EXHIBIT 4.1
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of May 28, 1999
among
LACROSSE FOOTWEAR, INC.,
as Borrower,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
and
FIRSTAR BANK MILWAUKEE, N.A.,
as Agent
TABLE OF CONTENTS
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SECTION 1 AMENDMENT AND RESTATEMENT....................................1
1.1 Amendment and Restatement....................................1
SECTION 2 DEFINITIONS..................................................2
2.1 Definitions..................................................2
2.2 Other Definitional Provisions................................2
2.3 Accounting Terms and Determinations.........................21
SECTION 3 CREDIT FACILITIES...........................................21
3.1 Revolving Loans.............................................21
3.2 Term Loan...................................................24
3.3 Letter of Credit Subfacility................................25
3.4 Swing Line Loans............................................28
3.5 Commercial Paper Transactions...............................31
SECTION 4 OTHER PROVISIONS RELATING TO CREDIT FACILITIES..............31
4.1 Default Rate................................................31
4.2 Extension and Conversion....................................31
4.3 Reductions in Commitments and Prepayments...................32
4.4 Fees........................................................33
4.5 Capital Adequacy............................................33
4.6 Inability To Determine Interest Rate........................34
4.7 Illegality..................................................34
4.8 Requirements of Law.........................................35
4.9 Taxes.......................................................36
4.10 Indemnity...................................................37
4.11 Pro Rata Treatment..........................................38
4.12 Sharing of Payments.........................................39
4.13 Place and Manner of Payments................................40
4.14 Indemnification: Nature of Issuing
Lender's Duties.............................................40
SECTION 5 CONDITIONS..................................................42
5.1 Conditions to Closing Date..................................42
5.2 Conditions to All Extensions of Credit......................43
SECTION 6 REPRESENTATIONS AND WARRANTIES..............................44
6.1 Financial Statements........................................44
6.2 Ownership of Properties; Liens and
Encumbrances................................................45
6.3 Corporate Existence; Compliance with Law....................45
6.4 Corporate Power; Authorization;
Enforceable Obligations.....................................46
6.5 No Legal Bar; No Default....................................46
6.6 No Material Litigation......................................46
6.7 Investment Company Act......................................46
6.8 Federal Regulations.........................................46
6.9 ERISA.......................................................47
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6.10 Environmental Matters.......................................47
6.11 Use of Proceeds............................................48
6.12 Subsidiaries...............................................48
6.13 Taxes......................................................48
6.14 Solvency...................................................49
6.15 Accuracy of Information....................................49
6.16 Year 2000..................................................49
SECTION 7 AFFIRMATIVE COVENANTS......................................50
7.1 Financial Statements.......................................50
7.2 Payment of Obligations.....................................51
7.3 Conduct of Business and Maintenance
of Existence...............................................51
7.4 Maintenance of Property; Insurance.........................51
7.5 Inspection of Property; Books and Records;
Discussions................................................52
7.6 Notices....................................................52
7.7 Environmental Laws.........................................52
SECTION 8 NEGATIVE COVENANTS.........................................54
8.1 Indebtedness...............................................54
8.2 Liens......................................................55
8.3 Nature of Business.........................................55
8.4 Consolidation, Merger, Sale or Purchase of
Assets, etc................................................55
8.5 Advances, Investments and Loans............................66
8.6 Guarantee Obligations......................................56
8.7 Transactions with Affiliates...............................56
8.8 Ownership of Subsidiaries..................................56
8.9 Fiscal Year................................................56
8.10 Prepayments of Indebtedness, etc...........................56
8.11 Dividends..................................................57
8.12 Financial Covenants........................................57
SECTION 9 EVENTS OF DEFAULT..........................................58
SECTION 10 AGENCY PROVISIONS..................................................61
10.1 Appointment................................................61
10.2 Delegation of Duties.......................................61
10.3 Exculpatory Provisions.....................................61
10.4 Reliance on Communications.................................62
10.5 Notice of Default..........................................63
10.6 Non-Reliance on Agent and Other Lenders....................63
10.7 Indemnification............................................63
10.8 Agent in its Individual Capacity...........................64
10.9 Successor Agent............................................64
SECTION 11 MISCELLANEOUS......................................................65
11.1 Amendments and Waivers.........................................65
11.2 Notices........................................................65
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11.3 No Waiver; Cumulative Remedies.................................67
11.4 Survival of Representations and Warranties.....................67
11.5 Payment of Expenses and Taxes..................................67
11.6 Successors and Assigns; Participations;
Purchasing Lenders.........................................68
11.7 Set-off........................................................71
11.8 Confidentiality...............................................72
11.9 Table of Contents and Section Headings........................73
11.10 Counterparts..................................................73
11.11 Severability..................................................73
11.12 Integration...................................................73
11.13 Governing Law.................................................73
11.14 Consent to Jurisdiction and Venue.............................73
11.15 Acknowledgments...............................................74
11.16 Waivers of Jury Trial.........................................74
11.17 Limitation of Liability.......................................74
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EXHIBITS AND SCHEDULES
Schedule 2.1(a) Existing Letters of Credit
Schedule 3.1(a) Schedule of Lenders and Commitments
Exhibit 3.1(b)(i) Form of Borrowing Notice for Revolving Loans
Schedule 3.1(d) Applicable Percentage
Exhibit 3.1(e) Form of Revolving Note
Exhibit 3.2(d) Form of Term Note
Exhibit 3.4(b) Form of Swing Line Note
Exhibit 4.2 Form of Notice for Conversion/Extension of Revolving Loans
or Term Loan
Exhibit 5.1(e) Form of Certificate of Secretary of the Borrower
Schedule 6.6 Litigation
Schedule 6.10 Environmental Matters
Schedule 6.12 Subsidiaries
Schedule 6.13 Tax Matters
Schedule 8.1(b) Indebtedness
Schedule 8.2 Permitted Liens
Schedule 11.2 Schedule of Lenders
Exhibit 11.6(c) Form of Commitment Transfer Supplement
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 28, 1999 (the
"Credit Agreement"), is by and among LACROSSE FOOTWEAR, INC., a Wisconsin
corporation (the "Borrower"), the several lenders identified on the signature
pages hereto and such other lenders as may from time to time become a party
hereto (the "Lenders") and FIRSTAR BANK MILWAUKEE, N.A., as Agent for the
Lenders (in such capacity, the "Agent").
RECITALS
WHEREAS, the Lenders and the Borrower are parties to that certain Credit
Agreement dated as of May 31, 1996, as amended to date (as so amended, the
"Original Credit Agreement");
WHEREAS, the Borrower now desires to amend and restate the Original
Credit Agreement, to among other things, increase the amount of the Revolving
Committed Amount, and the Lenders are willing to amend and restate the Original
Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby agreed
that:
SECTION 1
AMENDMENT AND RESTATEMENT
1.1 Amendment and Restatement. The Borrower and the Lenders agree that
the Original Credit Agreement is hereby amended by deleting all of the terms and
provisions therein and placing in lieu thereof the terms and provisions
contained in this Credit Agreement. The Borrower and the Lenders expressly
understand that all references to the "Agreement," the "Credit Agreement" or
such similar terms in all loan documents, documents, instruments and other
contracts shall hereafter refer to the Original Credit Agreement as amended and
restated by this Amended and Restated Credit Agreement. It is expressly
understood, however, that the obligations of the Borrower under the Original
Credit Agreement are not to be deemed paid or otherwise satisfied thereby and
are only to be restated by this Credit Agreement.
SECTION 2
DEFINITIONS
2.1 Definitions. As used in this Credit Agreement, the following terms
shall have the meanings specified below unless the context otherwise requires:
"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 five percent (5%) 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.
"Agent" means Firstar Bank Milwaukee, N.A. 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.
"Applicable Percentage" means, for any day, the rate per annum set
forth opposite the applicable pricing level then in effect as shown on
Schedule 3.1(d), it being understood that the Applicable Percentage for
(i) Revolving Loans shall be the percentage set forth under the column
"Applicable Percentage for Revolving Loans" and (ii) the Term Loan shall
be the percentage set forth under the column "Applicable Percentage for
Term Loan." The Applicable Percentage shall, in each case, be determined
and adjusted annually by the Agent as soon as practicable (but in any
event within 5 days) after delivery of the annual financial information
required by Section 7.1 (each an "Interest Determination Date") based on
the information contained in such financial information, with the first
such determination and adjustment hereunder to be made upon the Agent's
receipt of financial information for the fiscal year ended December 31,
1999. Such Applicable Percentage shall be effective from an Interest
Determination Date until the next such Interest Determination Date. The
Agent shall notify the Borrower and the Lenders of any change thereof.
Such determinations by the Agent shall be conclusive absent manifest
error. The initial Applicable Percentages shall be based on pricing level
1. The term "pricing level" shall be as referenced in Schedule 3.1(d).
2
"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.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Commercial Paper Obligations" means, at any time, the aggregate
principal amount outstanding of unsecured commercial paper issued by the
Borrower, which aggregate principal amount shall not exceed TWENTY-TWO
MILLION FIVE HUNDRED THOUSAND DOLLARS ($22,500,000).
"Commitment" means the Revolving Commitment, the LOC Commitment
and the Term Loan Commitment, individually or collectively, as
appropriate.
"Commitment Percentage" means the Revolving Commitment Percentage,
the LOC Commitment Percentage and/or the Term Loan Commitment Percentage,
as appropriate.
