Exhibit 10.17
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LOANS BY
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M&I MARSHALL & ILSLEY BANK,
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NBD BANK, N.A.
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AND
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WACHOVIA BANK OF GEORGIA, N.A.
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TO
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MARQUETTE ELECTRONICS, INC.
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December 12, 1995
LOANS BY
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M&I MARSHALL & ILSLEY BANK,
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NBD BANK, N.A.
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AND
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WACHOVIA BANK OF GEORGIA, N.A.
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TO
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MARQUETTE ELECTRONICS, INC.
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December l2, l995
Closing Documents
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Document Tab No.
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Loan Agreement l
Schedules and Exhibits to Loan Agreement: 2
Exhibit A-l - Term Note (M&I Marshall & Ilsley Bank)
Exhibit A-2 - Term Note (NBD Bank)
Exhibit A-3 - Term Note (Wachovia Bank of Georgia,
N.A.)
Exhibit B - Officer's Certificate
Exhibit C - Borrower's Counsel Opinion
Schedule 3 - Liens
Schedule 4 - Subsidiaries
Term Note payable to M&I Marshall & Ilsley Bank in the 3
principal amount of $30,000,000
Term Note payable to NBD Bank in the principal 4
amount of $30,000,000
Term Note payable to Wachovia Bank of Georgia, N.A. 5
in the principal amount of $30,000,000
Second Amended and Restated Promissory Note Payable 6
to M&I Marshall & Ilsley Bank in the principal
amount of $20,000,000
Certified Borrowing Resolutions 7
Certificate as to Incumbency 8
Certificate as to Articles of Incorporation and By-laws 9
Certificate of Status from Secretary of State of 10
Wisconsin
Borrower's Counsel Opinion ll
Amendment to Loan Agreement dated May 31,1994 among 12
M&I Marshall & Ilsley Bank, NBD Bank and Marquette
Electronics, Inc.
2
_______________________________________________________________________________
LOAN AGREEMENT
By and Among
MARQUETTE ELECTRONICS, INC.
and
M&I MARSHALL & ILSLEY BANK,
NBD BANK
and
WACHOVIA BANK OF GEORGIA, N.A.
Dated as of
December 12, 1995
_______________________________________________________________________________
Godfrey & Kahn, S.C.
780 N. Water Street
Milwaukee, WI 53202
(414) 273-3500
LOAN AGREEMENT
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THIS AGREEMENT is made as of the 12th day of December 1995, by and among
MARQUETTE ELECTRONICS, INC., a Wisconsin corporation ("Borrower"), and M&I
MARSHALL & ILSLEY BANK, a Wisconsin banking corporation ("M&I"), NBD BANK, a
Michigan banking corporation (formerly known as NBD Bank, N.A.) ("NBD") and
WACHOVIA BANK OF GEORGIA, N.A., a national banking association ("Wachovia")
(collectively, the "Banks" and individually, a "Bank"). Unless otherwise
indicated herein, capitalized terms shall have the meanings set forth in Section
9 hereof.
WITNESSETH:
WHEREAS, Borrower is seeking to acquire all of the outstanding capital
stock of E for M Corporation, a Delaware corporation ("E for M"), pursuant to
the terms of a certain Agreement and Plan of Merger dated as of November 5, 1995
by and among Borrower, E for M and Marquette Sub Corp., a Delaware corporation
and wholly-owned subsidiary of Borrower ("Sub Corp") (the "Acquisition"); and
WHEREAS, Borrower has requested that the Banks make the Term Loans (as
defined below) in the aggregate principal amount of $90,000,000, the proceeds of
which will be used to fund all or a portion of the purchase price for the
Acquisition; and
WHEREAS, the Banks are willing to make the Term Loans to Borrower but only
on the terms and conditions hereinafter set forth and in reliance on the
representations and warranties of Borrower herein contained.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged the parties hereto agree as
follows:
1. Term Loans. M&I agrees to make a Term Loan to the Borrower in the amount
of $30,000,000 (the "M&I Term Loan"), NBD agrees to make a Term Loan to the
Borrower in the amount of $30,000,000 (the "NBD Term Loan") and Wachovia agrees
to make a Term Loan to the Borrower in the amount of $30,000,000 (the "Wachovia
Term Loan"), all on the terms and conditions hereinafter set forth in this
Agreement. The M&I Term Loan, the NBD Term Loan and the Wachovia Term Loan are
hereinafter collectively referred to as the Term Loans." Each of the Banks
agrees that their respective Term Loans may be made in two installments upon
request of the Borrower. The Banks shall not be required to make
any of the Term Loans (or any portion thereof) on any day which is not a
Business Day. The proceeds of the Term Loans shall be used by the Borrower for
the purchase of stock of E for M and the payment of the costs and expenses of
the Acquisition. Borrower may, at its option, without premium or penalty, prepay
the Term Loans in whole or in part, provided that any such prepayments shall be
made by Borrower on a prorata basis among the Term Loans, provided, however,
that no prepayments of the M&I Term Loan, the NBD Term Loan or the Wachovia Term
Loan may be made on any day other than the last day of any Interest Period in
effect for the M&I Term Loan, the NBD Term Loan or the Wachovia Term Loan, as
the case may be, during the term hereof. Each payment of principal, including
any such prepayments, shall be applied to the installments payable under the
Term Notes (as defined below) in their order of maturity.
(a) Interest. Interest shall accrue on the unpaid principal amount of
the Term Loans from time to time outstanding during each Interest Period at
a rate per annum equal to the LIBOR Rate determined for such Interest
Period plus one percent (1.0%). Interest shall be payable in arrears on the
last day of each Interest Period during the term hereof and at maturity.
Interest shall be computed on the basis of a 360 day year for the actual
number of days elapsed. M&I is authorized to debit Borrower's account at
M&I (Account No. 203491) by the amount of any interest payment which is due
to M&I. NBD and Wachovia shall each provide Borrower with a statement of
the amount of any interest payment which is due to NBD and to Wachovia,
respectively. If all or a portion of the principal amount of any Term Loan
made hereunder shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), any overdue principal amount thereof shall
bear interest at a rate per annum equal to the M&I Rate plus two percent
(2.0%) (the Default Rate"). Any change in the Default Rate resulting from a
change in the M&I Rate shall become effective as of the opening of business
on the date on which such change in the M&I Rate shall become effective.
