EXHIBIT B-1
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AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
by and among
THOR INDUSTRIES, INC.,
AS BORROWER
with certain of its subsidiaries
as Guarantors
and
BANK ONE, XXXXXX, NA
and
XXXXXX TRUST AND SAVINGS BANK,
BANKS
and
XXXXXX TRUST AND SAVINGS BANK,
AS AGENT
as of December 4, 1992
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Interpretation . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS, REVOLVING CREDIT LOANS . . . . . . 9
Section 2.1. Commitments. . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.2. Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Section 2.3. Procedure for Borrowing. . . . . . . . . . . . . . . . . . .10
Section 2.4. Interest Rate and Payment Dates. . . . . . . . . . . . . . .11
Section 2.5. Computation of Interest and Fees . . . . . . . . . . . . . .11
Section 2.6. Increased Costs. . . . . . . . . . . . . . . . . . . . . . .12
Section 2.7. Illegality; Unavailability of Deposits . . . . . . . . . . .12
Section 2.8. Prepayments; Funding Indemnity . . . . . . . . . . . . . . 12
Section 2.9. Pro Rata Treatment and Payments. . . . . . . . . . . . . . .13
Section 2.10.Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . .13
SECTION 3. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . .13
Section 3.1. Financial Statements . . . . . . . . . . . . . . . . . . . .13
Section 3.2. Corporate Existence. . . . . . . . . . . . . . . . . . . . .13
Section 3.3. Corporate Power. . . . . . . . . . . . . . . . . . . . . . .14
Section 3.4. No Violation of Laws . . . . . . . . . . . . . . . . . . . .14
Section 3.5. No Material Litigation . . . . . . . . . . . . . . . . . . .14
Section 3.6. Federal Regulations. . . . . . . . . . . . . . . . . . . . .15
Section 3.7. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . .15
Section 3.8. Subsidiary Information . . . . . . . . . . . . . . . . . . .15
SECTION 4. CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . . . .15
Section 4.1. Conditions to Initial Loans. . . . . . . . . . . . . . . . .15
Section 4.2. Conditions to All Loans. . . . . . . . . . . . . . . . . . .15
SECTION 5. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . .16
Section 5.1. Financial Statements . . . . . . . . . . . . . . . . . . . .16
Section 5.2. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . .16
Section 5.3. Maintenance of Debt to Worth . . . . . . . . . . . . . . . .17
Section 5.4. New Guarantors . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 6. NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . .17
Section 6.1. Limitation on Indebtedness . . . . . . . . . . . . . . . . .17
Section 6.2. Limitation on Liens. . . . . . . . . . . . . . . . . . . . .17
SECTION 7. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 8. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
(i)
Section 8.l. Appointment. . . . . . . . . . . . . . . . . . . . . . . . .19
Section 8.2. Delegation of Duties . . . . . . . . . . . . . . . . . . . .19
Section 8.3. Exculpatory Provisions . . . . . . . . . . . . . . . . . . .20
Section 8.4. Reliance by Agent. . . . . . . . . . . . . . . . . . . . . .20
Section 8.5. Notice of Default. . . . . . . . . . . . . . . . . . . . . .20
Section 8.6. Non-Reliance on Agent and Other Banks. . . . . . . . . . . .20
Section 8.7. Indemnification. . . . . . . . . . . . . . . . . . . . . . .21
Section 8.8. Agent in Its Individual Capacity . . . . . . . . . . . . . .21
Section 8.9. Successor Agent. . . . . . . . . . . . . . . . . . . . . . .21
SECTION 9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Section 9.1. Amendments and Waivers . . . . . . . . . . . . . . . . . . .22
Section 9.2. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . .22
Section 9.3. No Waiver; Cumulative Remedies . . . . . . . . . . . . . . .22
Section 9.4. Survival of Representations and Warranties . . . . . . . . .23
Section 9.5. Legal Fees, Other Costs and Indemnification. . . . . . . . .23
Section 9.6. Successors and Assigns . . . . . . . . . . . . . . . . . . .23
Section 9.7. Adjustments; Set-off . . . . . . . . . . . . . . . . . . . .23
Section 9.8. Incorporation of Guaranty Provisions . . . . . . . . . . . .24
Section 9.9. Release of Certain Guaranties. . . . . . . . . . . . . . . .24
Section 9.10. Counterparts; Effective Date. . . . . . . . . . . . . . . .24
Section 9.11. Governing Law . . . . . . . . . . . . . . . . . . . . . . .25
Section 9.12. Headings. . . . . . . . . . . . . . . . . . . . . . . . . .25
(ii)
REVOLVING CREDIT AGREEMENT
To each of the Banks' signatory hereto
Ladies and Gentlemen:
The undersigned, Thor Industries, Inc., a Delaware corporation (the
"Borrower"), refers to that certain Credit Agreement dated as of May 29, 1992,
as amended, currently in effect among the Borrower, the Borrower's Subsidiaries,
Bank One Sidney, N.A., as Agent, and the Banks party thereto (the "Original
Credit Agreement"). The Borrower hereby requests that certain amendments be made
to the Original Credit Agreement and for the sake of clarity and convenience
that the Original Credit Agreement be restated in its entirety as so amended.
Each of you is hereinafter referred to as a "Bank," all of you are hereinafter
referred to collectively as the "Banks," and Xxxxxx Trust and Savings Bank in
its capacity as agent for the Banks hereunder is hereinafter referred to as the
"Agent." This Amended and Restated Credit Agreement amends and replaces in its
entirety the Original Credit Agreement, and from the Effective Date all
references made to the Original Credit Agreement in any Loan Document or in any
other document shall, without more, be deemed to refer to this Amended and
Restated Credit Agreement. This Amended and Restated Credit Agreement shall
become effective as of December 4, 1992 (the "Effective Date"), and supersede
all provisions of the Original Credit Agreement as of such date, upon the
execution of this Agreement by each of the parties hereto and the fulfillment of
the conditions precedent contained in Section 4.1(a)-(c) hereof.
SECTION 1. DEFINITIONS
SECTION 1.1. DEFINED TERMS. In addition to the other terms defined herein,
as used in this Agreement:
AFFILIATE means any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with another Person.
ANNUAL FINANCIALS means, as to any fiscal year:
(a) a consolidated balance sheet, income statement and statement of cash
flows (together with a statement of shareholders' equity if not contained in the
foregoing) of Borrower and its consolidated subsidiaries, each together with
supporting notes to the extent required by GAAP or accompanying the accountant's
certification described below, fairly presenting Borrower's and its consolidated
subsidiaries' financial condition at the close of and the results of operations
during such year, which statements shall be prepared in accordance with GAAP and
shall be audited and certified without qualification by Deloitte & Touche or
other independent certified public accountants of nationally recognized standing
reasonably acceptable to the Banks; and
(b) the Officer's Certificate specified under section 5.1 hereof.
BORROWING means the total of Loans of a single type made by the Banks to
the Borrower on a single date and for a single Interest Period. Borrowings are
made ratably from each of the Banks according to their Commitment Percentage.