"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.
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"Consolidated Indebtedness" at any date of determination means the
total amount of all Indebtedness of the Borrower and its Subsidiaries as
of the end of the month on which such determination is made.
"Consolidated Net Income" means, for any period, the net after-tax
income of the Borrower and its Subsidiaries on a consolidated basis
determined in accordance with GAAP, excluding the after-tax effect of the
sum of (a) any net earnings of any Subsidiary which are unavailable for
the payment of dividends by the Borrower, (b) interest in any net
earnings of Persons in which the Borrower has an ownership interest,
other than Subsidiaries, not actually received by the Borrower, (c) gains
or losses arising from a write-up of assets subsequent to the date
hereof, (d) gains or losses arising from the acquisition of any
securities of the Borrower or any Subsidiary, (e) gains or losses (net of
any tax effect) resulting from the sale of any investments or capital
assets, (f) amortization of any deferred credit arising from the
acquisition of any Person or in the property or assets of any Person, (g)
earnings of any Subsidiary prior to the date it became a Subsidiary, (h)
earnings of any Person acquired by the Borrower or any Subsidiary through
purchase, merger or consolidation or otherwise for any period prior to
the date of acquisition, and (i) proceeds of any life insurance policies
payable to the Borrower or any Subsidiary.
"Consolidated Subsidiaries" means Subsidiaries whose financial
statements are consolidated with those of the Borrower in accordance with
GAAP.
"Consolidated Tangible Assets" at any date of determination means
the total amount of all assets of the Borrower and its Subsidiaries as of
the end of the month immediately preceding the date on which such
determination is made, determined in accordance with GAAP, less all
Intangible Assets.
"Consolidated Tangible Net Worth" shall be determined on a
consolidated basis in accordance with GAAP and means the excess, if any,
of all Consolidated Tangible Assets less all consolidated liabilities and
obligations of the Borrower and its Subsidiaries which would, in
accordance with GAAP, be included on the liability portion of the balance
sheet provided pursuant to the terms of Section 7.1.
"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
Letter of Credit Document, and all other related
4
agreements and documents issued or delivered hereunder or thereunder or
pursuant hereto or thereto.
"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, including the funding of a Participation
Interest in accordance with the terms hereof, (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.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"Domestic Lending Office" means the office or branch of the Lender
identified on Schedule 11.2, or such other office or branch as the Lender
may identify by written notice to the Borrower and the Agent.
"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.
"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 Lending Office" means the office or branch of the
Lender identified on Schedule 11.2, or such other office or branch as the
Lender may identify by written notice to the Borrower and the Agent.
"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:
5
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 any 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.
"Existing Letters of Credit" means those Letters of Credit
outstanding on the Closing Date and identified on Schedule 2.1(a).
"Extension of Credit" means as to any Lender, the making of a Loan
by such Lender or the issuance of, or participation in, a Letter of
Credit by such Lender.
"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.
"Fee" means any fee payable pursuant to Section 4.4.
"Firstar" means Firstar Bank Milwaukee, N.A.
6
"GAAP" means generally accepted accounting principles in effect in
the United States of America applied on a consistent basis.
"Government Acts" is defined in Section 4.14(a).
"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, counterindemnity 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 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.
"Indebtedness" means, with respect of any Person: (a) indebtedness
for borrowed money; (b) indebtedness for the deferred purchase price of
property or services for which the
7
Person is liable, contingently or otherwise, as obligor, guarantor or
otherwise; (c) obligations which are evidenced by notes, acceptances or
other instruments; (d) Capital Lease Obligations in respect of equipment;
and (e) any unfunded obligation of the Person to any Plan.
"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.
"Insolvent" means pertaining to a condition of Insolvency.
"Intangibles Assets" means any goodwill, patents, trademarks,
trade names, copyrights, operating rights, organizational or development
expenses, noncompetition agreements, investments in unconsolidated
Subsidiaries, loan placement fees, unamortized debt discount or expense,
unamortized deferred charges, and other assets properly classified as
intangible assets in accordance with GAAP; provided, however, that, for
purposes of this Credit Agreement, each such asset with a value of less
than $200,000 will be excluded from the foregoing definition up to an
aggregate maximum exclusion of $500,000.
"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 Reuters Screen LIBOR Page (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,
8
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 or the Term
Termination Date, as applicable and (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
(subject to accrual of interest and Fees for the period of such
extension), 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 4.13.
"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 thereafter, as
selected by the Borrower in the notice of borrowing or notice of
conversion given with respect thereto; and
(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 thereafter, as
selected by the Borrower by irrevocable notice to the Agent not
less than three 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
9
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) with regards to Revolving Loans, any Interest Period
that would otherwise extend beyond the Revolving Termination Date
shall end on the Revolving Termination Date and with regard to the
Term Loan, no Interest Period shall extend beyond any principal
amortization payment date unless the portion of the Term Loan
consisting of Prime Rate Loans together with the portion of the
Term Loan consisting of Eurodollar Loans with Interest Periods
expiring prior to or concurrently with the date such principal
amortization payment is due, is at least equal to the amount of
such principal amortization payment due on such date; and
(E) no more than 15 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,
even if they shall begin on the same date and have the same
duration, 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.
"Issuing Lender" means as to the Existing Letters of Credit, the
issuing lenders identified on Schedule 2.1(a), and as to Letters of
Credit issued after the Closing Date, Firstar.
"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.
"Letter of Credit" means any Existing Letter of Credit and any
letter of credit issued for the account of the Borrower by the Issuing
Lender as provided in Section 3.3, as such letter of credit may be
amended, supplemented, extended or otherwise modified from time to time.
"Letter of Credit Fees" is defined in Section 4.4(c).
"Leverage Ratio" means the ratio of Consolidated Indebtedness to
Consolidated Indebtedness plus the amount of shareholder's equity
determined in accordance with GAAP and
10
reported on the most recent balance sheet of the Borrower delivered
pursuant to Section 7.1.
"Lien" means any mortgage, pledge, hypothecation, assignment,
security interest, encumbrance, lien (statutory or otherwise), priority
or charge of any 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 and/or the Term Loan and/or a Swing
Line Loan, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to
issue Letters of Credit and with respect to each Lender, the commitment
of such Lender to purchase participation interests in the Letters of
Credit up to such Lender's LOC Committed Amount as specified in Schedule
3.1(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.
"LOC Commitment Percentage" means for each Lender, the percentage
identified as its LOC Commitment Percentage on Schedule 3.1(a), as such
percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 11.6(c).
"LOC Committed Amount" means, collectively, the aggregate amount
of all of the LOC Commitments of the Lenders to issue and participate in
Letters of Credit as referenced in Section 3.3(a) and, individually, the
amount of each Lender's LOC Commitment as specified in Schedule 3.1(a)
(subject to adjustment on account of assignment pursuant to the
provisions of Section 11.6(c) hereof).
"LOC Documents" means with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (i) the rights and obligations of the parties concerned or
(ii) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be
drawn under Letters of Credit then
11
outstanding, assuming compliance with all requirements for drawings
referred to in such Letters of Credit plus (ii) the aggregate amount of
all payments made, or drafts accepted for subsequent payments to be made,
under Letters of Credit honored by the Issuing Lender but not theretofore
reimbursed.
"Mandatory Borrowing" is defined in Section 3.3(e).
"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 to perform its 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.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Proceeds" means the gross cash proceeds including cash by way
of deferred payment pursuant to a promissory note, receivable or
otherwise, (but only as and when received) received from the sale, lease,
conveyance, disposition or other transfer of assets, or from a Recovery
Event or from the sale, issuance or placement of equity securities,
Indebtedness for borrowed money or Subordinated Debt to or from a Person
other than a Credit Party, net of (i) transaction costs payable to third
parties, (ii) the estimated taxes payable with respect to such proceeds
(including, without duplication, withholding taxes), (iii) Indebtedness
(other than Indebtedness of the Lenders pursuant to the Credit Documents)
which is secured by the assets which are the subject of such event to the
extent such Indebtedness is paid with a portion of the proceeds
therefrom, and (iv) any and all cash costs which may occur as a result of
discontinuing operations, shutdowns or otherwise resulting from, the
disposition of such assets.
"Non-Excluded Taxes" is defined in Section 4.9.
12
"Note" or "Notes" means the Revolving Notes and/or the Term Notes
and/or the Swing Line Note, collectively, separately or individually, as
appropriate.
"Notice of Borrowing" means the written notice of borrowing as
referenced and defined in Section 3.1(b)(i).
"Notice of Extension/Conversion" means the written notice of
extension or conversion as referenced and defined in Section 4.2.
"Obligations" means, without duplication, all of the obligations
of the Borrower to the Lenders, the Agent and the Issuing Lender
(including the obligations to pay principal of and interest on the Loans,
to pay LOC Obligations, to pay all Fees, to provide cash collateral in
respect of Letters of Credit, 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 is a party.
"Original Credit Agreement" is defined in the Recitals.
"Participant" and "Participants" are defined in Section 11.6.
"Participation Interest" means the purchase by a Lender of a
participation interest in Letters of Credit as provided in Section 3.3.
"PBGC" means the Pension Benefit Guaranty Corporation established
under ERISA, and any successor thereto.
