as Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Vice President
Signature Page no. 1 to Credit Agreement
M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ BANK
By: /s/
------------------------------------
Its Senior Vice President
--------------------------------
By: /s/
------------------------------------
Its Assistant Vice President
--------------------------------
Signature Page no. 2 to Credit Agreement
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Signature Page no. 3 to Credit Agreement
▇▇▇▇▇ FARGO BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Vice President
Signature Page no. 4 to Credit Agreement
ASSOCIATED BANK, N.A.
By: /s/
------------------------------------
Its Assistant Vice President
--------------------------------
Signature Page no. 5 to Credit Agreement
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
Signature Page no. 6 to Credit Agreement
BANK HAPOALIM B.M.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President - Senior Lending
Officer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
Signature Page no. 7 to Credit Agreement
GUARANTORS: JOURNAL SENTINEL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant
Treasurer
JOURNAL BROADCAST GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant
Treasurer
JOURNAL HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant
Treasurer
JOURNAL BROADCAST CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant
Treasurer
NORTHSTAR PRINT GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant
Treasurer
Signature Page no. 8 to Credit Agreement
ADD, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant
Treasurer
NORLIGHT TELECOMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant
Treasurer
IPC COMMUNICATION SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant
Treasurer
JOURNAL BROADCAST GROUP OF KANSAS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant
Treasurer
JOURNAL BROADCAST GROUP OF TENNESSEE,
INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant
Treasurer
Signature Page no. 9 to Credit Agreement