BUSINESS DAY means a day other than a Saturday, Sunday or other day on
which commercial banks are authorized or required to close in Xxxxxx or
Columbus, Ohio, or Chicago, Illinois and, if the applicable Business Day relates
to the borrowing or payment of a Eurodollar Loan, on which banks are dealing in
United States Dollar deposits in the interbank market in London, England and
Nassau, Bahamas. Periods of days referred to in this Agreement shall be counted
in calendar days unless Business days are expressly prescribed.
COMMITMENT means a Bank's agreement to make Revolving Credit Loans to the
Borrower pursuant to subsection 2.1 hereof in the amount specified on Schedule I
hereof, and Commitments means the aggregate of each Bank's Commitment.
COMMITMENT PERCENTAGE of any Bank shall mean the percentage set opposite
such Bank's name on Schedule I hereto.
COMMITMENT PERIOD means the period from and including the date hereof to
the Termination Date.
CONSOLIDATED LIABILITIES at any date means the total of all accounts which
would be properly classified as liabilities in a consolidated balance sheet of
Borrower and its consolidated subsidiaries at such date prepared in accordance
with GAAP, including, but not limited to, deferred income taxes and capital
lease obligations.
CONSOLIDATED TANGIBLE NET WORTH at any date means the excess, if any, of the
total assets over the total amount of liabilities, deferred credits and minority
interests as the same would appear in a consolidated balance sheet of Borrower
and its consolidated subsidiaries at such date prepared in accordance with GAAP,
consistently applied, less the book value of (a) all intangible assets and (b)
all deferred charges. Both intangible assets and deferred charges are to be
determined in accordance with GAAP.
CONTINGENT OBLIGATION means, as to any Person, any reimbursement
obligations of such Person in respect of undrawn drafts drawn under letters of
credit and any obligation of such Person guaranteeing or in effect guaranteeing
any Indebtedness, leases, dividends or other obligations primarily to pay money
("PRIMARY OBLIGATIONS") of any other Person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not
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contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the
obligee under any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (d) otherwise to assure or hold
harmless the obligee under such primary obligation against loss in respect
thereof; HOWEVER, the term Contingent Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of business.
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.
DEALER REPURCHASE DEBT means as to any Person that Person's unsecured
ordinary course of business Contingent Obligation to purchase from a financier
the inventory of a dealer selling inventory of the referent Person's manufacture
or assembly and sale to the dealer on terms which include the Person's
acquisition simultaneously with its payment of clear, unencumbered ownership of
inventory which is new and saleable as new.
DEFAULT means any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
EURODOLLAR LOAN means a Revolving Credit Loan bearing interest prior to
maturity at the rate specified in Section 2.4(b).
ERISA means the Employee Retirement Income Security Act of 1974, as amended
from time to time.
EVENT OF DEFAULT means any of the events specified in Section 7, provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
EXISTING INDEBTEDNESS with respect to any Person means Indebtedness of such
Person and its Subsidiaries outstanding as of the date of and reflected in the
July 31, 1992, consolidated financials of the Borrower and its consolidated
Subsidiaries.
FLOOR PLAN FINANCING means as to any Person the financing of motor vehicle
chassis to be part of Inventory, work in process, or otherwise held for work,
sale or lease in the ordinary course of business with respect to which the
referent Person's seller or third party financier retains a security interest in
the chassis
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sold, pending the referent Person's subsequent sale in ordinary course of
business.
GAAP means generally accepted accounting principles in the United States of
America as in effect at the time any determination is made or financial
statement is required hereunder as promulgated by the American Institute of
Certified Public Accountants, the Accounting Principles Board, the Financial
Accounting Standards Board or any other body existing from time to time which is
authorized to establish or interpret such principles applied on a consistent
basis throughout any applicable period.
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.
GUARANTY means a guaranty of the indebtedness evidenced by the Notes, this
Agreement or the other Loan Documents, and other indebtedness, executed
previously by the Subsidiaries of Borrower in connection with the closing of the
Original Credit Agreement and in the form of Exhibit B to the Original Credit
Agreement, and not released by Section 9.9 hereof, and any guaranty of such
indebtedness executed by any future Subsidiary of Borrower; GUARANTOR means each
Person executing a Guaranty.
XXXXXX means Xxxxxx Trust and Savings Bank.
INDEBTEDNESS with respect to any Person means any indebtedness, whether or
not contingent, in respect of borrowed money or evidenced by bonds, notes,
debentures or similar instrument or letters of credit (or reimbursement
agreements in respect thereof) or representing the balance deferred and unpaid
of the purchase price of any property (including pursuant to capital leases),
except any such balance that constitutes an accrued expense or a trade payable,
if and to the extent any of the foregoing indebtedness would appear as a
liability upon a balance sheet of such Person prepared on a consolidated basis
in accordance with GAAP, and shall also include, to the extent not otherwise
included, any indebtedness of a third person of the type that would be included
in this definition which is secured by a Lien on the property or assets of or is
guaranteed by such Person.
INTEREST PERIOD means the period commencing on the date a Borrowing of
Eurodollar Loans is made and ending on the date 1, 2, or 3 months thereafter;
PROVIDED, HOWEVER,
(a) the Borrower may not select an Interest Period that extends
beyond the Termination Date;
(b) whenever the last day of any Interest Period would otherwise be a
day that is not a Business Day, the last day of
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such Interest Period shall be extended to the next succeeding Business Day,
provided that if such extension would cause the last day of such Interest
Period to occur in the following calendar month, the last day of such
Interest Period shall be the immediately preceding Business Day; and
(c) a month means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month;
PROVIDED, HOWEVER, that if there is no numerically corresponding day in the
month in which such an Interest Period is to end or if such an Interest
Period begins on the last Business Day of a calendar month, then such
Interest Period shall end on the last Business Day of the calendar month in
which such Interest Period is to end.
INVENTORY of any Person means all of such Person's now existing or
hereafter arising or acquired merchandise, inventory, goods, and other property
held for sale or lease or furnished or to be furnished under contracts of
service, including all raw materials, chassis, trailers, other vehicles, titled
or untitled, engines, air conditioners, plumbing, electronics, furniture and
furnishings, upholstery, flooring, brightwork, work in process, finished goods,
and materials and supplies of any kind, nature or description which are or might
be used in or in connection with such Person's business, and all returns,
repossessions, exchanges and proceeds thereof, wherever located.
LIBOR means the rate, adjusted for maximum regulatory reserve requirements,
at which deposits in U.S. Dollars in an amount and with a maturity corresponding
to the Interest Period for the relevant Eurodollar Loan are offered by the Agent
in the offshore interbank market as of approximately 11:00 a.m. (London time)
two Business Days before the making of such Eurodollar Loan.
LIEN means any mortgage, deed of trust, pledge, hypothecation, assignment,
deposit arrangement, charge, security interest, encumbrance, lien (statutory or
other), or any preference, priority or other security agreement or any
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any lease deemed under the
Uniform Commercial Code, or comparable law of any jurisdiction, to be intended
for security), and the authorized filing by or against a Person of any financing
statement as debtor under the Uniform Commercial Code (or comparable law of any
jurisdiction).