"Permitted Guarantee Obligations" means (i) Guarantee Obligations
of the Borrower and its Subsidiaries relating to Indebtedness of the
Borrower or a Subsidiary otherwise permitted under Section 8.1, (ii)
Guarantee Obligations of the Borrower and its Subsidiaries relating to
obligations of their customers under third-party wholesale/retail finance
arrangements, consistent with past practices of the Borrower, and (iii)
Guarantee Obligations of the Borrower and its Subsidiaries relating to
performance bonds issued for their customers to facilitate sales of
products of the Borrower and its Subsidiaries, consistent with past
practices of the Borrower; provided, however, that in no event shall the
aggregate amount of all Permitted Guarantee Obligations exceed $500,000
at any one time outstanding.
"Permitted Investments" means (i) cash; (ii) accounts, chattel
paper, and notes receivable created by the Borrower in the ordinary
course of business; (iii) advances in the ordinary course of business to
suppliers, employees and officers of the Borrower consistent with past
practices in an
13
aggregate amount at any time outstanding of not more than $200,000 to any
one individual or $400,000 in the aggregate; (iv) investments in bank
certificates of deposit (but only with banks having a recognized
▇▇▇▇▇▇▇▇'▇ BankWatch rating of BC or better), open market commercial
paper maturing within one year having the highest rating of either
Standard & Poors Corporation or ▇▇▇▇▇'▇ Investors Services, Inc., U.S.
Treasury Bills subject to repurchase agreements and short-term
obligations issued or guaranteed by the U.S. Government or any agency
thereof, and non-rated commercial paper issued by or through a Lender;
(v) investments in open-end diversified investment companies of
recognized financial standing investing solely in short-term money market
instruments consisting of securities issued or guaranteed by the United
States government, its agencies or instrumentalities, or municipalities,
time deposits and certificates of deposit issued by domestic banks or
London branches of domestic banks, bankers acceptances, repurchase
agreements, high grade commercial paper and the like; (vi) Eurodollar
certificates of deposit in a financial institution of recognized standing
with a rating by ▇▇▇▇▇▇▇▇'▇ BankWatch of BC or better; (vii) stock or
other securities of a Subsidiary or other entity which is, or immediately
after such investment will be, a Subsidiary (subject to the terms of
Section 8.8 hereof); (viii) loans or advances to Subsidiaries
constituting general obligations of such Subsidiaries, provided such
obligations shall not be subordinated to any other obligations of such
Subsidiaries; and (ix) purchases of or investments in bonds or other
obligations issued by a municipality; and (x) investments that would not
otherwise cause the Borrower to violate Section 8.12 hereof. 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 created by or otherwise existing, under or in connection
with this Credit Agreement or the other Credit Documents 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, to the extent
permitted under Section 8.1(c);
(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 respect
14
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', materialmen'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,
securing Indebtedness permitted by Section 8.1(b), 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 incurred in connection with Indebtedness permitted by
Section 8.1(h), provided that no such Lien shall be spread to cover any
additional property after the Closing Date and the amount of Indebtedness
secured thereby shall not be increased;
15
(xi) 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
(xii) 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 the Borrower sells an item of equipment to a financial
institution 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 Borrower 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).
"Purchasing Lender" is defined in Section 11.6(c).
"Recovery Event" means the receipt by the Borrower or any of its
Subsidiaries of any cash insurance proceeds or condemnation award payable
by reason of theft, loss, physical
16
destruction or damage, taking or similar event with respect to any of
their respective property or assets.
"Refunded Swing Line Loans" is defined in Section 3.4(c).
"Register" is defined in Section 11.6(d).
"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
66-2/3% of the sum of (i) all Obligations then outstanding at such time
and (ii) the aggregate unused Commitments at such time (treating for
purposes hereof in the case of LOC Obligations and the Issuing Lender,
only the portion of the LOC Obligations of the Issuing Lender which is
not subject to the Participation Interests of the other Lenders and, in
the case of the Lenders other than the Issuing Lender, the Participation
Interests of such Lenders in LOC Obligations hereunder as direct
Obligations); 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 Obligations (including Participation Interests)
of such Defaulting Lender and such Defaulting Lender's Commitments, or
after termination of the Commitments, the principal balance of the
Obligations 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 3.1(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 Percentage" means for each Lender, the
percentage identified as its Revolving Commitment
17
Percentage on Schedule 3.1(a), as such percentage may be modified in
connection with any assignment made in accordance with the provisions of
Section 11.6(c).
"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
3.1(a) and, individually, the amount of each Lender's Revolving
Commitment as specified in Schedule 3.1(a) (subject to reduction pursuant
to the provisions of Section 4.3(a) and to adjustment on account of
assignment pursuant to the provisions of Section 11.6(c)).
"Revolving Loans" is defined in Section 3.1.
"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 3.1(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 28, 2002 or the earlier
termination in full of the Revolving Commitments pursuant to this
Agreement.
"Single Employer Plan" means any Plan which is not a
Multi-Employer Plan.
"Solvent" means, with respect to any Person as of a particular
date, that on such date (i) such Person 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 Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond its ability to pay as such debts and
liabilities mature in their ordinary course, (iii) such Person is not
engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person's property would
constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person is engaged
or is to engage, (vi) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (v) the present
fair saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person
on its debts as they become absolute and matured. In computing the amount
of contingent liabilities at any time, it is intended that such
18
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, (iii) the sale, transfer, lease or other disposition of
assets for cash, provided, however, that 100% of the net proceeds of
which shall be paid to the Agent as a prepayment of Revolving Loans or
Term Loans under Section 4.3(c), as the Borrower shall direct, and
provided further, that if any such prepayment shall be made with respect
to Revolving Loans, the Revolving Committed Amount shall be
automatically, immediately, and permanently reduced by an amount equal to
the prepayment applied to the Revolving Loans under Section 4.3(a), and
(iv) in addition to the transactions described in subsections (i), (ii)
and (iii), any other sale, transfer, lease or other disposition of assets
where the proceeds of such disposition do not exceed $2,500,000 during
any fiscal year or $5,000,000 during the term of this Credit Agreement.
"Subordinated Debt" is defined in Section 8.10.
"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.
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 Loan" and "Swing Line Loans" are defined in Section
3.4(a).
"Swing Line Note" means the promissory note of the Borrower in
favor of Firstar evidencing Swing Line Loans provided pursuant to Section
3.4(a), as such promissory note may be amended, modified, supplemented,
extended, renewed or replaced from time to time.
"Term Loan" is defined in Section 3.2(a).
19
"Term Loan Commitment" means with respect to each Lender, the
commitment of such Lender to make its portion of the Term Loan as
specified in Schedule 3.1(a) (and for purposes of making determinations
of Required Lenders hereunder after the Closing Date, the principal
amount outstanding on the Term Loan).
"Term Loan Commitment Percentage" means for each Lender, its Term
Loan Commitment Percentage on Schedule 3.1(a), as such percentage may be
modified in accordance with the provisions of Section 11.6(c).
"Term Loan Committed Amount" means collectively, the aggregate
amount of all of the Term Loan Commitments as referenced in Section
3.2(a) and, individually, the amount of each Lender's Term Loan
Commitment as specified in Schedule 3.1(a).
"Term Note" or "Term Notes" means the promissory notes of the
Borrower in favor of each of the Lenders evidencing the Term Loan
provided pursuant to Section 3.2(d), individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"Term Termination Date" means May 28, 2004 or the earlier
termination in full of the Term Loan Commitment.
"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.
"Year 2000 Compliant" is defined in Section 6.16.
2.2 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.
20
(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".
2.3 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 most recent audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries delivered to the Lenders.
SECTION 3
CREDIT FACILITIES
3.1 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 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 LOC
Commitment Percentage of LOC Obligations 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 LOC Obligations plus the aggregate
amount of Commercial Paper Obligations plus the aggregate amount of
outstanding Swing Line Loans shall not exceed SIXTY-TWO MILLION FIVE
HUNDRED THOUSAND DOLLARS ($62,500,000) (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. Eurodollar Loans shall be made by
each Lender at its Eurodollar Lending Office and Prime Rate Loans at its
Domestic Lending Office.
(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
21
confirmation may be by fax) to the Agent not later than 12:00 noon
(Milwaukee, Wisconsin time) on the Business Day of the requested
borrowing in the case of Prime Rate Loans, and on the third
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 3.1(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 1:00
P.M. (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
$100,000 and integral multiples of $100,000 in excess thereof; and
(B) if a Eurodollar Loan, in a minimum aggregate amount of
$1,000,000 and integral multiples of $100,000 in excess thereof
(or, in either case, the remaining amount of the Revolving
Commitment, if less).
(iii) Advances. Each Lender will make its Revolving
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 2:30 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 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
3:30 P.M. on such date.
22
(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 4.1, 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 Prime
Rate; and
(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 the Applicable Percentage as
of the commencement of the Interest Period applicable thereto.
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 3.1(e).
3.2 Term Loan.
(a) Term Loan. Subject to and upon the terms and conditions
hereof, each Lender severally agrees to make its Term Loan Commitment
Percentage of a term loan (the "Term Loan") to the Borrower on the
Closing Date in the aggregate principal amount of TWELVE MILLION FIVE
HUNDRED THOUSAND DOLLARS ($12,500,000) for the purposes hereinafter set
forth. The Term Loan may consist of Prime Rate Loans or Eurodollar Loans,
or a combination thereof, as the Borrower may request. Amounts repaid on
the Term Loan may not be reborrowed. Each Lender will make its Term Loan
Commitment Percentage of each Term Loan advance available to the Agent on
the Closing Date. Eurodollar Loans shall be made by each Lender at its
Eurodollar Lending Office and Prime Rate Loans at its Domestic Lending
Office. In the event the Borrower shall fail to borrow the entire Term
Loan Committed Amount, the scheduled amortization payments required under
Section 3.2(b) shall be reduced in inverse order of maturity by the
amount of the difference.