(b) Term Notes. Term Loans made by M&I, NBD and Wachovia, respectively,
shall be evidenced by three promissory notes of Borrower (the "Term Notes")
substantially in the form of Exhibits A-1, A-2 and A-3 attached hereto,
payable to the order of M&I, NBD and Wachovia, respectively, and each
representing in the aggregate the obligation of Borrower to pay to M&I,
NBD and Wachovia, respectively, the aggregate unpaid principal amount of
the Term Loan made by such Bank, with interest thereon as provided in
subsection l(a). Each Term Note (i) shall be
2
dated as of the date of this Agreement, (ii) shall be stated to mature on
October 31, 2000, and (iii) shall be payable in eight (8) equal
installments of principal in the amount of $3,750,000 each on the last day
of April and October of each year commencing April 30, 1997.
(c) Selection of Interest Period. Borrower shall select Interest
Periods with respect to each Term Note. Each notice pursuant to which
Borrower selects an Interest Period must be received by M&I, NBD or
Wachovia, as the case may be, prior to 11:00 a.m. Milwaukee time (i) on the
Effective Date with respect to the initial Interest Period or, (ii) with
respect to subsequent Interest Periods, three (3) Business Days prior to
the last day of the next preceding Interest Period. Each such notice shall
be by telephone, telecopy or cable, confirmed immediately in writing,
specifying therein the requested Interest Period and shall be irrevocable
and binding on Borrower. In the event Borrower fails to provide notice of
its selection of an Interest Period, the Interest Period which Borrower
failed to select shall automatically be one month. Following receipt of
Borrower's notice of its selection of an Interest Period, each Bank shall
notify Borrower as soon as practicable of its determination of the LIBOR
Rate for such Interest Period.
2. Representations and Warranties. In order to induce the Banks to enter
into this Agreement and to make the loans herein provided for, and in
recognition of the fact that the Banks are acting in reliance thereupon,
Borrower hereby covenants, represents and warrants as follows:
(a) Corporate Existence; Corporate Power. Borrower and the Significant
Subsidiaries are each corporations duly organized, validly existing, and in
good standing under the laws of their respective states of incorporation
and are duly authorized under all applicable provisions of law to carry on
their businesses as presently conducted. Borrower and the Significant
Subsidiaries are each duly qualified as foreign corporations and are in
good standing under the laws of each jurisdiction where their ownership,
lease or operation of their respective properties or the conduct of their
respective businesses requires such qualification and the failure to so
qualify either individually or in the aggregate would have a material
adverse effect on Borrower's or any Significant Subsidiary's financial
condition or the conduct of their respective businesses. Borrower
has the corporate power and authority to enter into,
3
deliver, issue and perform all of its obligations under this Agreement and
the Term Notes and to borrow hereunder.
(b) No Legal Bar; Enforceable Obligations. The execution, delivery and
performance of this Agreement, the Term Notes, and any other agreement,
certificate or instrument delivered by Borrower to Banks in connection with
this Agreement, prospective borrowings hereunder and use of the proceeds
thereof by Borrower (i) have been duly authorized by all necessary
corporate action, (ii) are not in violation of or in contravention of any
provisions of the Articles of Incorporation and By-Laws of Borrower, (iii)
will not violate any indenture, contract or agreement to which Borrower is
a party or to which it is subject or any statute, rule or regulation
binding upon Borrower, (iv) will not require any consent or approval of
Borrower's stockholders and (v) will not result in, or require, the
creation or imposition of any Lien on any of Borrower's properties or
revenues pursuant to any requirement of law or contractual obligation of
Borrower except as provided in this Agreement. This Agreement, the Term
Notes and any other agreement, certificate or instrument delivered by
Borrower to Banks in connection with this Agreement when duly executed and
delivered on behalf of the Borrower will constitute legal, valid and
binding obligations of Borrower enforceable against Borrower in accordance
with their terms.
(c) Litigation. Neither Borrower nor either of the Significant
Subsidiaries is a party to any litigation or administrative proceedings,
nor so far as it is known by Borrower is any litigation or administrative
proceeding threatened against it or either of the Significant Subsidiaries
which litigation or administrative proceedings, existing or threatened,
would, if adversely determined, cause any material adverse change in
Borrower's financial condition or in the conduct of the Borrower's or
either of the Significant Subsidiaries' businesses.
(d) Financial Condition. All copies of financial statements,
documents, contracts, agreements and assignments which Borrower has
furnished to Banks are true and correct in all material respects. There has
been no material change in the property or business operations of Borrower
or either of the Significant Subsidiaries since the date of the last
financial statements delivered to Banks, except pursuant to the conduct of
their ordinary business, and except as shall have been disclosed in writing
by Borrower to Banks prior to the date of the execution of this Agreement.
4
(e) Taxes. Borrower and each of the Significant Subsidiaries have paid
all federal, state and local taxes which are required to be paid by them
(except for taxes being contested in good faith by appropriate proceedings
and as to which reserves have been established by Borrower or either of the
Significant Subsidiaries, as the case may be, in accordance with GAAP
consistently applied, which reserves are set forth in Borrower's or the
Significant Subsidiaries, financial statements).
(f) Securities Laws; Investment Company Act; Board Regulations.
Borrower and each of the Significant Subsidiaries have filed and will file
when due all statements, if any, which it may be required to file under the
provisions of any state or federal securities laws or regulations. Neither
Borrower nor either of the Significant Subsidiaries is an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended, nor is Borrower
or either of the Significant Subsidiaries engaged, principally or as one of
its important activities, in the business of extending credit for the
purpose of "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the
Board of Governors of the Federal Reserve System as now and from time to
time in effect.
(g) Ownership of Property. Borrower and each of the Significant
Subsidiaries own all of their assets that appear on their respective
balance sheets free and clear of any Liens, except as previously disclosed
in writing by Borrower or the Significant Subsidiaries to the Banks prior
to the date hereof and except for financing leases referred to in
Borrower's or the Significant Subsidiaries' financial statements.
(h) Compliance with Laws. Borrower and each of the Significant
Subsidiaries are in compliance in all material respects with all of the
requirements of applicable federal, state and local statutes, regulations
and ordinances relating to the business operations and the assets of the
Borrower and of the Significant Subsidiaries ("requirements of law"), the
violation of which could reasonably be expected to materially affect the
Borrower on a Consolidated basis.
(i) Environmental Matters. Borrower's and the Significant Subsidiaries'
operations (a) are in compliance in all material respects with all of the
requirements of
5
applicable federal, state and local environmental, health and safety
statutes and regulations ("environmental laws"), and (b) are not the
subject of any federal or state investigation evaluating whether any
remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment which could reasonably be expected
to materially affect the Borrower on a consolidated basis. Borrower has not
received any notice or claim to the effect that Borrower is or may be
liable to any Person (including, without limitation, any individual or
government, whether national, federal, state, county, city or municipal) as
a result of the release of any toxic or hazardous waste or substance into
the environment which could reasonably be expected to materially affect the
Borrower. Borrower and each of the Significant Subsidiaries have all
permits, licenses and approvals required under all applicable environmental
laws and have paid all fees relating thereto and are in compliance with all
terms and conditions thereof.