LOAN DOCUMENTS means this Agreement, the Notes, the Guaranties and all
documents delivered by the Borrower or any Guarantor in connection therewith.
MONTHLY FINANCIALS means, as to any fiscal month, each of a consolidated
and consolidating (i) balance sheet as of the last day of such month and (ii)
income statement for such month of Borrower
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and its consolidated subsidiaries and a consolidated statement of cash flows for
such month of Borrower and its consolidated subsidiaries, in each case (x)
unaudited and prepared in accordance with GAAP subject to year end adjustments
and the omission of footnotes and (y) certified in an Officer's Certificate.
OBLIGATIONS means all fees payable hereunder, all obligations of the
Borrower to pay principal or interest on the Revolving Credit Loans and all
other payment obligations of the Borrower or any Guarantor arising under or in
relation to any Loan Document.
OFFICER'S CERTIFICATE as to any Person means a written certificate signed
by the appropriate Responsible Officer(s) of such Person which (a) recites,
certifies and represents (i) the date of the certificate and that all
information given and statements made are as of that date, (ii) the exact
title(s) of such officer and the source of such officer's authority to execute
and deliver the certificate to Agent on behalf of such Person, (iii) that the
certificate is given in connection with this Agreement and constitutes a Loan
Document, (iv) that such officer is familiar with, and has access to, such
Person's business and financial affairs, (v) that such officer has examined the
information given or statements made, or both, in the certificate and certifies
that such information and statements are true and correct based upon such
officer's examination, and (vi) with respect to Subsidiaries that such officer
has examined this Agreement and, as required, the other Loan Documents and that
no Default has occurred during the period of time covered by such certificate;
(b) contains an acknowledgement by such officer that the Agent and Banks will
rely upon the certificate for purposes of making advances or extensions of
credit under this Agreement, acting upon any other request, giving or
withholding of any consent, exercising any right or privilege, or forebearing
from taking of any action, under the Loan Documents; (c) is, as to matters
listed below in subitems (d)(i) and (ii) given by the chief financial officer of
Borrower on behalf of each Borrower and its Subsidiaries in accordance with this
Agreement; and (d) shall further, in the case of:
(i) the Annual Financials, (A) state, with respect to the
consolidating financial statements described in paragraph (a) of the
definition of Annual Financials, that such financial statements are
accurate, complete and fairly present such Person's financial condition and
the results of operations; and (B) set forth, with respect to Borrower, the
calculations required to establish compliance by Borrower with Section 5.3
together with an exhibit attaching the financial statements from which such
calculations were made, and state that no event of default (or any event or
condition which, with the lapse of time, the giving of notice, or the
satisfaction of any other condition, or all of them, could become an event
of
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default) has occurred under any material Contractual Obligation during such
fiscal year of the Borrower; and
(ii) the Monthly Financials, (A) state that such financial statements
are accurate, complete and fairly present such Person's financial condition
and results of operations for such month (subject to year-end adjustments
and footnoted information required under GAAP) and (B) set forth, with
respect to Borrower, the calculations required to establish compliance by
Borrower with Section 5.3 together with an exhibit attaching the financial
statements from which such calculations were made, and state that no event
of default (or any event or condition which, with the lapse of time, the
giving of notice, or the satisfaction of any other condition, or all of
them, could become an event of default) has occurred under any material
Contractual Obligation during such fiscal year of the Borrower.
"OPERATING LEASE" at any date means any lease other than a lease which is
required to be capitalized in accordance with GAAP consistently applied,
provided such lease has, as of the date of determination, a remaining term of 12
months or more, or may at the option of the lessor or lessee be extended for a
term of 12 months or more.
PBGC means the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
PERMITTED INDEBTEDNESS with respect to each of Borrower and Subsidiaries,
as applicable, means:
(a) Indebtedness to Agent and Banks under the Loan Documents;
(b) Existing Indebtedness (to the extent, if any, not covered by any other
clause of this definition);
(c) Floor Plan Financing in ordinary course of business;
(d) Dealer Repurchase Debt in ordinary course of business;
(e) Indebtedness to Xxxxxx in principal amount of $10,000,000 which is
fully secured to Xxxxxx by instruments evidencing obligations of a federal
authority of Canada and which are held by Xxxxxx' agent in Canada;
(f) Capital lease obligations or other Indebtedness of Borrower and
Subsidiaries incurred for the purchase of real or personal property or
businesses that do not exceed, as of any date outstanding, $1,000,000 in
the aggregate if on a basis of other than without recourse;
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(g) Indebtedness under Operating Leases for which total aggregate payments
by all of Borrower and each of its Subsidiaries during any 12-month period
do not exceed $2,500,000 in the aggregate;
(h) Indebtedness of a Borrower or a Subsidiary to Borrower or any other
Subsidiary;
(i) The obligations of a Borrower or Subsidiary under replevin or similar
type bonds obtained in the ordinary course of a Borrower's or Subsidiary's
respective business as presently conducted;
(j) The obligations of a Borrower or a Subsidiary under inventory and
merchandise repurchase agreements with their respective dealers and third
party creditors incurred in the ordinary course of a Borrower's or
Subsidiary's respective business as presently conducted; and
(k) Indebtedness which serves to refund or refinance Existing Indebtedness
(each of such Indebtedness being so incurred, "REFINANCING INDEBTEDNESS");
PROVIDED, that such Refinancing Indebtedness, (i) is subordinated to the
Obligations to at least the same extent as such Indebtedness begin refunded
or refinanced, (ii) bears an, interest rate per annum which does not exceed
the interest rate per annum then payable under such Indebtedness being
refunded or refinanced (calculated in accordance with any formula set forth
in the documents evidencing any such Indebtedness), (iii) has an aggregate
principal amount outstanding which does not exceed the then outstanding
aggregate amount of such Indebtedness being refunded or refinanced plus
customary transaction costs incurred in connection with such refinancing,
and (iv) has, at the time of such refunding or refinancing, a Weighted
Average Life to Maturity greater than the Weighted Average Life to Maturity
of such Indebtedness being refunded or refinanced.
PERMITTED LIENS means (a) Liens granted to Agent or any Bank; (b) Liens
expressly permitted by Agent (upon instruction of the Required Banks) in
writing; (c) Liens granted to warehousemen, mechanics, common carriers and
landlords for the payment of their services or the use of their property that
are not yet due and payable and arise in the ordinary course of business; (d) as
to Inventory, (i) the right granted under Section 2-702 of the UCC to a seller
of unpaid goods to reclaim those goods subject to the provisions set forth in
Section 2-702 of the UCC and (ii) Liens securing and to the extent of the Floor
Plan Financing described in clause (c) of the definition of Permitted
Indebtedness; (e) the security interest in items in favor of a collecting bank
under Section 4-208 of the UCC; (f) Liens securing Existing Indebtedness in
amounts and to the extent secured at the date hereof; (g) Liens securing the
Indebtedness enumerated in clauses (e), (f), (g) and
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(k) of the definition of Permitted Indebtedness; (h) Liens for taxes not yet due
and payable; and (i) liens of judgment creditors to the extent such Liens do not
secure obligations which exceed, as of any date, $1,000,000 in the aggregate or
enforcement thereof is stayed through bonds or insurance without obligations
which create a Default hereunder to the sole satisfaction of the Required Banks
exercised in good faith, and Liens for taxes due and payable, in each case only
if the validity or amount thereof is being contested in good faith by
appropriate and lawful proceedings, promptly initiated and diligently conducted
and as to which Borrower shall have set aside on its books reserves adequate
under GAAP.