(b) Repayment of Term Loan. The principal amount of the Term Loan
shall be repaid in quarterly payments of $400,000 each, commencing on
August 31, 1999 and on the last day of each November, February, May and
August thereafter, with a
23
final principal payment of $4,900,000 (together with all accrued but
unpaid interest) on the Term Termination Date.
(c) Interest on the Term Loan. Subject to the provisions of
Section 4.1, the Term Loan shall bear interest as follows:
(i) Prime Rate Loans. During such periods as the Term Loan
shall be comprised of Prime Rate Loans, each such Prime Rate Loan
shall bear interest at a per annum rate equal to the Prime Rate;
and
(ii) Eurodollar Loans. During such periods as the Term Loan
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 the Applicable Percentage as of
the commencement of the Interest Period applicable thereto.
Interest on the Term Loan shall be payable in arrears on each Interest Payment
Date.
(d) Term Notes. The Term Loan 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 Term Loan Committed Amount in
substantially the form of Exhibit 3.2(d).
3.3 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and of
the LOC Documents, if any, and provided that no Default or Event of
Default shall have occurred and be continuing, and further subject to any
other terms and conditions which the Issuing Lender may reasonably
require, during the Revolving Commitment Period the Issuing Lender shall
issue, and the Lenders shall participate in, Letters of Credit for the
account of the Borrower from time to time upon request in a form
acceptable to the Issuing Lender; provided, however, that (i) the
aggregate amount of LOC Obligations shall not at any time exceed TWELVE
MILLION FIVE HUNDRED THOUSAND DOLLARS ($12,500,000) the ("LOC Committed
Amount") and (ii) the sum of the aggregate amount of Revolving Loans plus
the aggregate amount of LOC Obligations plus the aggregate amount of
Commercial Paper Obligations plus the aggregate amount of Swing Line
Loans shall not at any time exceed the Aggregate Revolving Committed
Amount. No Letter of Credit as originally issued or as extended shall
have an expiry date extending beyond the Revolving Termination Date,
except that prior to the Revolving Termination Date a Letter of Credit
may be issued or extended with an expiry date extending beyond the
Revolving Termination Date if, and to the extent that the Borrower shall
provide cash collateral to the
24
Issuing Lender on the date of issuance or extension in an amount equal to
the maximum amount available to be drawn under such Letter of Credit.
Each Letter of Credit shall comply with the related LOC Documents. The
issuance and expiry date of each Letter of Credit shall be a Business
Day. In the case of a conflict in the terms of the LOC Documents and this
Credit Agreement, the terms of this Credit Agreement shall control.
(b) Notice and Reports. The request for the issuance of a Letter
of Credit shall be submitted to the Issuing Lender on such prior notice
as the Issuing Lender and Borrower shall agree. The Issuing Lender will,
at least quarterly and more frequently if reasonably requested, provide
to the Lenders and the Borrower a detailed report specifying the Letters
of Credit which are then issued and outstanding and any activity with
respect thereto which may have occurred since the date of the prior
report, and including therein, among other things, the account party, the
beneficiary, the face amount, expiry date as well as any payments or
expirations which may have occurred.
(c) Participations. Each Lender, with respect to the Existing
Letters of Credit, hereby purchases a participation interest in such
Existing Letters of Credit and with respect to Letters of Credit issued
on or after the Closing Date, upon issuance of a Letter of Credit, shall
be deemed to have purchased without recourse a risk participation from
the Issuing Lender in such Letter of Credit and the obligations arising
thereunder and any collateral relating thereto, in each case in an amount
equal to its Revolving Commitment Percentage of the obligations under
such Letter of Credit and shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be
obligated to pay to the Issuing Lender therefor and discharge when due,
its Revolving Commitment Percentage of the obligations arising under such
Letter of Credit. Without limiting the scope and nature of each Lender's
participation in any Letter of Credit, to the extent that the Issuing
Lender has not been reimbursed as required hereunder or under any LOC
Document, each such Lender shall pay to the Issuing Lender its Revolving
Commitment Percentage of such unreimbursed drawing in same day funds on
the day of notification by the Issuing Lender of an unreimbursed drawing
pursuant to the provisions of subsection (d) hereof. The obligation of
each Lender to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default,
an Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the obligation of the
Borrower to reimburse the Issuing Lender under any Letter of Credit,
together with interest as hereinafter provided.
25
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower. The
Borrower shall reimburse the Issuing Lender on the first Business Day
following notice of payment under any Letter of Credit (either with the
proceeds of a Revolving Loan obtained hereunder or otherwise) in same day
funds as provided herein or in the LOC Documents, together with one day's
interest on the amount of such payment at the Prime Rate. Unless the
Borrower shall notify the Issuing Lender on the date Borrower receives
notice of a payment of its intent to otherwise reimburse the Issuing
Lender, the Borrower shall be deemed to have requested a Revolving Loan
in the amount of the payment as provided in subsection (e) hereof, the
proceeds of which will be used to satisfy the reimbursement obligations.
The Borrower's reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of
set-off, counterclaim or defense to payment the Borrower may claim or
have against the Issuing Lender, the Agent, the Lenders, the beneficiary
of the Letter of Credit drawn upon or any other Person, including,
without limitation, any defense based on any failure of the Borrower to
receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. The Issuing Lender will
promptly notify the other Lenders of the amount of any unreimbursed
payment and each Lender shall promptly pay to the Issuing Lender in
Dollars and in immediately available funds, the amount of such Lender's
Revolving Commitment Percentage of such unreimbursed drawing. Such
payment shall be made on the day such notice is received by such Lender
from the Issuing Lender if such notice is received at or before 12:00
noon (Milwaukee, Wisconsin time), otherwise such payment shall be made at
or before 10:00 A.M.(Milwaukee, Wisconsin time) on the Business Day next
succeeding the day such notice is received. If such Lender does not pay
such amount to the Issuing Lender in full upon such request, such Lender
shall, on demand, pay to the Issuing Lender interest on the unpaid amount
during the period from the date of such payment until such Lender pays
such amount to the Issuing Lender in full at a rate per annum equal to,
if paid within two (2) Business Days of the date of such request, the
Federal Funds Rate and thereafter at a rate equal to the Prime Rate. Each
Lender's obligation to make such payment to the Issuing Lender, and the
right of the Issuing Lender to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and
without regard to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event of Default or
the acceleration of the Obligations hereunder and shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Repayment with Revolving Loans. On any day on which the
Borrower shall be deemed to have requested a Revolving
26
Loan to reimburse a drawing under a Letter of Credit, the Agent shall
give notice to the Lenders that a Revolving Loan has been requested or
deemed requested in connection with a drawing under a Letter of Credit,
in which case a Revolving Loan borrowing comprised entirely of Prime Rate
Loans (each such borrowing, a "Mandatory Borrowing") shall be immediately
made (without giving effect to any termination of the Commitments
pursuant to Section 9) pro rata based on each Lender's respective
Revolving Commitment Percentage (determined before giving effect to any
termination of the Commitments pursuant to Section 9) and in the case of
both clauses (i) and (ii) the proceeds thereof shall be paid directly to
the Issuing Lender for application to its LOC Obligations. Each Lender
hereby irrevocably agrees to make such Revolving Loans immediately upon
any such request or deemed request on account of each Mandatory Borrowing
in the amount and in the manner specified in the preceding sentence and
on the same such date notwithstanding (i) the amount of Mandatory
Borrowing may not comply with the minimum amount for borrowings of
Revolving Loans otherwise required hereunder, (ii) whether any conditions
specified in Section 5.2 are then satisfied, (iii) whether a Default or
an Event of Default then exists, (iv) failure for any such request or
deemed request for Revolving Loan to be made by the time otherwise
required in Section 3.1(b), (v) the date of such Mandatory Borrowing, or
(vi) any reduction in the Revolving Committed Amount after any such
Letter of Credit may have been drawn upon. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to
the Borrower), then each such Lender hereby agrees that it shall
forthwith fund (as of the date the Mandatory Borrowing would otherwise
have occurred, but adjusted for any payments received from the Borrower
on or after such date and prior to such purchase) its Participation
Interests in the outstanding LOC Obligations; provided, further, that in
the event any Lender shall fail to fund its Participation Interest on the
day the Mandatory Borrowing would otherwise have occurred, then the
amount of such Lender's unfunded Participation Interest therein shall
bear interest payable to the Issuing Lender upon demand, at the rate
equal to, if paid within two (2) Business Days of any such request, the
Federal Funds Rate, and thereafter at a rate equal to the Prime Rate.
(f) Modification, Extension. The issuance of any supplement,
modification, amendment, renewal, or extension to any Letter of Credit
shall, solely for purposes of this Agreement, be treated in all respects
the same as the issuance of a new Letter of Credit, but without
duplication in computing the aggregate outstanding amount of LOC
Obligations.