(j) ERISA. All Plans maintained by Borrower and the Significant
Subsidiaries are in compliance in all material respects with the applicable
provisions of ERISA. Neither Borrower nor either of the Significant
Subsidiaries has incurred any "accumulated funding deficiency" within the
meaning of Section 302 of ERISA in connection with any Plan. There has been
no "reportable event" within the meaning of Section 4034(b) of ERISA for
any Plan the occurrence of which would have a material adverse effect on
Borrower or the Significant Subsidiaries, nor has Borrower or either of the
Significant Subsidiaries incurred any material liability to the Pension
Benefit Guaranty Corporation.
3. Affirmative Covenants of Borrower. Borrower covenants and agrees
that so long as any Term Note remains outstanding and unpaid or any amount is
owed to any one or more of the Banks, Borrower shall:
(a) Financial Statements. Deliver to each Bank:
(i) as soon as practicable and in any event within 30 days after
the end of each fiscal quarter, consolidated statements of earnings and
a statement of cash flows of the Borrower for the period from the
beginning of the current fiscal year to the end of such fiscal quarter,
and a consolidated balance sheet of Borrower as at the end of such
fiscal quarter, all in reasonable detail and certified by an authorized
financial officer of Borrower, subject to changes resulting from year-
end adjustments;
6
(ii) as soon as practicable and in any event within 90 days after
the end of each fiscal year, a statement of earnings, reconciliation of
retained earnings, a statement of cash flows and a balance sheet of
Borrower as at the end of such year, each prepared on a consolidated
and consolidating basis, setting forth in each case in comparative form
corresponding figures from the preceding annual audit, all in
reasonable detail and accompanied by an opinion of independent public
accountants of recognized standing selected by Borrower which opinion
shall be without qualification as to the compliance of such statements
and the balance sheet with GAAP;
(iii) promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as it
shall send to its stockholders and copies of all registration
statements (without exhibits) and all reports which it files with the
Securities and Exchange Commission (or any governmental body or agency
succeeding to the functions of the Securities and Exchange Commission);
(iv) promptly upon receipt thereof, a copy of all other reports
submitted to Borrower or either of the Significant Subsidiaries by
independent accountants in connection with any annual, interim or
special audit made by them of the books of Borrower or either of the
Significant Subsidiaries;
(v) Each Bank may at any time, and without notice to or consent of
Borrower, deliver to any financial institution which is a
participant in or assignee of any portion of the loans which are the
subject of this Agreement in accordance with subsection 9(a), below,
copies of all financial statements, reports, or any other documents
delivered to the Banks hereunder; and
(vi) with reasonable promptness, such other financial data as the
Banks may reasonably request.
Together with the delivery of the financial statements required by
clauses (i) and (ii), above, Borrower will deliver to each of the Banks
a completed Officer's Certificate substantially in the form attached
hereto as Exhibit B, and together with the delivery of the financial
statements required by clause (ii), above, Borrower will deliver to
each of the Banks a certifi-
7
care of the Borrower's independent public accountants (A) stating
that, in making the audit necessary to issue its opinions with respect
to such financial statements, they have obtained no knowledge of any
Event of Default or Default, or, if any such Event of Default or
Default exists, specifying the nature and period of existence thereof
and (B) stating that Borrower has, during the applicable period,
observed or performed the covenants set forth in subsections 4(a),
4(b) and 4(c), below, and showing in detail the calculations
supporting such statement. Borrower also covenants that forthwith upon
the President or Chief Financial Officer of Borrower obtaining
knowledge of an Event of Default or Default, it will deliver to the
Banks an Officer's Certificate specifying the nature thereof, the
period of existence thereof, and what action Borrower proposes to take
with respect thereto. Any management letters or other material non-
public financial information provided to the Banks by Borrower
pursuant to this Agreement shall be used only by the Banks, their
respective employees, agents and representatives, and their
respective accountants and auditors in connection with the
administration of this Agreement and the indebtedness hereunder, and
otherwise shall be held in confidence; provided, however, that nothing
herein contained shall be deemed to prohibit any disclosure to
regulatory or governmental authorities required by applicable law,
regulation or order.
(b) Books and Records; Inspection of Property. Keep, and cause
each Significant Subsidiary to keep, proper books of record and account;
permit any person designated by the Banks to visit and inspect any of the
properties of Borrower or either of the Significant Subsidiaries, to
examine the corporate books and financial records of Borrower or either of
the Significant Subsidiaries and make copies thereof or extracts therefrom
and to discuss the affairs, finances and accounts of Borrower or the
Significant Subsidiaries with the principal officers of Borrower or the
Significant Subsidiaries, all at such reasonable times and as often as the
Banks may reasonably request.
(c) Maintenance of Property Insurance. Keep, and cause the
Significant Subsidiaries to keep, its properties, whether owned or leased,
in good condition, repair and working order, other than property no longer
deemed by Borrower or either of the Significant Subsidiaries necessary for
the conduct of their respective businesses; maintain and cause the
Significant Subsidiaries to maintain, purchased insur-
8
ance or self-insurance reserves in such amounts and against such
liabilities and hazards as customarily are maintained by other companies
operating similar businesses and together with each delivery of financial
statements under clause (ii) of subsection 3(a) it will, upon the Banks'
request, deliver an Officer's Certificate specifying the details of such
insurance in effect.
(d) Taxes. Pay and discharge and cause the Significant
Subsidiaries to pay and discharge all lawful taxes, assessments and
governmental charges upon them or against their respective properties
prior to the date on which penalties are attached thereto, unless and to
the extent only that such taxes are contested in good faith and by
appropriate proceedings and Borrower has established appropriate reserves
for the payment of such taxes in accordance with GAAP.
(e) Compliance with Laws. Timely comply in all material respects
with all requirements of law, maintain its corporate existence and
preserve and keep in full force and effect its rights and franchises
necessary to continue its business.
(f) Compliance with Environmental Laws. Timely comply in all
material respects with all of the requirements of applicable environmental
laws and maintain and comply with the terms and conditions of all permits,
licenses and approvals required under applicable environmental laws;
promptly following Borrower learning of the following, deliver written
notice to each of the Banks of any pending or threatened litigation or
administrative proceeding alleging any violation of environmental laws.