PERSON means an individual, a partnership, a corporation, a business trust,
a joint stock company, a trust, an unincorporated association, a joint venture,
a Governmental Authority or any other entity of whatever nature.
PLAN means any pension plan which is covered by Title IV of ERISA and in
respect of which Borrower or a Commonly Controlled Entity is an "employer" as
defined in Section 3(5) of ERISA or an affiliate of an employer as defined in
Section 407(d)(7) of ERISA.
PRIME RATE means the rate of interest per annum announced by Xxxxxx Trust
and Savings Bank, from time to time as its prime commercial rate, with any
change thereto being effective as of the opening of business on the day of the
change (or the beginning of the day if not a Business Day), which Prime Rate is
not necessarily the best rate of interest offered by that bank.
PRIME RATE LOAN means a Revolving Credit Loan bearing interest prior to
maturity at the rate specified in Section 2.4(a).
Reportable Event means any of the events set forth in Section 4043(b) of ERISA
or the regulations thereunder.
REPORTABLE EVENT means any of the events set forth in Section 4043(b) of
ERISA or the regulations thereunder.
REQUIRED BANKS means, at a particular time, Banks which together hold at
least 66 2/3% of the aggregate unpaid principal amount of the Notes as at such
time, or, if no amounts are outstanding under the Notes as at such time, Banks
having not less than 66 2/3% of the aggregate amount of the Commitments as at
such time.
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 any of its property or to which such Person or
any of its property is subject.
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RESPONSIBLE OFFICER means, as to Borrower and any Subsidiary of Borrower,
the Chairman, President or a Senior Vice President of Borrower and that
Subsidiary, respectively, and, with respect to financial matters, a Senior Vice
President or the Treasurer of Borrower and that Subsidiary, respectively.
REVOLVING CREDIT LOANS means the total of all advances by a Bank pursuant
to Section 2 of this Agreement and includes a Prime Rate Loan or Eurodollar
Loan, each of which is a "TYPE" of Loan hereunder.
SINGLE EMPLOYER PLAN means any Plan which is not a Multiemployer Plan.
SUBSIDIARY means, as to any Person, a corporation or other entity of which
more than fifty percent (50%) of the outstanding stock or comparable equity
interests having ordinary voting power (other than stock or such equity interest
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 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, and with
respect to Borrower shall include all Subsidiaries of Subsidiaries of Borrower.
TERMINATION DATE means November 30, 1993.
WEIGHTED AVERAGE LIFE to Maturity means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (a) the then outstanding
principal amount of such Indebtedness into (b) the total of the product obtained
by multiplying (i) the amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal, including payment at
final maturity, in respect thereof, by (ii) the number of years (calculated to
the nearest one-twelfth) which will elapse between such date and the making of
such payment.
SECTION 1.2. INTERPRETATION. The foregoing definitions shall be equally
applicable to both the singular and plural forms of the terms defined. All
references to times of day in this Agreement shall be references to Chicago,
Illinois time unless otherwise specifically provided. Where the character or
amount of any asset or liability or item of income or expense is required to be
determined or any consolidation or other accounting computation is required to
be made for the purposes of this Agreement, the same shall be done in accordance
with GAAP, to the extent applicable, except where such principles are
inconsistent with the specific provisions of this Agreement.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS, REVOLVING CREDIT LOANS
SECTION 2.1. COMMITMENTS. Subject to the terms and conditions of this
Agreement, each Bank severally agrees to make Revolving
10
Credit Loans to the Borrower from time to time during the Commitment Period in
an aggregate principal amount at any one time outstanding not to exceed the
amount set opposite such Bank's name in Schedule I hereto under the caption
"Commitment." As provided in Section 2.3 hereof, the Borrower may elect that
each Borrowing of Revolving Credit Loans be made available by means of either
Prime Rate Loans or Eurodollar Loans. During the Commitment Period and as long
as no Default or Event of Default exists the Borrower may use the Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
SECTION 2.2. NOTES. The Revolving Credit Loans made by each Bank pursuant
hereto shall be evidenced by a promissory note of the Borrower, in the form of
Exhibit A ("Note"), payable to the order of such Bank and evidencing the
obligation of the Borrower to pay the aggregate unpaid principal amount of all
Revolving Credit Loans made by such Bank, with interest thereon as prescribed in
Sections 2.5 and 2.6. Each Bank is hereby authorized to record the date and
amount of each Revolving Credit Loan made by that Bank, and the date and amount
of each payment or prepayment of principal thereof, at its option on a schedule
annexed to and constituting a part of its Note, or on a continuation thereof
which shall be attached thereto and made a part thereof, or on its separate
written or electronic records maintained in ordinary course of business, and any
such recordation shall constitute prima facie evidence of the accuracy of the
information so recorded; however, the failure of the Bank to make any such
recordations shall not affect the obligation of Borrower or any Guarantor to
repay outstanding principal, interest, or any other amount due hereunder or
under the Notes in accordance with the terms hereof and thereof. Each Note shall
(a) be dated as of the date hereof, (b) be stated to mature on the Termination
Date, and (c) bear interest for the period from the date hereof on the unpaid
principal amount thereof from time to time outstanding at the applicable
interest rate per annum determined as provided in Section 2.4 and 2.5. Interest
on each Note shall be payable as specified in Section 2.4.
SECTION 2.3. PROCEDURE FOR BORROWING. Borrower may borrow under the
Commitments during the Commitment Period on any Business Day, PROVIDED that
Borrower gives the Agent telephonic notice (which notice shall be irrevocable
once given and shall be promptly confirmed in writing) (i) by no later than
12:00 noon Chicago time at least one Business Day prior to the date of each
requested Borrowing of Prime Rate Loans and (ii) by no later than 10:00 a.m.
Chicago time on the date at least three Business Days prior to the date of each
requesting Borrowing of Eurodollar Loans. Each such notice from the Borrower
shall specify (A) the amount to be borrowed, (B) the type of Revolving Credit
Loans to comprise such Borrowing, (C) if such Borrowing is to be comprised of
Eurodollar Loans, the Interest Period selected by the Borrower to be applicable
thereto, and (D) the date of the requested Borrowing.