27
(g) Uniform Customs and Practices. The Issuing Lender shall have
the Letters of Credit be subject to The Uniform Customs and Practice for
Documentary Credits, as published as of the date of issue by the
International Chamber of Commerce (the "UCP"), in which case the UCP may
be incorporated therein and deemed in all respects to be a part thereof,
with such exceptions thereto as the beneficiary may request and the
Issuing Lender may approve.
3.4 Swing Line Loans.
(a) Swing Line Loans. Subject to the terms and conditions hereof
and provided that no Event of Default shall have occurred and be
continuing, at its sole discretion Firstar may make swing line loans to
the Borrower (individually, a "Swing Line Loan"; collectively the "Swing
Line Loans") from time to time during the Revolving Commitment Period in
an aggregate principal amount at any one time outstanding not to exceed
FIVE MILLION DOLLARS ($5,000,000), provided, however, that (i) with
regard to Firstar individually, the sum of Firstar's share of outstanding
Revolving Loans plus Firstar's LOC Commitment Percentage of LOC
Obligations shall not exceed Firstar's Revolving Committed Amount, and
(ii) with regard to the Lenders collectively, the sum of the aggregate
amount of outstanding Swing Line Loans plus Revolving Loans plus the
aggregate amount of Commercial Paper Obligations plus the aggregate
amount of LOC Obligations shall not exceed the Aggregate Revolving
Committed Amount (as such aggregate maximum amount may be reduced from
time to time as provided herein). Amounts borrowed under this Section 3.4
may be repaid and, through but excluding the Revolving Termination Date,
reborrowed. All Swing Line Loans shall be made as Prime Rate Loans and
shall not be entitled to be converted into Eurodollar Loans. The Borrower
shall give Firstar irrevocable notice (which notice must be received by
Firstar prior to 2:00 P.M. (Milwaukee, Wisconsin time) on the date of the
requested borrowing specifying the amount of the requested Swing Line
Loan. The proceeds of any approved Swing Line Loan will be made available
by Firstar to the Borrower at the office of Firstar by crediting the
account of the Borrower at such office with such proceeds.
(b) Swing Line Note. The Swing Line Loans made to the Borrower
shall be evidenced by a duly executed promissory note substantially in
the form of Exhibit 3.4(b), payable to the order of Firstar and
representing the obligation of the Borrower to pay the unpaid principal
amount of the Swing Line Loans made to the Borrower, with interest
thereon at a per annum rate equal to the Prime Rate less 150 basis
points. Firstar is hereby authorized to record the Borrowing Date, the
amount of each Swing Line Loan made to the Borrower and the date and
amount of each payment or prepayment of principal thereof, on the
appropriate schedule annexed to and
28
constituting a part of the Swing Line Note (or any continuation thereof)
and any such recordation shall constitute prima facie evidence of the
accuracy of the information so recorded. The Swing Line Note shall (a) be
dated the Closing Date, (b) be stated to mature on the Revolving
Termination Date and (c) bear interest for the period from the date
thereof to the Revolving Termination Date on the unpaid principal amount
thereof from time to time outstanding at a per annum rate equal to the
Prime Rate less 150 basis points payable in arrears on each Interest
Payment Date.
(c) Repayment with Revolving Loans. Firstar may, at any time in
its sole and absolute discretion after a Default or an Event of Default
shall have occurred and be continuing, on behalf of the Borrower (which
hereby irrevocably directs Firstar to act on its behalf) request prior to
10:30 A.M. (Milwaukee, Wisconsin time) each Lender, including Firstar, to
make a Revolving Loan to the Borrower in an amount equal to such Lender's
Revolving Commitment Percentage of the amount of the Swing Line Loans
made to the Borrower outstanding on the date such notice is given (the
"Refunded Swing Line Loans"). Unless any of the events described in
Section 9 shall have occurred (in which event the procedures of Section
3.4(d) shall apply) each Lender shall make the proceeds of its Revolving
Loan to the Borrower available to Firstar for the account of Firstar at
the office of Firstar specified in Schedule 11.2, or at such other office
of Firstar as Firstar may designate in writing, by 1:00 P.M.(Milwaukee,
Wisconsin time) on the date such notice is given in funds immediately
available to Firstar. The proceeds of such Revolving Loans shall be
immediately applied to repay the Refunded Swing Line Loans of the
Borrower. Each Revolving Loan made pursuant to this subsection 3.4(c)
shall be a Prime Rate Loan.
(d) Participations. If prior to the making of a Revolving Loan to
the Borrower pursuant to Section 3.4(c) one of the events described in
Section 9 shall have occurred, each Lender will, on the date such
Revolving Loan was to have been made, purchase an undivided participating
interest in the Refunded Swing Line Loans in an amount equal to its
Revolving Commitment Percentage of such Refunded Swing Line Loans. Each
Lender will immediately transfer to Firstar, in immediately available
funds, the amount of its participation and upon receipt thereof Firstar
will deliver to such Lender a Swing Line Loan participation certificate
dated the date of receipt of such funds and in such amount.
(e) Payments to Participants. Whenever, at any time after Firstar
has received from any Lender such Lender's participating interest in a
Refunded Swing Line Loan, Firstar receives any payment on account
thereof, Firstar will distribute to such Lender its participating
interest in such
29
amount (appropriately adjusted in the case of interest payments, to
reflect the period of time during which such Lender's participating
interest was outstanding and funded); provided, however, that in the
event that such payment received by Firstar is required to be returned,
such Lender will return to Firstar any portion thereof previously
distributed by Firstar to it.
(f) Unconditional Participation Obligation. Each Lender's
obligation to purchase participating interests pursuant to Section 3.4(d)
shall not be affected by any circumstance (except for any circumstance
resulting solely from the gross negligence or willful misconduct of
Firstar), including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender or the Borrower may
have against Firstar, any Borrower or any other Person for any reason
whatsoever; (ii) any adverse change in the condition (financial or
otherwise) of the Borrower or any Subsidiary of the Borrower; (iii) any
breach of this Agreement by the Borrower or any other Lender; or (iv) any
other circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing.
3.5 Commercial Paper Transactions. During the Revolving Commitment
Period, subject to the terms and conditions hereof, and provided that no Event
of Default shall have occurred and be continuing, Firstar, for its own account,
may from time to time, in its sole discretion, accept requests from the Borrower
to issue the Borrower's commercial paper through Firstar; provided, however,
that the aggregate face amount of all commercial paper so issued shall not at
any one time exceed the limit of Commercial Paper Obligations and no commercial
paper so issued shall be outstanding on or after the Revolving Termination Date.
SECTION 4
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
4.1 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%.
4.2 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 Section 4.7, Eurodollar Loans may be converted into
30
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 2.1 and shall be in such minimum amounts as
provided in Section 3.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 4.2 (or telephone notice promptly
confirmed in writing) to the Agent prior to 12:00 noon (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 third 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 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.
4.3 Reductions in Commitments and Prepayments.
(a) Voluntary Reduction in Revolving Commitment. The Borrower may from
time to time permanently reduce the aggregate amount of the Revolving
Commitments in whole or in part without premium or penalty except as provided in
Section 4.10 upon three Business Days' prior written notice to the Agent;
provided that after giving effect to any such voluntary reduction the sum of
Revolving Loans plus LOC Obligations plus Commercial Paper Obligations plus
Swing Line Loans then outstanding shall not exceed the Aggregate Revolving
Committed Amount, as reduced from time to time. Except as otherwise specified
herein, partial reductions in the aggregate Revolving Commitment shall in each
case be in a minimum aggregate amount of $1,000,000 and integral multiples of
$500,000 in excess thereof.
(b) Mandatory Prepayment on Revolving Loans. If at any time the sum of
the aggregate amount of Revolving Loans plus LOC Obligations plus Commercial
Paper Obligations plus Swing Line Loans
31
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, then Revolving Loans and then, if necessary, to a cash
collateral account in respect of the LOC Obligations, 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 4.10. Any partial
prepayment shall be in a minimum aggregate principal amount of $1,000,000 and
integral multiples of $500,000 in excess thereof or such smaller amount as may
be necessary to prepay a Loan in full. Except as otherwise specified herein,
amounts prepaid on the Revolving Loans may be reborrowed in accordance with the
provisions hereof. Amounts prepaid on the Term Loan shall be applied first, to
the next two (2) scheduled payments of the principal of the Term Loan and the
balance, if any, shall be applied in inverse order of maturity to the payments
of principal due pursuant to Section 3.2(b). Amounts prepaid on the Term Loan
may not be reborrowed.
(d) Notice. Except as otherwise provided herein, the Borrower will
provide notice to the Agent of any prepayment of the Term Loan by 10:30 A.M.
(Milwaukee, Wisconsin time) on the day prior to the date of prepayment.
4.4 Fees.
(a) Facility Fee. In consideration of the Revolving Commitments by the
Lenders hereunder, the Borrower agrees to pay to the Agent for the ratable
benefit of the Lenders a facility fee (the "Facility Fee") in an amount equal to
1/10 of 1% per annum of the Revolving Commitment. The Facility Fee shall be
payable quarterly in arrears on the 15th day following the last day of each
calendar quarter for such calendar quarter and on the Revolving Credit
Termination Date.
(b) Closing Fee. In consideration of the Term Loan Commitments by the
Lenders hereunder, the Borrower agrees to pay to the Agent for the ratable
benefit of the Lenders a closing fee (the "Closing Fee") in an amount equal to
$15,625. The Closing Fee shall be payable and fully earned on the Closing Date.