4. Neqative Covenants. Borrower covenants and agrees that so long
as any Term Note remains outstanding and unpaid or any amount is owed to any one
or more of the Banks, Borrower shall not, directly or indirectly:
(a) Tangible Net Worth. Permit Tangible Net Worth at any time to
be less than $72,000,000 plus, on a cumulative basis from and after the
last day of each fiscal year commencing April 30, 1996, fifty percent (50%)
of Net Earnings during the prior fiscal year, provided, however, that for
any fiscal year in which Net Earnings for the prior fiscal year is a
negative amount, the minimum Tangible Net Worth shall be equal to the
minimum Tangible Net Worth for such prior fiscal year.
9
(b) Total Liabilities to Tangible Net Worth. Permit the ratio of Total
Liabilities to Tangible Net Worth at any time during each of the fiscal
years set forth below to exceed the ratios set forth opposite each such
fiscal year:
Maximum Total Liabilities
Fiscal Year to Tanqible Net Worth
----------- -------------------------
Fiscal year ending April 30, 1996 4.00 to 1
Fiscal year ending April 30, 1997 3.75 to 1
Fiscal year ending April 30, 1998 3.50 to 1
Fiscal year ending April 30, 1999 3.25 to 1
Fiscal year ending April 30, 2000 3.00 to 1
Fiscal year ending April 30, 2001 2.75 to 1
(c) Interest Charge Coverage. Permit the Interest Charge Coverage
Ratio for any twelve (12) month period ending as of the end of any fiscal
quarter ending on and after July 31, 1996 to be less than 3.0 to 1.0.
(d) Liens. Create, assume or suffer to exist or permit the
Significant Subsidiaries to create or suffer to exist, any Lien upon any of
their respective properties or assets, whether now owned or hereafter acquired,
except:
(i) Liens for taxes not yet due or which are being actively
contested in good faith by appropriate proceedings;
(ii) Other Liens incidental to the conduct of its or either of
the Significant Subsidiaries' respective businesses or the ownership of its
or either of the Significant Subsidiaries' respective property and assets
which were not incurred in connection with the borrowing of money or the
obtaining of advances or credit, and which do not in the aggregate
materially detract from the value of its property or assets or materially
impair the use thereof in the operation of its or either of the
Significant Subsidiaries' respective businesses;
(iii) Liens presently existing that are described in Schedule
1 hereto;
(iv) Liens in connection with Capital Lease Obligations to
the extent permitted pursuant to subsection 4(e)(iii), below;
10
(v) Liens on life insurance policies owned by Borrower or either of
the Significant Subsidiaries securing policy loans obtained from the
insurers under such policies, provided that (A) the aggregate amount
borrowed on each policy shall not exceed the loan value thereof, and (B)
neither Borrower nor the Significant Subsidiaries shall incur any liability
to repay any such loan;
(vi) Other Liens placed upon property being acquired by Borrower or
either of the Significant Subsidiaries to secure a portion of the purchase
price thereof other than Liens securing Funded Debt permitted by clause
(iii) of subsection 4(e); and
(vii) Other Liens; provided the aggregate principal amount of
indebtedness secured by such Liens and incurred by Borrower and the
Significant Subsidiaries shall not exceed $3,000,000 in the aggregate at any
time outstanding.
(e) Funded Debt. Create, incur, assume or suffer to exist or permit the
Significant Subsidiaries to create, incur, assume or suffer to exist, any Funded
Debt, except:
(i) Funded Debt represented by the Term Notes;
(ii) Funded Debt of Borrower represented by the M&I Revolver Note and
the Existing Term Notes;
(iii) Capital Lease Obligations pursuant to which the Borrower and the
Significant Subsidiaries are not obligated to pay more than $1,000,000 in
the aggregate during any fiscal year during the term hereof; and
(iv) other Funded Debt of Borrower and the Significant Subsidiaries
not exceeding an aggregate principal amount of $3,000,000 at any time
outstanding.
(f) Loans, Advances, Investments and Contingent Liabilities. Make or permit
to remain outstanding any loan or advance to, or guarantee, endorse or otherwise
be or become contingently liable, directly or indirectly, in connection with the
obligations, stock or dividends of, or, other than in connection with the
Acquisition or investments in stock or securities owned by Borrower as of the
date hereof, purchase or acquire any stock, obligations or securities
11
of, or any other interest in, or make any capital contribution to, any Person,
except that Borrower may:
(i) acquire and own stock or other equity securities of its
subsidiaries in the amounts set forth on Schedule 2 hereto;
(ii) acquire and own stock, obligations or securities received
in settlement of debts (created in the ordinary course of business) owing
to Borrower;
(iii) own, purchase or acquire (A) commercial paper having the
highest rating of either Standard & Poor's Corporation or Moody's Investors
Services, Inc. (or unrated commercial paper issued by corporate obligors
which support the issuance of such commercial paper through the
availability of a line of credit provided by a United States commercial
bank having capital resources in excess of $50,000,000) and due within one
year from the date of purchase, (B) certificates of deposit due within one
year from the date of purchase and issued by M&I, NBD or Wachovia, (C) bank
repurchase agreements offered by M&I, NBD or Wachovia, (D) obligations
tions of the United States Government or any agency thereof, and
obligations guaranteed by the United States Government and (E) shares in
a money market mutual fund or a tax exempt mutual fund offered through
M&I's Investment Department;
(iv) endorse negotiable instruments for collection in the
ordinary course of business;
(v) make or permit to remain outstanding travel and other like
advances to officers and employees in the ordinary course of business;
(vi) guarantee, endorse or otherwise be or become contingently
liable, directly or indirectly, in connection with the obligations of any
other person if (A) Borrower shall be and remain at all times in compliance
with subsections 4(a), 4(b) and 4(c) and (B) the aggregate amount of such
guarantees, endorsements or contingent liabilities does not exceed
$10,000,000 at any time outstanding; and
(vii) make or permit to remain outstanding loans and advances
to the Significant Subsidiaries provided such loans and advances are made
in the ordinary course of Borrower's business.
12
(g) Merger and Sale of Assets. Except in connection with the
Acquisition, merge or consolidate with any other corporation or sell, lease
or transfer or otherwise dispose of all or a substantial part of its
assets, or assets which shall have contributed more than ten percent (10%)
of Net Earnings for any of the three fiscal years then most recently ended,
to any Person.
(h) Restrictions on Transactions With Stockholders and
Affiliates. Directly or indirectly, purchase, acquire or lease any property
(other than shares of stock of Borrower) from, or sell, dispose of or lease
any property (other than shares of stock of Borrower) to, or otherwise deal
with (A) any Substantial Stockholder, (B) any corporation in which a
Substantial Stockholder owns 5% or more of the outstanding voting stock, or
(C) any Affiliate, except:
(i) on terms not less favorable to the Borrower than would
be usual and customary in similar transactions with non-affiliated
persons;
(ii) that a Substantial Stockholder may be a director,
officer or employee of Borrower and may be paid usual and customary
compensation in connection therewith; and
(iii) that so long as Marquette Capital Corporation
("MCC") is a corporation described in part B, above, Borrower may
lease vehicles from MCC on such terms mutually acceptable to MCC and
Borrower.