11
Upon receipt of such notice from Borrower the Agent shall promptly notify each
Bank thereof. Subject to the satisfaction of the terms and conditions of this
Agreement, each Bank will make the amount of its Commitment Percentage of each
Borrowing available to the Agent located at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, not later than 10:00 a.m. Chicago time, on the date requested by
said Borrower in funds immediately available to the Agent as the Agent may
direct. The proceeds of all such loans will then promptly be made available to
said Borrower by the Agent at the office of the Agent by crediting the Loan
Account of Borrower on the books of such office of the Agent with said aggregate
of the amount made available to the Agent by the Banks and in like funds as
received by the Agent.
Each Borrowing of Eurodollar Loans shall be in an amount not less than
$1,000,000, or any larger amount that is an integral multiple of $500,000.
SECTION 2.4. INTEREST RATE AND PAYMENT DATES.
(a) Each Prime Rate Loan made by a Bank shall bear interest on the unpaid
principal thereof from the date such Prime Rate Loan is made until maturity
(whether by acceleration or otherwise) at a rate per annum equal to the
Prime Rate in effect from time to time payable on the last Business Day of
each month.
(b) Each Eurodollar Loan made by a Bank shall bear interest on the unpaid
principal amount thereof from the date such Loan is made until maturity
(whether by acceleration or otherwise) at a rate per annum equal to the sum
of the LIBOR applicable to such Loan plus 1.50% per annum, payable on the
last day of its Interest Period and at maturity (whether by acceleration or
otherwise).
(c) If any payment of principal on any Revolving Credit Loan is not made
when due (whether by acceleration or otherwise), such Revolving Credit Loan
shall bear interest from the date such payment was due until paid in full,
payable on demand, at a rate per annum equal to:
(i) with respect to any Prime Rate Loan, the sum of 2% per annum
PLUS the Prime Rate from time to time in effect; and
(ii) with respect to any Eurodollar Loan, the sum of 3 1/2% per
annum PLUS the rate of interest in effect hereon at the time of such
default until the end of the Interest Period applicable thereto and,
thereafter, at a rate per annum equal to the sum of 2% per annum PLUS
the Prime Rate from time to time in effect.
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(d) Each Prime Rate Loan shall mature and become due and payable on the
Termination Date. Each Eurodollar Loan shall mature and become due and
payable on the last day of the Interest Period applicable thereto or, if
earlier, on the Termination Date.
SECTION 2.5. COMPUTATION OF INTEREST AND FEES.
(a) All indebtedness and fees on the Revolving Credit Loans and interest in
respect hereof shall be calculated on the basis of a 360 day year for the actual
days elapsed.
(b) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Banks in the absence of manifest error. Agent shall give Borrower and the
Banks prompt notice of all changes in the Prime Rate.
SECTION 2.6. INCREASED COSTS. If any law or any governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any change in any of the foregoing or in any interpretation thereof or
compliance by any Bank with such:
(i) subjects any Bank to any tax, duty, charge or withholding on or from
payments due from the Borrower (excluding taxation on the overall net
income of such Bank), or changes the basis of taxation of payments to any
Bank in respect of the Eurodollar Loans or other amounts due to such Bank
hereunder; or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirements against assets
of, deposits with or for the account of, or credit extended by, any Bank;
or
(iii) imposes any other condition the result of which is to increase the
cost to any Bank of making, funding or maintaining loans or reduces any
amount receivable by any Bank in connection with loans, or requires any
Bank to make any payment calculated by reference to any amount of loans
held or interest received by such Bank, by an amount deemed material by
such Bank.
then, within 15 days of written demand by such Bank, the Borrower shall pay such
Bank that portion of such increased expense incurred or reduction in any amount
received which such Bank determines is attributable to making, funding or
maintaining the Eurodollar Loans.
SECTION 2.7. ILLEGALITY; UNAVAILABILITY OF DEPOSITS. If any Bank determines
that making a Eurodollar Loan would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, or if any Bank
determines that deposits of
13
a type and maturity appropriate to match fund a requested Eurodollar Loan, as
applicable, are not available to such Bank for the requested Interest Period,
then such Bank shall give notice to the Borrower, whereupon, until such Bank
notifies the Borrower that the circumstances giving rise to such suspension no
longer exist, such Bank's obligation to make Eurodollar Loans shall be
suspended. The Borrower shall prepay on demand the outstanding principal amount
of any such affected Eurodollar Loans, together with all interest accrued
thereon and all other amounts then due and payable to such Bank under this
Agreement.
SECTION 2.8. PREPAYMENTS; FUNDING INDEMNITY. (a) The Borrower shall have
the privilege of prepaying Prime Rate Loans without premium or penalty and in
whole or in part at any time; PROVIDED, HOWEVER, that the Borrower shall have
given prior notice of such prepayment to the Agent no later than 10:30 a.m. on
the date of such prepayment. Such prepayment shall be made by the payment of the
principal amount to be prepaid and accrued interest thereon to the date fixed
for prepayment. No Eurodollar Loan may be voluntarily prepaid prior to its
express maturity date.
(b) In the event any Bank shall incur any loss, cost or expense
(including, without limitation, any loss of profit and any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund or maintain any Eurodollar Loan or the relending
or reinvesting of such deposits or amounts paid or prepaid) as a result of any
payment (whether voluntary or as a result of a demand hereunder) of a Eurodollar
Loan on a date other than the last day of the Interest Period applicable
thereto, then, upon such Bank's demand, the Borrower shall pay such Bank such
amounts as will reimburse such Bank for such loss, cost or expense.
SECTION 2.9. PRO RATA TREATMENT AND PAYMENTS. Each borrowing by Borrower
from the Banks, each payment by Borrower on account of the principal of and
interest on the Notes, each payment by Borrower of fees, and any reduction of
the Commitments of the Banks hereunder shall be made pro rata according to the
Commitment Percentages of the Banks. All payments (including prepayments) to be
made by Borrower on account of principal, interest and fees shall be made
without set-off or counterclaim and shall be made to the Agent on behalf of the
Banks, at the Agent's office located at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, in each case in immediately available funds. The Agent shall
distribute such payments to the Banks promptly upon receipt in like funds as
received. Any such payments not received by the Agent prior to 12:00 noon
Chicago time and not distributed on the date of receipt shall be credited as
paid on the next succeeding Business Day. If any payment hereunder becomes due
and payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal,
14
interest thereon shall be payable at the then applicable rate during such
extension.
SECTION 2.10. USE OF PROCEEDS. The proceeds of the Revolving Credit Loans
made hereunder shall be used by the Borrower for lawful purposes in its
businesses.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement and to make the
Revolving Credit Loans herein provided for, the Borrower hereby covenants,
represents and warrants to the Agent and to each Bank, that:
SECTION 3.1. FINANCIAL STATEMENTS. Borrower has heretofore furnished to
each of the Banks the consolidated balance sheet of Borrower and its
Subsidiaries as of July 31, 1992, and the related consolidated statements of
operations, of stockholders' equity and of changes in financial position for the
fiscal year of Borrower then ended, certified by Deloitte & Touche, independent
public accountants. Such financial statements fairly present the financial
conditions of Borrower and its Subsidiaries as of the dates thereof and the
results of the operations of Borrower and its Subsidiaries for the periods then
ended, subject to year end adjustments and the omission of footnotes, and since
July 31, 1992, there has been no material adverse change in such conditions.