(c) Letter of Credit Fee. In consideration of the issuance of Letters of
Credit hereunder, the Borrower agrees to pay to the Issuing Lender standard and
customary fees, costs and expenses incurred or charged by the Issuing Lender in
issuing, effecting payment under, amending or otherwise administering any Letter
of Credit (the "Letter of Credit Fee").
32
(d) Administrative Fees. The Borrower agrees to pay to the Agent, for its
own account, the annual administrative fee, structuring fee and other fees
(collectively, the "Agent's Fees") referred to in that certain Agent's fee
letter dated May 24, 1999.
4.5 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
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. 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.
4.6 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, at the end
33
of their respective Interest Periods 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.
4.7 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 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 4.10.
4.8 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):
(i) shall subject such Lender to any tax of any kind whatsoever on
or in respect of any Letter of Credit, letter of credit application or
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 4.9
(including Non- Excluded Taxes imposed solely by reason of any failure of
such Lender to comply with its obligations under Section 4.9(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
its applicable lending office, branch, or any affiliate thereof); or
(ii) 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
34
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 4.10. 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 4.8 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 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.
4.9 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 its applicable lending
office, 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 its applicable lending office, 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, applicable lending office,
branch or affiliate is organized or is located, or in which its principal
executive office is located, or
35
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, applicable lending office,
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 1001 or
4224, 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 1001 or
4224 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 for Form 1001 and
one calendar year for Form 4224) 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
36
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.
4.10 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.
4.11 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 the Letter of Credit Fees and the Agent's Fees), 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
37
respective Commitment Percentages relating to such respective Loans and
Participation Interests.
(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 Revolving 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 3.1 of this Credit Agreement.
4.12 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
38
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, 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 4.12 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 4.12 to share in the benefits of
any recovery on such secured claim.
4.13 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 12:00 noon (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. 112560280 maintained by the Borrower with the Agent. 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 4.11). The Agent will distribute such
payments to such Lenders, if any such payment is received prior to
39
2:00 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 (subject to accrual of interest and Fees for the period of such
extension), 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. Except as
expressly provided otherwise herein, all computations of interest and fees shall
be made on the basis of actual number of days elapsed over a year of 360 days.
Interest shall accrue from and include the date of borrowing, but exclude the
date of payment.
4.14 Indemnification: Nature of Issuing Lender's Duties.
(a) In addition to its other obligations under Section 3.3, the
Borrower hereby agrees to protect, indemnify, pay and save the Issuing
Lender harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees) that the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (A) the issuance of
any Letter of Credit or (B) the failure of the Issuing Lender to honor a
drawing under a Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de
facto government or Governmental Authority (all such acts or omissions,
herein called "Government Acts").
(b) As between the Borrower and the Issuing Lender, the Borrower
shall assume all risks of the acts, omissions or misuse of any Letter of
Credit by the beneficiary thereof. The Issuing Lender shall not be
responsible: (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (iii) for failure of the
beneficiary of a Letter of Credit to comply fully with conditions
required in order to draw upon a Letter of Credit; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not
they be in cipher; (v) for errors in interpretation of technical terms;
(vi) for any loss or delay in the transmission or otherwise of
40
any document required in order to make a drawing under a Letter of Credit
or of the proceeds thereof; and (vii) for any consequences arising from
causes beyond the control of the Issuing Lender, including, without
limitation, any Government Acts. None of the above shall affect, impair,
or prevent the vesting of the Issuing Lender's rights or powers
hereunder.
(c) In furtherance and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the
Issuing Lender, under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith, shall not put
such Issuing Lender under any resulting liability to the Borrower. It is
the intention of the parties that this Credit Agreement shall be
construed and applied to protect and indemnify the Issuing Lender against
any and all risks involved in the issuance of the Letters of Credit, all
of which risks are hereby assumed by the Borrower, including, without
limitation, any and all risks of the acts or omissions, whether rightful
or wrongful, of any present or future Government Acts. The Issuing Lender
shall not, in any way, be liable for any failure by the Issuing Lender or
anyone else to pay any drawing under any Letter of Credit as a result of
any Government Acts or any other cause beyond the control of the Issuing
Lender.
(d) Nothing in this Section 4.14 is intended to limit the
reimbursement obligation of the Borrower contained in Section 3.3(d)
hereof. The obligations of the Borrower under this Section 4.14 shall
survive the termination of this Agreement. No act or omissions of any
current or prior beneficiary of a Letter of Credit shall in any way
affect or impair the rights of the Issuing Lender to enforce any right,
power or benefit under this Credit Agreement.
(e) Notwithstanding anything to the contrary contained in this
Section 4.14, the Borrower shall have no obligation to indemnify any
Issuing Lender in respect of any liability incurred by such Issuing
Lender arising out of the gross negligence or willful misconduct of the
Issuing Lender (including action not taken by an Issuing Lender) or to
reimburse the Issuing Lender for payments made by such Issuing Lender on
a Letter of Credit with respect to which the drafts and accompanying
documents do not reasonably appear to comply with the terms of the Letter
of Credit, as determined by a court of competent jurisdiction.
41
SECTION 5
CONDITIONS
5.1 Conditions to Closing Date. This Credit Agreement shall become
effective upon the 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, (ii) for the account
of each Lender a Revolving Note and a Term Note, in each case conforming
to the requirements of this Credit Agreement and executed by a duly
authorized officer of the Borrower, and (iii) for the account of Firstar,
the Swing Line Note.
(b) Liability and Casualty Insurance. Copies of insurance policies
or certificates of insurance evidencing liability and casualty insurance
meeting the requirements set forth herein.
(c) Financial Information. Copies of audited consolidated
financial statements for the Borrower and its Subsidiaries for fiscal
years 1997 and 1998; and interim quarterly company-prepared consolidated
financial statements for the Borrower and its Subsidiaries.
(d) Corporate Documents. Receipt by the Agent of the following:
(i) Articles of Incorporation. Copies of the
articles of incorporation of the Borrower certified to be
true and complete as of a recent date by the appropriate
governmental authority of the state of its incorporation.
(ii) Resolutions. Copies of resolutions of the Board
of Directors of the Borrower approving and adopting the
Credit Documents, the transactions contemplated therein and
authorizing execution and delivery thereof, certified by a
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
certified by a 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 certified as of a recent date by the appropriate
Governmental Authorities of the state of incorporation
42
and each other state in which the failure to so qualify and
be in good standing would have a Material Adverse Effect.
(e) Officer's Certificate. The Agent shall have received, with a
counterpart for each Lender, a certificate of a duly authorized officer
of the Borrower dated the Closing Date, substantially in the form of
Exhibit 5.1(e) with appropriate insertions and attachments.
(f) Legal Opinion of Counsel. The Agent shall have received, with
a copy for each Lender, an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Borrower, dated the Closing Date and addressed to the Agent and the
Lenders, in form and substance satisfactory to the Agent and the Lenders.
(g) Fees. The Agent shall have received all Fees owing pursuant to
Section 4.4.
(h) 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.
(i) Additional Matters. All other 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 Extensions of Credit. The obligation of each Lender
to make any Extension of Credit 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 Extension of Credit:
(a) Representations and Warranties. The representations and
warranties made by the Borrower herein, or which are contained in any
certificate furnished at any time under or in connection herewith shall
be true and correct on and as of the date of such Extension of Credit 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 Extension of Credit 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 Revolving Loans. If such Loan is made
pursuant to subsection 3.1, all conditions set forth in such subsection
shall have been satisfied.
43
(d) Additional Conditions to Term Loan. If such Loan is made
pursuant to subsection 3.2 all conditions set forth in such subsection
shall have been satisfied.
(e) Additional Conditions to Letters of Credit. If such Extension
of Credit is made pursuant to subsection 3.3 all conditions set forth in
such subsection shall have been satisfied.
(f) Additional Conditions to Swing Line Loans. If such Extension
of Credit is made pursuant to subsection 3.4, all conditions set forth in
such subsection shall have been satisfied.
Each request for Extension of Credit and each acceptance by the Borrower
of an Extension of Credit shall be deemed to constitute a representation and
warranty by the Borrower as of the date of such Extension of Credit that the
applicable conditions in paragraphs (a) and (b), and in (c), (d), (e) or (f) 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
Extensions of Credit herein provided for, the Borrower hereby represents and
warrants to the Agent and to each Lender that:
6.1 Financial Statements. The Borrower has furnished to the Lenders (a)
the audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries as of December 31, 1998, together with an unqualified
opinion thereon by McGladry & ▇▇▇▇▇▇ and (b) the unaudited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries as of
April 3, 1999, 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 April 3, 1999 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 to all property, real and
personal, reflected on the most recent financial statement of the Borrower
furnished to the Lenders, and all property purported to have been acquired since
the date of such
44
financial statement, except property sold or otherwise disposed of in the
ordinary course of business subsequent to such date; and all such property is
free of any Lien except Permitted Liens. 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 and conform to all applicable laws,
ordinances and regulations the violation of which would have a Material Adverse
Effect. 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 a corporation duly organized, 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 organization, (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 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 except to the extent that the failure to so
qualify or be in good standing would not, in the aggregate, have a Material
Adverse Effect and (d) is in compliance with all Requirements of Law except to
the extent that the failure to comply therewith would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.4 Corporate Power; Authorization; Enforceable Obligations. The Borrower
has full corporate 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
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 with the validity or enforceability of any Credit Document
against the Borrower. Each Credit Document to which it is a party has been duly
executed and delivered on behalf of the Borrower. Each Credit Document to which
it is a party constitutes a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower, 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
Extensions of Credit will not violate any Requirement of Law or any Contractual
Obligation of the
45
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
imposition of any Lien 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 Schedule 6.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the best knowledge of the Borrower,
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 have a Material
Adverse Effect.