(i) Chanqe in Control. Permit any Person or group of Persons
acting in concert (other than Affiliates, including without limitation,
employee benefit plans, of the Borrower), in one or in a series of
transactions, to hereafter acquire more than twenty-five percent (25%) of
the Borrower's outstanding voting securities.
(j) ERISA. (i) Terminate or permit any Significant Subsidiary to
terminate any Plan, (ii) engage or permit any Significant Subsidiary to
engage in any "prohibited transaction" (as defined in ERISA) or (iii)
incur or suffer to exist any material "accumulated funding deficiency" (as
defined in ERISA), if any of the foregoing creates a material risk
that the Borrower or a Significant Subsidiary will incur any material
liability to the Pension Benefit Guaranty Corporation.
13
5. Events of Default. An "Event of Default" shall be deemed to have
occurred if:
(a) Any representation or warranty made by Borrower in this
Agreement, or in any certificate of Borrower furnished to Banks hereunder,
shall prove to have been incorrect in any material respect as of the time
when made.
(b) If Borrower shall fail to pay any interest or principal on
any of the Term Loans when due hereunder or fail to pay when due any
principal or interest on any of its other indebtedness to any one or more
of the Banks, including, without limitation, the M&I Revolver Note, or
either or both of the Existing Term Notes, whether at maturity or by
acceleration or otherwise, and such failure shall continue uncured for a
period of five (5) days after the applicable due date.
(c) Borrower shall default in the performance or observance of
any covenant or agreement contained in this Agreement or in any other
agreement between Borrower and any of the Banks; provided, however, that a
breach in the performance or observance of an affirmative covenant or
agreement contained in Section 3 of this Agreement shall only constitute a
default if the breach remains uncured for a period of thirty (30) days
after written notice thereof from Banks to Borrower.
(d) Borrower or any Significant Subsidiary shall:
(i) Apply for or consent to the appointment of a receiver,
trustee or liquidator of Borrower or of all or a substantial part of
the assets of borrower;
(ii) Be unable to, or admit in writing its inability to, pay
its debts as they mature;
(iii) Make a general assignment for the benefit of
creditors;
(iv) Be adjudicated bankrupt or insolvent;
(v) File a voluntary petition in bankruptcy or a petition
or an answer seeking reorganization or an arrangement with creditors
or to take advantage of any insolvency law, or an answer admitting the
material allegations of a petition filed against Borrower in any
bankruptcy, reorganization or insolvency proceeding; or
14
(vi) Take any corporate action for the purpose of
effecting any of the foregoing.
(e) A petition for an order, judgment or decree shall be filed,
without the application, approval or consent of Borrower or a Significant
Subsidiary, with any court of competent jurisdiction, seeking
reorganization of Borrower or such Significant Subsidiary, or the
appointment of a receiver, trustee or liquidator of Borrower or such
Significant Subsidiary or of all or a substantial part of the assets of
Borrower or such Significant Subsidiary, and such petition shall remain
undismissed for any period of sixty (60) days.
(f) Borrower or either of the Significant Subsidiaries shall
default in the payment of principal or interest on any obligation for
borrowed money in a principal amount greater than or equal to $1,000,000
beyond any period of grace provided with respect thereto or in the
performance of any other agreement, term or condition contained therein or
in any agreement or security interest relating to any such obligation, if
the effect of such default is to cause or permit the holder or holders of
such obligation (or a trustee or agent on behalf of such holder or holders)
to cause such obligation to become due prior to its stated maturity.
(g) A final judgment which, together with other outstanding
final judgments against it or either of the Significant Subsidiaries,
exceeds an aggregate of $1,000,000 shall be entered against Borrower or
either of the Significant Subsidiaries and remains outstanding and
unsatisfied or unstayed after sixty (60) days from the date of entry
thereof, unless an appeal has been taken and perfected within the time
provided by law and suitable bond has been provided or other agreement made
to stay execution of such judgment.
6. Rights Upon Default. If any of the Events of Default specified in
subsection 5(d) or 5(e) shall occur, the Term Notes and any other amounts owing
under this Agreement, the M&I Revolver Note, the Existing Loan Agreement and the
Existing Term Notes shall immediately become due and payable. If any other Event
of Default shall occur, any Bank may (i) by notice of default to Borrower,
declare such Bank's obligations hereunder terminated forthwith, whereupon such
obligations shall terminate, and/or (ii) by notice of default to Borrower and to
the other Banks, declare such Bank's Term Loan and all amounts owing to such
Bank hereunder and under such Bank's Term Note, and to the extent such Bank has
any interest therein, under the M&I Revolver
15
Note and the Existing Term Notes, to be due and payable forthwith, whereupon the
same shall become immediately due and payable. Except as expressly provided
above in this Section, presentment, demand, protest and further notice of any
kind are hereby expressly waived. Notwithstanding the foregoing, the Banks'
obligations to maintain the confidentiality of any nonpublic financial
information of Borrower provided to the Banks pursuant to subsection 3(a) of
this Agreement shall survive the termination of its other obligations hereunder.
In the event of any occurrence of any Event of Default, Borrower shall
pay all costs and expenses which may be incurred by the Banks with respect
thereto and with respect to the collection of any amounts due the Banks pursuant
hereto or the enforcement of any provisions hereof, including reasonable
attorneys' fees and expenses of litigation, and all such sums shall be and
become part of the indebtedness pursuant to this Agreement. In addition to and
not in lieu of any other right or remedy they may have at any time, the Banks at
any time and from time to time at their election, may (but they shall not be
required to) do or perform or comply with or cause to be done or performed or
complied with anything which Borrower may be required to do or comply with under
this Agreement if Borrower shall fail to do so; Borrower shall reimburse the
Banks upon demand for any reasonable cost or expense the Banks may pay or incur
in such respect, together with interest thereon at a per annum rate equal to the
Default Rate from the date of such demand until paid in full. The failure of the
Banks at any time or from time to time to exercise any right or remedy, whether
arising from or by virtue of any Event of Default or otherwise, shall not
constitute a waiver of any such right or remedy and shall not impair the right
of Banks to exercise such right or remedy or any other right or remedy
thereafter or to insist upon strict performance. No waiver of any right or
remedy by the Banks shall be valid or effective unless made in writing and
signed by an officer of each Bank. Any effective waiver of any right or remedy
shall not be deemed to constitute a waiver of any other right or remedy then
existing or which may thereafter arise or accrue. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law. Upon the
occurrence of any Event of Default, and pursuant to the provisions of this
Section, any Bank may sue to enforce the obligations of Borrower to such Bank
pursuant to this Agreement.