SECTION 3.2. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Borrower and each of
its Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, (b) has the corporate
power and authority to conduct the business in which it is currently engaged,
(c) is not required to be qualified as a foreign corporation under the laws of
any jurisdiction where, if it is not qualified, the failure to so qualify would
have a material adverse effect on the business of Borrower and its Subsidiaries
taken as a whole 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,
have a material adverse effect on the business, operations, property or
financial or other condition of Borrower and its Subsidiaries taken as a whole
and would not materially adversely affect the ability of Borrower and its
Subsidiaries to perform their obligations under this Agreement, the Notes, and
the Loan Documents.
SECTION 3.3. CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Borrower and each Subsidiary of Borrower has the corporate power and authority
to make, deliver and perform the Loan Documents to which it is a party and to
borrow hereunder and has taken all corporate action necessary to be taken by it
to authorize the borrowings on the teens and conditions of this Agreement and
the Notes and to authorize the execution, delivery and performance
15
of this Agreement, the Notes and any other Loan Documents to which it is a
party. No consent, waiver or authorization of, or filing with, any Person
(including without limitation any Governmental Authority), is required to be
made or obtained by Borrower or any Subsidiary of Borrower in connection with
the borrowings hereunder or the execution, delivery, performance, validity or
enforceability of any Loan Document. Each Loan Document has been duly executed
and delivered on behalf of Borrower and each Subsidiary of Borrower and
constitutes a legal, valid and binding obligation of Borrower and each
Subsidiary of Borrower (to the extent a party thereto) enforceable against
Borrower and each Subsidiary of Borrower (to the extent a party thereto) in
accordance with its terms, and none of the foregoing violates any Requirement of
Law or Contractual Obligation of Borrower or any Subsidiary of Borrower and does
not and will not result in, or require, the creation or imposition of any Lien
on any of their properties or revenues pursuant to any Requirement of Law or
Contractual Obligation.
SECTION 3.4. NO VIOLATION OF LAWS. Borrower and each Subsidiary of Borrower
is and will remain in compliance with all Requirements of Law, including those
covering taxes (subject to contest as provided in the definition of Permitted
Liens) and environmental activities and hazardous substances, except to the
extent that all instances of noncompliance, in the aggregate, could not have a
material adverse effect upon Borrower and its Subsidiaries on a consolidated
basis.
SECTION 3.5. NO MATERIAL LITIGATION. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the best knowledge of the Borrower and its Subsidiaries, threatened by or
against Borrower or any of its Subsidiaries or against any of their respective
properties or revenues (a) with respect to any of the Loan Documents, or any of
the transactions contemplated hereby or thereby or (b) which could reasonably be
expected to have a material adverse effect on the business, operations, property
or financial or other condition of Borrower and its Subsidiaries taken as a
whole.
SECTION 3.6. FEDERAL REGULATIONS. No part of the proceeds of any loans
hereunder will be used for "purchasing" or "carrying" "margin stock" as defined
in Regulation U of the Board of Governors of the Federal Reserve System or for
any purpose which violates, or which would be inconsistent with, the provisions
of the Regulations of such Board of Governors.
SECTION 3.7. DISCLOSURE. No representations or warranties made by Borrower
or any of its Subsidiaries in this Agreement, any other Loan Document, or any
other document furnished from time to time in connection herewith (as such other
documents may be supplemented from time to time) contains or will contain any
untrue statement of
16
a material fact or omits or will omit to state any material fact necessary to
make the statements herein or therein not misleading.
SECTION 3.8. SUBSIDIARY INFORMATION. Schedule 2 attached hereto contains
the name (including any other names used within the preceding five years),
principal place of business and all other places of business of Borrower and
each Subsidiary of Borrower. Each such Subsidiary is wholly owned by Borrower or
a Subsidiary of Borrower.
SECTION 4. CONDITIONS PRECEDENT
SECTION 4.1. CONDITIONS TO INITIAL LOANS. The obligation of each Bank to
make Revolving Credit Loans hereunder is subject to the satisfaction of the
following conditions precedent on or prior to the first Borrowing hereunder:
(a) NOTES. The Agent shall have received for the account of each Bank a
Note, each conforming to the requirements hereof and each duly executed and
delivered by a duly authorized officer of Borrower.
(b) CORPORATION PROCEEDINGS OF THE BORROWER. The Agent shall have
received, with a counterpart for each Bank, a copy of the resolutions of the
Board of Directors of Borrower authorizing the execution, delivery and
performance of the Loan Documents to which it is a party and the consummation of
the transactions contemplated hereby.
(c) CORPORATE PROCEEDINGS OF SUBSIDIARIES OF BORROWER. The Agent shall
have received, with a counterpart for each Bank, a copy of the resolutions of
the Board of Directors of each Subsidiary of Borrower authorizing the execution
of the Consent of Guarantors set forth at the end of this Agreement.
SECTION 4.2 CONDITIONS TO ALL LOANS. The obligation of each Bank to make
any loan hereunder, on any date, is subject to the satisfaction of the following
conditions precedent as of the Borrowing Date:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
made in Section 3 shall be true and correct in all material respects on and as
of the date of such loan as if made on and as of such date unless specifically
stated to relate to a specific earlier date.
(b) NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of Default shall
have occurred and be continuing on such date or after giving effect to the loan
to be made on such date.
Each borrowing by the Borrower under this Agreement shall constitute a
representation and warranty by the Borrower as of the date of such borrowing
that the conditions contained in the
17
foregoing paragraphs (a) and (b) of this Section 4.3 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, from the date hereof and so long as any
Commitment remains in effect, any Note remains outstanding and unpaid or any
other Obligation is owing to any Bank or the Agent hereunder, the Borrower
shall:
SECTION 5.1. FINANCIAL STATEMENTS. Furnish to each Bank:
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of Borrower, a copy of the Annual Financials; and
(b) as soon as available, but in any event not later than 45 days after
the end of each fiscal month, (i) the Monthly Financials;
(c) concurrently with the delivery of the financial statements referred to
in sections 5.1(a) and (b), the appropriate Officer's Certificate;
(d) promptly upon receipt thereof, copies of all final reports submitted
to Borrower by independent certified public accountants in connection with each
annual, interim or special audit of the books of the Borrower or any of its
Subsidiaries made by such accountants, including, without limitation, any final
comment letter submitted by such accountants to management in connection with
their annual audit; and
(e) on reasonable notice to Borrower, such additional financial and other
information as any Bank may from time to time reasonably request, including,
without limitation, a monthly aging schedule of Borrower's and its Subsidiaries'
accounts payable and accounts receivable.