6.7 Investment Company Act. The Borrower is not an "investment company"
or a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
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 (a) margin stock which is a Permitted Investment, and
(b) capital stock of the Borrower held by the Borrower as treasury stock, 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,
46
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.
6.10 Environmental Matters. Except as set forth on Schedule 6.10 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) 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) 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 does the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened.
(d) 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 knowledge of the Borrower, 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
47
or judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business.
(f) 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.
6.11 Use of Proceeds. Extensions of Credit hereunder may be used to
provide for working capital and other general corporate purposes not prohibited
by this Credit Agreement.
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 (except as provided in Section 180.0622(2)(b) of the Wisconsin
Statutes) and is owned, free and clear of all Liens.
6.13 Taxes. Each of the Borrower and its Subsidiaries has filed, or
caused to be filed, all 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's
federal income tax liability has been finally determined by the Internal Revenue
Service for all taxable years up to and including the taxable year ended
December 31, 1993, and there is no threatened tax controversy or, to the best of
Borrower's knowledge, threatened tax controversy or dispute as of the date
hereof which would have a Material Adverse Effect except as disclosed in
Schedule 6.13.
6.14 Solvency. The Borrower, individually, and the Borrower and its
Subsidiaries, collectively, are and, after execution of this Credit Agreement
and after giving effect to the Indebtedness incurred hereunder, 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 Year 2000. The Borrower has conducted a review of its computer
systems and equipment containing embedded microchips to determine whether they
are Year 2000 Compliant (as defined below). The Borrower is in the process of
completing all system upgrades or reprogramming necessary to make its computer
systems and equipment
48
containing embedded microchips Year 2000 Compliant by no later than November 30,
1999, and is in the process of communicating with vendors, suppliers and
customers to identify any potential year 2000 issues which may adversely affect
the Borrower or any Subsidiary. The aggregate cost to the Borrower and its
Subsidiaries of such reprogramming, system upgrades (including hardware and
software) and testing, and the reasonably foreseeable consequences of year 2000
to the Borrower and its Subsidiaries (including, without limitation,
reprogramming errors and failure of others' systems or equipment), will not
result in a Material Adverse Effect. Except for such of the reprogramming and
upgrades referred to in the preceding sentence as may be necessary, the computer
systems and equipment of the Borrower and its Subsidiaries are, and with
ordinary course upgrades and routine maintenance will continue through the Term
Termination Date to be, sufficient to permit the Borrower and its Subsidiaries
to conduct their businesses without Material Adverse Effect. For purposes of the
foregoing, "Year 2000 Compliant" shall mean the ability of a system to provide
all of the following functions:
(a) handle date information before, during, and after January 1, 2000,
including but not limited to accepting date input, providing date output, and
performing calculations on dates or portions of dates;
(b) function accurately and without interruption before, during, and
after January 1, 2000, without any change in operations associated with the
advent of the new century;
(c) respond to two-digit, year-date input in a way that resolves the
ambiguity as to century in a disclosed, defined, and predetermined manner; and
(d) store and provide output of date information in ways that are
unambiguous as to century.
SECTION 7
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that on the Closing Date, and
thereafter for so long as this Credit Agreement is in effect and until the
Commitments have terminated, no Note or Letter of Credit remains outstanding and
unpaid and the Obligations, 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 7.2, 7.3, 7.4, 7.5, 7.6 and 7.7 shall
cause each of its Subsidiaries, to:
7.1 Financial Statements. Maintain a standard and modern system of
accounting in accordance with sound accounting practice, and furnish to the
Lenders such information respecting the business, assets and financial condition
of the Borrower and its
49
Subsidiaries as any Lender may reasonably request and, without request furnish
to the Lenders, or, in the case of Subsidiaries, cause its Subsidiaries to
furnish to the Lenders:
(a) as soon as available, and in any event within 45 days after
the end of each of the first three quarters of Borrower's fiscal year,
the Borrower's Form 10-Q (prepared on a consolidated basis) as of the end
of each such quarter and a comparison of actual cash flow, income and
capital expenditures with corresponding amounts from the prior year for
such period, all in reasonable detail and certified as true, correct and
complete, subject to review and normal year-end adjustments, by the chief
financial officer of the Borrower;
(b) as soon as available, and in any event within 100 days after
the close of each fiscal year, a copy of the Borrower's Form 10-K
(prepared on a consolidated and consolidating basis, provided that if the
Form 10-K is not prepared on a consolidating basis, the Borrower shall
furnish to each Lender, together with the Form 10-K, all financial
information contained in the Form 10-K on a consolidating basis), which
Form 10-K shall be accompanied by (i) the unqualified opinion of
independent certified public accountants of recognized standing selected
by the Borrower and acceptable to the Agent to the effect that the
statements present fairly, in all material respects, the financial
position of the Borrower as of the end of such year and the results of
its operations and its cash flows for the year then ended in conformity
with GAAP; (ii) a letter of such accountants stating that their review of
the financial covenants disclosed no Default or that their review
disclosed a Default and specifying the same and the action taken or
proposed to be taken with respect thereto; and (iii) any supplementary
comments and reports submitted by such accountants to the Borrower
including the management letter, if any;
(c) as soon as available, and in any event within 45 days after
the close of each fiscal year, a budget of income and expenses prepared
by the Borrower for the current fiscal year, based on information and
assumptions that are accurate and reasonable as of the date hereof; and
(d) together with the financial statements described in Section
7.1(a) and (b), the certificate of the president or chief financial
officer of the Borrower and to the effect that (i) a review of the
activities of the Borrower during such period has been made under his
supervision to determine whether the Borrower has observed, performed and
fulfilled the covenants set forth in Section 8.12, and (ii) no Default
has occurred, with respect to said covenants (or if such Default has
occurred, specifying the nature thereof and the period of
50
existence thereof and the steps, if any, being undertaken to correct the
same).
All financial statements referred to herein shall be complete and correct in all
respects and shall be prepared in reasonable detail and on a consolidated and
consolidating basis in accordance with GAAP, applied consistently throughout all
accounting periods.
7.2 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.
7.3 Conduct of Business and Maintenance of Existence. Except as otherwise
permitted by Section 8.4, 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.
7.4 Maintenance of Property; Insurance. Keep all material property useful
and necessary in its business in good working order and condition (ordinary wear
and tear excepted); maintain with financially sound and reputable insurance
companies insurance on all its material property 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, upon written request, full information as to the insurance carried.
7.5 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 at any time and as
often as may be desired, and to discuss the business, operations, properties and
financial and other
51
condition of the Borrower and its Subsidiaries with officers and employees of
the Borrower and its Subsidiaries and with its independent certified public
accountants.
7.6 Notices. Give notice to the Agent (which shall promptly transmit such
notice to each Lender) of:
(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 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 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.
7.7 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
52
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
(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.
SECTION 8
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that on the Closing Date, and
thereafter for so long as this Credit Agreement is in effect and until the
Commitments have terminated, no Note or Letter of Credit remains outstanding and
unpaid and the Obligations, together with interest, Fees and all other amounts
owing to the Agent or any Lender hereunder, are paid in full:
8.1 Indebtedness. The Borrower will not, nor will it permit any
Subsidiary to, contract, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness arising or existing under this Agreement and the
other Credit Documents;
53
(b) Indebtedness existing as of the Closing Date and set out in
Schedule 8.1(b) and renewals, refinancings or extensions thereof in a
principal amount not in excess of that outstanding as of the date of such
renewal, refinancing or extension;
(c) Indebtedness incurred after the Closing Date consisting of
Capital Leases or Indebtedness incurred to provide all or a portion of
the purchase price or cost of construction of an asset provided that (i)
such Indebtedness when incurred shall not exceed the purchase price or
cost of construction of such asset; (ii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing; and (iii) the total
aggregate principal amount of all such Indebtedness of the Borrower and
its Subsidiaries, as a group, shall not exceed $5,000,000 at any time
outstanding;
(d) Indebtedness and obligations relating to currency protection
agreements and commodity purchase or option agreements entered into with
a Lender in order to manage existing or anticipated interest rate,
exchange rate or commodity price risks and not for speculative purposes;
(e) Subordinated Debt of the Borrower, the terms of subordination
and other terms and provisions of which are acceptable to the Required
Lenders in their reasonable discretion;
(f) Indebtedness incurred by the Borrower in connection with
Permitted Sale-Leaseback Transactions, provided that the aggregate amount
of such Indebtedness shall not exceed $5,000,000 at any time outstanding;
and
(g) Indebtedness secured by Permitted Liens, except as otherwise
limited by this Section.
8.2 Liens. The Borrower will not, nor will it permit any Subsidiary to,
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, the
Borrower will not, nor will it permit any Subsidiary to, alter the character of
its business in any material respect from that conducted as of the Closing Date.