7. Conditions Precedent. This Agreement shall be effective on satisfaction of
the conditions set forth below and the Banks shall be under no obligation to
make the Term Loans unless the following conditions shall have been satisfied:
16
(a) The representations and warranties of Borrower contained
herein shall be true at the time of the making of the Term Loans as though
such representations and warranties were made at such time.
(b) Borrower shall have performed and complied with all agreements
and conditions required by this Agreement to be performed or complied with
by it.
(c) On the date the Banks make the Term Loans hereunder, Borrower
shall have delivered to Banks an opinion in writing of Borrower's legal
counsel, which counsel shall be acceptable to Banks, dated on or after the
date of this Agreement, with respect to the matters set forth on Exhibit C
to this Agreement.
(d) Borrower shall furnish to the Banks copies of its most recent
financial statements prepared in accordance with the provisions of
subsection 3(a).
(e) Borrower shall furnish the Banks with certified resolutions of
its Board of Directors authorizing its execution and delivery of this
Agreement and the performance of its obligations and covenants contained
herein.
(f) Borrower shall furnish the Banks with a certificate as to (i)
the incumbency of the persons authorized to execute this Agreement, the
Term Notes, and all other documents to be executed in connection with the
transactions which are the subject of this Agreement and (ii) the
Borrower's Articles of Incorporation and By-laws, copies of which shall be
attached to such certificate.
(g) Borrower shall furnish the Banks with a Certificate of Status
from the Secretary of State of the State of Wisconsin showing the Borrower
to be in "active status."
(h) The Banks shall have received the Term Notes payable to the
order of each Bank as appropriate and M&I shall have received the M&I
Revolver Note payable to the order of M&I, conforming to the requirements
hereof and duly executed by the Borrower.
8. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) "Affiliate" shall mean any Person, firm or corporation which,
directly or indirectly, controls or is
17
controlled by or is under common control with the Borrower. For the
purposes of this definition "control" (including, with the correlative
meanings, the terms "controlled by" and "under common control with") means
the possession, directly or indirectly, of the power to direct or cause the
direction of management and policies, either directly or indirectly,
whether through the ownership of voting securities or by contract or
otherwise of any Person. In addition, the term "Affiliate" shall be deemed
to include the Michael J. Cudahy Revocable Trust created under agreement
dated July 24, 1989 and the beneficiaries thereof.
(b) "Business Day" shall mean any day except a Saturday, Sunday
or a day on which commercial banks in Milwaukee, Wisconsin, Detroit,
Michigan or Atlanta, Georgia are authorized or required by law to close.
(c) "Capital Lease Obligations" shall mean all rental
obligations which, under GAAP, are or will be required to be capitalized on
the books of Borrower in each case taken at the amount thereof accounted
for as indebtedness (net of interest expense) in accordance with GAAP.
(d) "Contingent Liability" shall mean, as to any Person, any
guarantee of indebtedness or any other obligation of any second Person or
any assurance with respect to the financial condition of any second Person,
whether direct, indirect or contingent, including, without limitation, any
purchase or repurchase agreement or other arrangement of whatever nature
having the effect of assuring or holding harmless any third Person against
loss with respect to any obligation of such second Person; provided,
however, that the term "Contingent Obligation" shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business.
(e) "Effective Date" shall mean the date on which all of the
conditions precedent set forth in Section 7 hereof have been satisfied.
(f) "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as the same may, from time to time, be supplemented or
amended.
(g) "Eurodollar Lendinq Office" shall mean, initially, the
offices of M&I, NBD or Wachovia, as the case may be, designated as such in
subsection 9(e); thereafter, such other office of M&I, NBD or Wachovia, as
the case may be, if
18
any, through which the LIBOR Rate is determined as provided herein.
(h) "Existinq Loan Aqreement" shall mean that certain Loan
Agreement by and among Borrower, M&I AND NBD dated May 31, 1994, as amended
as of the date hereof, and any further amendments, replacements or renewals
thereof.
(i) "Existinq Term Notes" shall mean the term notes issued by
Borrower to M&I and NBD pursuant to the Existing Loan Agreement.
(j) "Funded Debt" shall mean any obligation payable more than
one year from the date of the creation thereof, which under GAAP is shown
on the balance sheet as a liability (including, without limitation,
Capital Lease Obligations and excluding reserves for deferred income taxes
and other reserves to the extent that such reserves do not constitute an
obligation).
(k) "GAAP" shall mean generally accepted accounting principles
in the United States of America in effect from time to time.
(l) "Interest Charge Coverage Ratio" shall mean, for any twelve
(12) month period, the ratio of (i) the sum of (A) Net Earnings plus (B)
all federal, foreign, state and local taxes payable by the Borrower on a
consolidated basis with respect to its income for such period plus (C)
interest expense payable by the Borrower on a consolidated basis for such
period plus (D) all restructuring charges, special charges and write-offs
relating to the Acquisition, but only to the extent such charges do not
represent cash expenditures; to (ii) interest expense payable by the
Borrower on a consolidated basis for such period, all determined in
accordance with GAAP on a consolidated basis.
(m) "Interest Period" shall mean:
(i) initially, the period commencing on the Effective Date
and ending one month, two months, three months or six months
thereafter, as selected by Borrower pursuant to its notice under
subsection l(c); and
(ii) thereafter, each period commencing on the day following
the last day of the next preceding Interest Period and ending one
month, two months, three
19
months or six months thereafter as selected by the Company in its
notice pursuant to subsection l(c);
provided, however, that (A) any Interest Period which commences on the last
working day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Working Day of the appropriate subsequent calendar
month, (B) each Interest Period which would otherwise end on a day which
is not a Working Day shall end on the next succeeding Working Day or, if
such next succeeding Working Day falls in the next succeeding calendar
month, on the next preceding Working Day, and (C) no Interest Period which
would end after the maturity date of the applicable Term Note shall be
permitted.
(n) "LIBOR Rate" shall mean, with respect to each applicable
Interest Period, the rate per annum equal to the quotient of (a) the rate
at which the Eurodollar Lending Office of M&I, NBD or Wachovia, as the case
may be, is offered deposits in dollars two Business Days prior to the
beginning of such Interest Period in the interbank Eurodollar market as at
or about 10:00 a.m., Milwaukee time, for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
equal to the then outstanding principal amount of the M&I Term Loan, the
NBD Term Loan and the Wachovia Term Loan, as the case may be, divided by
(b) a number equal to 1.00 minus the aggregate of the rates (expressed as a
decimal fraction) of reserve requirements current on the date two Working
Days prior to the beginning of such Interest Period (including, without
limitation, basic, supplemental, marginal and emergency reserves under any
regulations of the Board of Governors of the Federal Reserve System (the
"Boards") or other governmental authority having jurisdiction with respect
thereto), as now and from time to time hereafter in effect, dealing with
reserve requirements prescribed for Eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D of the Board)
maintained by a member bank of such System (such LIBOR Rate to be adjusted
to the next higher 1/100 of one percent).