SECTION 5.2. NOTICES. Promptly give notice to the Agent and each Bank:
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any Contractual
Obligation that would have a material adverse effect on Borrower or on Borrower
and its Subsidiaries taken as a whole or (ii) litigation, investigation or
proceeding which may exist at any time between Borrower or any of its
Subsidiaries and any Governmental Authority or other Person, which, if adversely
determined, would have a material adverse effect on the business, operations,
property or financial or other condition of Borrower or of Borrower and its
Subsidiaries taken as a whole;
18
(c) of a material adverse change in the business, operations, property or
financial or other condition of Borrower or any of its Subsidiaries.
Each notice pursuant to this section 5.2 shall be accompanied by a statement of
the chief executive officer or chief financial officer or other Responsible
Officer of Borrower setting forth details of the occurrence referred to therein
and stating what action Borrower proposes to take with respect thereto.
SECTION 5.3. MAINTENANCE OF DEBT TO WORTH. Maintain, as of the end of each
fiscal month and as of the end of each fiscal year, the ratio of Consolidated
Liabilities to Consolidated Tangible Net Worth not in excess of 2.0 to 1.0.
SECTION 5.4. NEW GUARANTORS. Promptly upon creating or acquiring any
Subsidiary cause such Subsidiary to become a Guarantor hereunder.
SECTION 6. NEGATIVE COVENANTS
Borrower hereby agrees that, from the date hereof and so long as any
Commitment remains in effect, any Note remains outstanding and unpaid or any
other Obligation is owing to any Bank or the Agent hereunder, Borrower shall
not, nor shall it permit any of its Subsidiaries to, directly or indirectly:
SECTION 6.1. LIMITATION ON INDEBTEDNESS. Create, incur, assume or suffer to
exist any Indebtedness except Permitted Indebtedness.
SECTION 6.2. LIMITATION ON LIENS. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except Permitted Liens.
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(1) Borrower or any Guarantor shall fail to pay any principal of any Note
when due or Borrower shall fail to pay any interest on any Note or any fee or
other amount (including without limitation reimbursement obligations) payable
hereunder, within five days after any such amount becomes due; or
(2) Borrower or any Subsidiary of Borrower (a) shall fail to deliver or
cause to be delivered the information, notices or other items specified in or
satisfy any of its covenants under Sections 5.1 or 5.2 within five days of the
date due hereunder or, as appropriate, request by the Agent seasonably and in
good faith, or (b) shall default in the observance or performance of any
covenant
19
or agreement contained in Section 5.3 or Section 6, which default remains
uncured for five days; or
(3) any representation or warranty made or deemed made by Borrower or any
Subsidiary of Borrower herein or in any other Loan Document or which is
contained in any certificate, document or financial or other statement or other
Loan Document furnished at any time under or in connection herewith or
therewith, shall prove to have been incorrect in any material respect on or as
of the date made or deemed made; or
(4) any representation or warranty or covenant made in section 3 (except
section 3.1) shall become incorrect in any material respect and remain incorrect
30 days after Borrower receives notice thereof; or
(5) either Borrower or any Subsidiary of Borrower (a) shall default in the
observance or performance of any covenant or agreement contained in section 5
hereof and not specified in paragraph (1) or (2) above or (b) shall default in
the observance or performance of any other covenant or agreement contained
herein, in each instance which default shall remain unremedied 30 days after
Borrower receives notice of such default; or
(6) Borrower or any of its Subsidiaries shall (a) default in any payment
of principal of or interest on any Indebtedness (other than the Notes), the
aggregate principal amount then outstanding of which exceeds $1,000,000 beyond
the period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created; or (b) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness 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 to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity; or
(7) (a) Borrower or any Guarantor shall commence any case, proceeding or
other action (i) under the Bankruptcy Code or 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
(ii) seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its assets, or Borrower or
any Guarantor shall make a general assignment for the benefit of its creditors;
or (b) there shall be commenced against Borrower or any Guarantor
20
any case, proceeding or other action of a nature referred to in clause (a) above
which (i) results in the entry of an order for relief or the appointment of any
such official or (ii) remains undismissed, undischarged or unbonded for a period
of 60 days; or (c) there shall be commenced against Borrower or any Guarantor
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 (d) Borrower or any
Guarantor 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 (a), (b) or
(c) above; or (e) Borrower or any Guarantor shall generally not, or shall be
unable to, or shall admit in writing it inability to, pay its debts as they
become due; or
(8) any of the Guaranties shall cease for any reason to be in full force
and effect in accordance with its terms or any party thereto shall so assert in
writing;
then, and in any such event, (a) if such event is an Event of Default specified
in paragraph (7) above, automatically the Commitments, if still outstanding,
shall immediately terminate and the loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement, the Notes and the
Loan Documents shall immediately become due and payable, and (b) if such event
is any other Event of Default, either or both of the following actions may be
taken: (i) the Agent may, with the consent of the Required Banks, or upon the
request of the Required Banks, the Agent shall, by notice to the Borrower,
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) the Agent may, with the consent of the
Required Banks, or upon the request of the Required Banks, the Agent shall, by
notice of default to the Borrower, declare the loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the Notes
or the other Loan Documents to be due and payable forthwith, in which case other
than as expressly provided above in this section, presentment, demand, protest
and all other notices of any kind are hereby expressly waived.
SECTION 8. THE AGENT
SECTION 8.1. APPOINTMENT. Each Bank hereby designates and appoints Xxxxxx
Trust and Savings Bank as the Agent of such Bank under each Loan Document and
each Bank hereby authorizes Xxxxxx Trust and Savings Bank, as the Agent for such
Bank, to take such action on its behalf under the provisions of this Agreement,
the Notes and each Loan Document and to exercise such powers and perform such
duties as are expressly delegated to the Agent by the terms of this Agreement,
each Loan Document and the Notes, together
21
with such other powers (including without limitation the power to make
disbursements to protect the rights of the Banks) as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in any Loan
Document, the Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Bank and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into any Loan Document, or otherwise exist against the
Agent.
SECTION 8.2. DELEGATION OF DUTIES. The Agent may execute any of its duties
under the Loan 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.
SECTION 8.3. 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 with any Loan Document (except for its or such
Person's own gross negligence or willful misconduct), or (ii) responsible in any
manner to any of the Banks for any recitals, statements, representations or
warranties made by Borrower or any of its Subsidiaries or any officer thereof or
in any certificate, report, statement referred to or provided for in, or
received by the Agent under or in connection with, any Loan Document, or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement, the Notes or any other Loan Document or for any failure of
Borrower or any of its Subsidiaries to perform their obligations under any Loan
Document. The Agent shall not be under any obligation to any Bank to ascertain
or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, any Loan Document or to inspect the properties,
books or records of Borrower or any of its Subsidiaries.
SECTION 8.4. RELIANCE BY AGENT. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Agent. The Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Agent. The Agent shall be fully justified in failing or refusing
to take any action under any Loan Document unless it shall first receive such
advice or concurrence of the Required Banks as it deems appropriate or it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of
22
taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under any Loan Document
in accordance with a request of the Required Banks, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Banks and all future holders of the Notes.
SECTION 8.5. 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 unless the Agent has received notice from a Bank or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notices is a "notice of default." In the event that the Agent
receives such a notice, the Agent shall give notice thereof to the Banks. The
Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Banks; however, unless and until
the Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Banks.