8.4 Consolidation, Merger or Sale of Assets, etc. The Borrower will not,
nor will it permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, sell, transfer,
lease or otherwise dispose of any substantial part
54
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, transfer, lease or other disposition of
property or assets not in the ordinary course of business (other
than Specified Sales), where and to the extent that such
transaction is the result of a Recovery Event and the Net Proceeds
therefrom are used to repair or replace damaged property or to
purchase or otherwise acquire new assets or property provided that
such purchase or acquisition is committed to within 120 days of
receipt of the Net Proceeds from the Recovery Event and such
purchase or acquisition is consummated within 180 days of such
receipt; and
(iii) the sale, lease or transfer of property or assets by
a Subsidiary to the Borrower.
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 10% of
Consolidated Tangible Assets, in each case determined as of the end of the
immediately preceding fiscal year; or
(b) enter into any transaction of merger or consolidation, except
for (i) the merger or consolidation of the Borrower with or into one of
its Subsidiaries, provided that in any such case the Borrower shall be
the surviving entity, and (ii) the merger or consolidation of any
wholly-owned Subsidiary with or into any other wholly-owned Subsidiary or
other entity which thereupon becomes a wholly-owned Subsidiary (subject
to the terms of Section 8.8 hereof).
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. The Borrower will not, nor will it permit any
Subsidiary to, 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, the Borrower will not, nor will it
permit any Subsidiary to, enter into
55
any transaction or series of transactions, whether or not in the ordinary course
of business, with any officer, director, shareholder or Affiliate 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.
8.8 Ownership of Subsidiaries. The Borrower will not, nor will it permit
any Subsidiary to, create, form or acquire a Subsidiary without the prior
written consent of the Required Lenders.
8.9 Fiscal Year. The Borrower will not, nor will it permit any Subsidiary
to, change its fiscal year, except with the prior written consent of the
Required Lenders.
8.10 Prepayments of Indebtedness, etc. The Borrower will not, nor will it
permit any Subsidiary to,
(a) after the issuance thereof, amend or modify, or permit the
amendment or modification of, any of the terms of subordination or other
terms or provisions relating to any Subordinated Debt; or
(b) make (or give notice with respect thereto) any voluntary or
optional payment or prepayment or redemption or acquisition for value
including, without limitation, by way of depositing money or securities
with the trustee with respect thereto before due for the purpose of
paying when due) or refund, refinance or exchange of any Subordinated
Debt permitted pursuant to Section 8.1.
As used herein, "Subordinated Debt" means any indebtedness for borrowed money
which by its terms is, or upon the happening of certain events may become,
subordinated in right of payment to the Obligations hereunder and other amounts
owing hereunder or in connection herewith.
8.11 Dividends. The Borrower will not, nor will it permit any
non-wholly-owned Subsidiaries to, 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, share of any class of stock or other ownership
interest in such Person if there shall exist any Default or Event of Default or
if the making of any such payment, dividend or distribution would cause a
Default or Event of Default to occur.
56
8.12 Financial Covenants.
(a) Consolidated Tangible Net Worth. The Borrower will not permit
its Consolidated Tangible Net Worth at any time to be less than
$44,000,000 plus 50% of the Borrower's Consolidated Net Income for each
fiscal year; provided, however, that all treasury stock acquired by the
Borrower before June 30, 2000 shall reduce the Borrower's Consolidated
Tangible Net Worth requirement by the lesser of $5,000,000 or the total
amount of treasury stock so acquired; provided further, that if the
Borrower acquires any Person (subject to the terms of Section 8.5 hereof)
before June 30, 2000, the Borrower's Consolidated Tangible Net Worth
requirement will decline by the lesser of $5,000,000 or the amount of
goodwill attributable to such acquisition.
(b) Leverage Ratio. The Borrower will not permit its Leverage
Ratio to be greater than: (i) 0.55 to 1.00 from the Closing Date through
and including March 30, 2000 and (ii) 0.50 to 1.00 at any time
thereafter.
(c) Interest Coverage Ratio. The Borrower will not permit the
ratio of its Consolidated Net Income plus interest expense and
depreciation expense to interest expense to be less than 2.00 to 1.00,
calculated on a four-quarter rolling basis.
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 reimburse the Issuing Lender for any LOC Obligations when due in
accordance with the terms 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
(b) Any representation or warranty made or deemed made by the
Borrower 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 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 Sections 4.3(b), 7.1, 7.2, 7.3, 8.1, 8.2, 8.4, 8.6, 8.10,
8.11 or 8.12 or (ii) default in the
57
observance or performance of any other term, covenant or agreement
contained in this Agreement (other than as described in subsections 9(a),
9(b) or 9(c)(i) 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 $500,000 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 $500,000 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 matured Guarantee Obligations which the
Borrower and its Subsidiaries are disputing in good faith and for which
they have established adequate reserves); 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
$500,000 in the aggregate for the Borrower and its Subsidiaries or
Guarantee Obligation in a principal amount outstanding of at least
$500,000 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 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 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 shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the
Borrower any case, proceeding or other action of
58
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 any case, proceeding
or 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 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 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 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 $500,000 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 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) Any Credit Document shall fail to be in full force and effect
or to give the Agent and/or the Lenders the
59
rights, powers and privileges reasonably purported to be created thereby;
then, and in any such event, (A) if such event is an Event of Default
specified in paragraph (e) above, automatically the Commitments shall
immediately terminate and the Loans (with accrued interest thereon), and
all other amounts under the Credit Documents (including, without
limitation, the maximum amount of all contingent liabilities under
Letters of Credit which amount shall be paid to the Agent and held as
cash collateral therefor) 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
Commitments to be terminated forthwith, whereupon the 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 and direct the Borrower to pay to the Agent cash collateral as
security for the LOC Obligations for subsequent drawings under then
outstanding Letters of Credit an amount equal to the maximum amount which
may be drawn under Letters of Credit then outstanding, 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 Firstar Bank
Milwaukee, N.A. 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 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
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against the Agent. The provisions of this Section are solely for the benefit of
the Agent and the Lenders and the Borrower shall not 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.
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 the Borrower
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 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 Borrower 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 Borrower.
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
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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 (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 the Borrower 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
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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.
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 Commitments have expired or been
terminated, in accordance with the respective principal amounts of outstanding
Loans and Participation Interests 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 as though the Agent were not Agent hereunder. With respect to
its Loans and Participation Interests, the Agent shall have the same rights,
obligations and powers under this Credit Agreement as any Lender and may
exercise the same as though it were not Agent, and the terms "Lender" and
"Lenders" shall include the Agent in its individual capacity.
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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.
SECTION 11
MISCELLANEOUS
11.1 Amendments and 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 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,
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modify or waive any provision of Section 10 without the written consent of the
then Agent, or (iv) amend Section 4.12 without the written consent of all
Lenders. Any such waiver, amendment, supplement or modification 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 3, 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 certified or registered 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:
The Borrower: LaCrosse Footwear, Inc.
▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
65
The Agent: Firstar Bank Milwaukee, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Northern The Northern Trust Company
Trust Company: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Trust and ▇▇▇▇▇▇ Trust and Savings Bank
Savings Bank: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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 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 the costs and expenses of its counsel incurred in
connection with the preparation and execution of the Credit Documents and the
consummation of the transactions
66
contemplated thereby in an amount not to exceed $10,000 and to pay or reimburse
the Agent for all of its reasonable costs and expenses (including reasonable
attorneys' fees) incurred in connection with any amendment, supplement or
modification to the Credit Documents and any other documents prepared in
connection herewith or therewith,(b) 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 allocated costs
of in-house legal counsel), (c) 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 (d) 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
67
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, 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 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 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 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
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entitled to the benefits of Sections 4.6, 4.7, 4.8, 4.9 and 11.5 with
respect to its participation in the 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 to any Lender or any Affiliate thereof and with the consent of
the Agent and, so long as no Event of Default has occurred and is
continuing, the consent of the Borrower (which consent shall not be
unreasonably withheld), to one or more additional banks or financial
institutions ("Purchasing Lenders"), 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. 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 obligations of a Lender hereunder with a
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
69
equal to the Commitment assumed by it pursuant to such Commitment
Transfer Supplement and, unless the transferor Lender has not retained a
Commitment hereunder, a new Note to the order of the transferor Lender in
an amount equal to the 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 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 $2,500 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 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, subject to the terms of Section 11.8 hereof.
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(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 4.9.
(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 use its best
efforts to hold in confidence any material nonpublic information delivered or
made available to them by the Borrower. Notwithstanding the foregoing, nothing
herein shall prevent the
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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 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 but only if 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.
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11.14 Consent to Jurisdiction and Venue. All judicial proceedings brought
against the Borrower 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 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, 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 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 in the court of any other jurisdiction.
11.15 Acknowledgments. The Borrower 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 Borrower arising out of or in connection
with this Credit Agreement and the relationship between Agent and
Lenders, on one hand, and the Borrower, 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
Borrower and the Lenders.
11.16 Waivers of Jury Trial. THE BORROWER, 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 BORROWER, 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 AND, IN THE CASE OF DAMAGES ARISING FROM
THE ISSUANCE OR FAILURE TO ISSUE ANY LETTER OF CREDIT OR THE HONORING OR FAILURE
TO HONOR ANY DRAFT PRESENTED UNDER ANY LETTER OF CREDIT, ANY CONSEQUENTIAL
DAMAGES.
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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: LACROSSE FOOTWEAR, INC.,
a Wisconsin corporation
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President - Finance
LENDERS: FIRSTAR BANK MILWAUKEE, N.A.,
in its capacity as Agent and as
a Lender
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President