(o) "Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention
agreement, and any lease in the nature thereof).
20
(p) "M&I Rate" shall mean the rate per annum publicly announced from
time to time by M&I in Milwaukee, Wisconsin as its prime rate. M&I may lend at a
rate higher or lower than or the same as its prime rate.
(g) "M&I Revolver Note" shall mean that certain Second Amended and
Restated Promissory Note of Borrower payable to M&I in the stated principal
amount of $20,000,000, dated the date hereof, and any amendments, replacements
or renewals thereof.
(r) "Net Earnings" shall mean gross revenues of Borrower less all
operating and non-operating expenses of Borrower, including all charges of a
proper character (including current and deferred taxes on income, provision for
taxes on unremitted foreign earnings which are included in gross revenues, and
current additions to reserves), but not including in gross revenues any gains
(net of expenses and taxes applicable thereto) in excess of losses resulting
from the sale, conversion or other disposition of capital assets (i.e., assets
other than current assets), any gains resulting from the write-up of assets, any
equity of Borrower in the unremitted earnings of any other corporation, or any
earnings of any Person acquired by Borrower through purchase, merger or
consolidation or otherwise for any year prior to the year of acquisition, all
determined in accordance with GAAP on a consolidated basis.
(s) "Person" shall mean and include an individual, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
(t) "Plan" shall mean as to any Person any pension plan, including a
"multi-employer" as defined in Section 4001(a)(3) of ERISA, that is covered by
Title IV of ERISA and in respect of which that Person or an Affiliate of that
Person is an "employer" as defined in Section 3(5) of ERISA.
(u) "Significant Subsidiaries" shall mean E for M, which upon
completion of this Acquisition shall be a wholly-owned subsidiary of Borrower,
and Corometrics Medical Systems, Inc., a Delaware corporation and a wholly-owned
subsidiary of Borrower.
(v) "Substantial Stockholder" shall mean (i) any Person owning,
beneficially or of record, directly or indirectly, either individually or
together with all other
21
Persons to whom such Person is related by blood, adoption or marriage, stock of
Borrower (of any class having ordinary voting power for the election of
directors) aggregating 5% or more of such voting power or (ii) and Person
related by blood, adoption or marriage to any Person described or coming within
the provisions of clause (i) of this subsection.
(w) "Tangible Net Worth" shall mean, as of the time of any
determination thereof, the excess of (i) the sum of (A) the par value (or value
stated on the books of Borrower) of the capital stock of all classes of
Borrower, plus (or minus in the case of a deficit) (B) the amount of the
surplus, whether capital or earned, of Borrower, over (ii) the sum of treasury
stock, unamortized debt discount and expense, goodwill, trademarks, trade names,
patents, deferred charges, distribution agreements and other assets properly
classified as intangibles on the Borrower's balance sheet; all determined in
accordance with GAAP on a consolidated basis consistent with those followed in
the preparation of the financial statements of the Borrower referred to in
subsection 3(a).
(x) "Total Liabilities" shall mean the aggregate of all liabilities and
reserves of every kind and character of Borrower determined in accordance with
GAAP on a consolidated basis consistent with those followed in the preparation
of the financial statements referred in subsection 3(a).
(y) "Working Day" shall mean any day (i) on which dealings in foreign
currencies and exchange between banks may be carried on in the place where the
Eurodollar Lending Office of M&I, NBD or Wachovia, as the case may be, through
which the LIBOR Rate is determined is located and (ii) which is a Business Day.
9. Miscellaneous
-------------
(a) The provisions of this Agreement shall inure to the benefit of and
be binding upon any successor to any of the parties hereto and shall extend and
be available to any holder of the Term Notes and renewals thereof. Borrower may
not assign or otherwise transfer its rights under this Agreement except with the
prior written consent of the Banks. None of the Banks shall participate, assign
or otherwise transfer any portion of the loans which are the subject of this
Agreement or its rights under this Agreement (a "Transfer") to any third party
(other than an affiliate of such Bank or its holding company) without the prior
written
22
consent of the Borrower. In the event any Bank (the "Transferring Bank") intends
to make a Transfer to any third party (other than an affiliate of the
Transferring Bank or its holding Company) the Transferring Bank shall provide
written notice thereof to the other Banks indicating the principal amount of the
loan or loans the Transferring Bank intends to Transfer and the proposed third
party transferee. For a period of thirty (30) days from the date of such notice,
either of the other Banks, by written notice thereof to the Transferring Bank
may elect to require the Transferring Bank to make the intended Transfer to such
Bank. Any such election may be made with respect to all or any portion of the
principal amount of the loan or loans proposed to be Transferred. If either or
both of the other Banks make such an election, the Transferring Bank shall
assign and transfer the loan or loans to the electing Bank in accordance with
their respective elections or prorata based on the principal amount of loans
outstanding held by each such Bank under this Agreement. If neither of the other
Banks has exercised such right of first refusal within such 30 day period, the
Transferring Bank may, subject to the provisions of this Agreement, make the
Transfer for which it has given notice.
(b) The Banks and the Borrower may, from time to time, enter into
written amendments, supplements or modifications hereto for the purpose of
adding provisions to any agreements, instruments or other documents hereunder or
for the purpose of changing in any manner the rights of the Banks or of the
Borrower hereunder, and the Banks may execute and deliver to the Borrower a
written instrument waiving, on such terms and conditions as the Banks may
specify in such instrument, any of the requirements of this Agreement or any
Default or Event of Default and its consequences. In the case of any waiver, the
Borrower and the Banks shall be restored to their former position and rights
under this Agreement, and any Default or Event of Default waived shall be deemed
to be cured and not continuing. However, no waiver of a Default or Event of
Default shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon. No amendment, supplement, modification, or
waiver shall be effective except if in writing and duly executed by both Banks
and the Borrower.
(c) The Borrower's obligations to each Bank are separate and
independent obligations, and each Bank shall be entitled to protect its rights
hereunder and enforce the obligations of the Borrower to it and it shall not be
necessary for any other Bank to be joined as an additional party
23
to any proceeding for such purpose. Nothing contained in this Agreement and
no action taken by the Banks pursuant hereto shall be deemed to constitute
the Banks to be a partnership, an association, a joint venture or any other
kind of entity.
(d) In the event that any date provided herein for any payment by
Borrower shall be a Saturday, Sunday, or legal holiday, such payment date
shall be deemed to be the next Business Day following such Saturday, Sunday
or legal holiday.
(e) All representations and warranties made herein shall survive the
execution and the delivery of the Term Notes or renewals thereof.
(f) Unless otherwise specified, all notices, requests and demands to
be to or upon the respective parties hereto shall be deemed to be effective
only if in writing or if given by facsimile transmission, telegraph or
telex and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made, in the case of a delivered notice, when
delivered by hand, or, in the case of a mailed notice, when deposited in
the mail, postage prepaid, or in the case of telegraphic notice, when
delivered to the telegraph company, or, in the case of telex notice, when
sent, answer back received, or, in the case of a facsimile transmission,
upon acknowledgement of receipt, addressed as follows, or to such other
address as may be hereafter specified by the respective parties hereto and
any future holders of the Term Notes:
Borrower: Marquette Electronics, Inc.
8200 West Tower Avenue
Milwaukee, WI 53223
Attention: Ms. Mary M. Kabacinski
Fax: (414) 355-3790
Banks: M&I Marshall & Ilsley Bank
770 North Water Street
Milwaukee, WI 53202
Attention: Mr. John W. Linnen
Fax: (414) 765-7625
NDB Bank
Corporate Banking Group
One NBD Plaza
Mount Prospect, IL 60056
24
Attention: Mr. Frederick J. Crawford
Fax: (708) 506-7799
Wachovia Bank of Georgia, N.A.
Wachovia Corporate Services
191 Peachtree Street, N.E.
Atlanta, GA 30303
Attention: Central District Loan
Administration Manager
With a copy to:
Wachovia Bank of Georgia, N.A.
Wachovia Corporate Services
70 West Madison Street, Suite 2440
Chicago, IL 60602
Attention: Ms. D. Kelly Long
Fax: (312) 853-0693
; provided that any notice, request or demand upon the Banks pursuant to
Section 1 hereof shall not be effective until received.
(g) Borrower shall (i) pay or reimburse Banks for all of their
reasonable out-of-pocket costs and expenses incurred in connection with the
negotiation, consideration, development, preparation and/or execution of
and any amendment, supplement or modification to, this Agreement, the Term
Notes or any other document prepared in connection herewith (whether or not
any such amendment, supplement or modification is effected or consummated),
and the consummation of the transactions contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of
counsel to the Banks, (ii) pay and reimburse Banks for all of their
reasonable costs and expenses, including, but not limited to, litigation
costs incurred in connection with the enforcement or preservation of any
rights or questions arising under this Agreement, the Term Notes or any
such other document prepared in connection herewith, including, without
limitation, reasonable fees and disbursements of counsel to the Banks, and
(iii) pay, indemnify and hold the Banks 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 taxes, if any, which may
be payable or determined to be payable in connection with the execution and
delivery of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent
25
under or in respect of this Agreement or any such other documents. The
obligations in this Paragraph shall survive repayment of the Term Notes and
all other amounts payable hereunder.
(h) This Agreement, the Term Notes and all other documents
delivered in connection herewith and the rights and obligations of the
parties thereto shall be governed by, and construed and interpreted in
accordance with the internal laws of the State of Wisconsin. Venue for the
settlement of disputes under this Agreement (i) between Borrower and M&I
shall be the United States District Court for the Eastern District of
Wisconsin or the Circuit Court of Milwaukee County, Wisconsin, (ii) between
Borrower and NBD shall be the United States District Court for the Eastern
District of Michigan and (iii) between Borrower and Wachovia shall be the
United States District Court for the Northern District of Georgia. Borrower
consents to the exercise of jurisdiction by these courts and of vesting of
venue therein.
(i) In addition to any of the rights and remedies provided by
law, or any other rights or remedies provided for in this Agreement or any
document delivered in connection herewith, upon the occurrence of any
Event of Default, the Banks are hereby irrevocably authorized, at any time
and from time to time without prior notice to Borrower, any such notice
being expressly waived by Borrower, to set-off, 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 direct or indirect or contingent or matured or
unmatured, at any time held or owing by the Banks to or for the credit of
the account of Borrower, or any part thereof, in such amounts as Banks may
elect, against and on account of the obligations and liabilities of
Borrower to Banks hereunder or under the Term Notes, and claims of every
nature and description of Banks against Borrower, whether arising
hereunder, under any note or otherwise, that the Banks may elect, whether
or not the Banks have made any demand for payment although such
obligations, liabilities and claims may be contingent or unmatured.
(j) If any Bank which has accelerated its Term Note pursuant to
the provisions of Section 6 hereof (a "Benefitted Bank") shall at any time
receive any payment of all or part of its Term Loan, or interest thereon,
(whether voluntarily or involuntarily, by setoff, pursuant to events or
proceedings of the nature referred to in Section 6 here-
26
of, or otherwise) in a greater proportion than any such payment to any
other Bank which has also accelerated its Term Note and is pursuing
enforcement of its Term Note in good faith, if any, in respect of such
other Banks' Term Loans, or interest thereon, such Benefitted Bank shall
purchase for cash from such other Banks such portion of each such other
Bank's Term Loan as shall be necessary to cause such benefitted Bank to
share the excess payment ratably with each of such other Banks; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such benefitted Bank, or any portion of any Term Note which
has been so purchased is thereafter determined by a court of appropriate
jurisdiction to be unenforceable or subject to a valid defense, such
purchase shall be rescinded, and the purchase price returned, to the extent
of such recovery or unenforceability or defense together with such other
Bank's prorata share of interest in respect of that portion of the
purchase price which is returned. The Company agrees that each Bank so
purchasing a portion of another Bank's Term Loan may exercise all rights of
payment (including, without limitation, rights of setoff) with respect to
such portion as fully as if such Bank were the direct holder of such
portion.
(k) Any provision of this Agreement which is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof.
(l) Any term defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the
reference.
(m) This Agreement may be executed in one or more counterparts
which together shall constitute a single agreement.
27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
MARQUETTE ELECTRONICS, INC.
BY: Mary M. Kabacinski
-------------------------------
Mary M. Kabacinski, Vice
President and Treasurer
Attest:
/s/ Gordon W. Petersen Secretary
-------------------------------------
Title
M&I MARSHALL & ILSLEY BANK
By:
-------------------------------
John W. Linen, Vice President
By:
-------------------------------
Brian J. Casper, Vice President
NBD BANK
By:
------------------------------
Fred Crawford, Second Vice
President
WACHOVIA BANK OF GEORGIA, N.A.
By:
-----------------------------
J. Peter Peyton, Senior Vice
President - Group Executive
28