SECTION 8.6. NON-RELIANCE ON AGENT AND OTHER BANKS. Each Bank 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 hereafter taken, including any
review of the affairs of the Borrower or any of its Subsidiaries, shall be
deemed to constitute any representation or warranty by the Agent to any Bank.
Each Bank represents to the Agent that it has, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and its Subsidiaries and made its
own decision to make its loans hereunder and enter into this Agreement and the
agreements contemplated hereby. Each Bank also represents that it will,
independently and without reliance upon the Agent or any other Bank, 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 Agreement and the agreements contemplated hereby,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of Borrower and its Subsidiaries. Except for notices, reports
and other documents expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Borrower and
its Subsidiaries which may come into the possession of the
23
Agent or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
SECTION 8.7. INDEMNIFICATION. The Banks agree to indemnify the Agent in its
capacity as such (to the extent not reimbursed by Borrower and its Subsidiaries
and without limiting the obligation of Borrower and its Subsidiaries to do so),
ratably according to their respective Commitment Percentages, 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 payment
of the Notes) be imposed on, incurred by or asserted against the Agent in any
way relating to or arising out of any Loan Documents or the transactions
contemplated thereby or any action taken or omitted by the Agent under or in
connection with any of the foregoing; however no Bank shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from the Agent's gross negligence or willful misconduct. The agreements
in this section 8 shall survive the payment of the Notes and all other amounts
payable hereunder.
SECTION 8.8. 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 Borrower and its Subsidiaries as though the Agent were not the
Agent hereunder. With respect to loans made or renewed by it and any Note issued
to it, the Agent shall have the same duties, rights and powers under this
Agreement as any Bank and may exercise the same as thought it were not the
Agent, and the terms "Bank" and "Banks" shall include the Agent in its
individual capacity.
SECTION 8.9. SUCCESSOR AGENT. The Agent may resign as Agent upon 30 days'
notice to the Banks and to the Borrower. If the Agent shall give such notice
under this Agreement, then the Required Banks during such 30 day period shall
appoint from among the Banks a successor agent for the Banks which successor
agent shall be approved by the Borrower (and if the Required Banks and the
Borrower cannot agree on a successor agent, the Agent at the end of such 30 day
period shall appoint such successor agent from among the Banks), whereupon such
successor agent shall succeed to the rights, powers and duties of the Agent, and
the term "Agent" shall mean such successor agent effective upon its appointment,
and the former Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or any
of the parties to this Agreement or any holders of the Notes. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Section 8 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.
24
SECTION 9. MISCELLANEOUS
SECTION 9.1. AMENDMENTS AND WAIVERS. No provision of any Loan Document may
be amended, otherwise modified or waived except in a writing signed by the
Borrower and each Bank or, in the case of a waiver, by the party or parties
bound thereby.
SECTION 9.2. NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing or by telecopy or
telex and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made when delivered by hand, or when deposited in the mail,
certified or registered mail, postage prepaid or, in the case of telex notice,
when sent, answerback received, addressed as follows in the case the Borrower
and the Agent, and as set forth below the signature lines in the case of the
Banks' parties hereto, or to such address or other address as may be hereafter
notified by the respective parties hereto and any future holders of the Notes:
The Borrower or
any Guarantor: Thor Industries, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxx Xxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
The Agent: Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
provided that any notice, request or demand to or upon the Agent shall not be
effective until received.
SECTION 9.3. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, 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.
SECTION 9.4. 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 Agreement and the Notes.
SECTION 9.5. LEGAL FEES. OTHER COSTS AND INDEMNIFICATION. The Borrower
agrees to pay the reasonable fees and disbursements of
25
Messrs. Xxxxxxx and Xxxxxx, counsel to the Agent, in connection with the
preparation and execution of the Loan Documents, and any amendment, waiver or
consent related thereto, whether or not the transactions contemplated herein are
consummated. The Borrower further agrees to indemnify each Bank, the Agent, and
any security trustee and their respective directors, officers and employees,
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all expenses of litigation or
preparation therefor, whether or not the indemnified Person is a party thereto)
which any of them may pay or incur arising out of or relating to any Loan
Document or any of the transactions contemplated thereby or the direct or
indirect application or proposed application of the proceeds of any Revolving
Credit Loan, other than those which arise from the gross negligence or willful
misconduct of the party claiming indemnification. The Borrower, upon demand by
the Agent or a Bank at any time, shall reimburse the Agent or Bank for any legal
or other expenses incurred in connection with investigating or defending against
any of the foregoing except if the same is directly due to the gross negligence
or willful misconduct of the party to be indemnified.
SECTION 9.6. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the Borrower, the Banks, 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 Agreement without the prior written consent of each Bank.
SECTION 9.7. ADJUSTMENTS; SET-OFF.
(a) If any Bank (a "BENEFITED BANK") shall at any time receive any payment
of all or part of its loans, or interest thereon, or receive any payment of all
or part of its loans, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in clause (7) of section 7, or otherwise)
in a greater proportion than any such payment to and collateral received by any
other Bank in respect of such other Bank's loans, or interest thereon, such
benefited Bank shall purchase for cash from each such other Bank such portion of
each such other Bank's loan. or shall provide each such other Bank with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such benefited Bank to share the excess payment or benefits of such
collateral or proceeds ratably with each such other Bank; HOWEVER, if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefited Bank, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery but without interest (unless
the benefited Bank is required to pay interest on such excess payments or
benefits to the Person recovering such payment or benefit). The Borrower agrees
that each
26
Bank so purchasing a portion of another Bank's loan may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided by law,
upon the occurrence of an Event of Default and acceleration of the obligations
owing in connection with this Agreement each Bank shall have the right, without
prior notice to the Borrower, any such notice being expressly waived by Borrower
to the extent permitted by applicable law, to set off and apply against any
indebtedness, whether matured or unmatured, of Borrower or any Subsidiary of
Borrower to such Bank, any amount held by or owing from such Bank to or for the
credit or the account of Borrower or any Subsidiary of Borrower at, or at any
time after, the happening of any of the above mentioned events, and the
aforesaid right of set-off may be exercised by such Bank against Borrower or any
Subsidiary of Borrower or against any trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver, custodian or
execution, judgment or attachment creditor of Borrower or any Subsidiary of
Borrower, or against anyone else claiming through or against Borrower or any
Subsidiary of Borrower or such trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, receiver, custodian or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
setoff shall not have been exercised by such Bank prior to the making, filing or
issuance of, or service upon such Bank, or of notice of, any such petition,
assignment for the benefit of creditors; appointment or application for the
appointment of a receiver; or issuance of execution, subpoena, order or warrant.
Each Bank agrees promptly to notify Borrower and the Agent after any such set
off and application made by such Bank, provided that the failure to give such
notice shall not affect the validity of such set off and application.
SECTION 9.8. INCORPORATION OF GUARANTY PROVISIONS. Without limiting any
more general incorporation of any Loan Documents, the provisions of paragraphs
6, 8 and 9 (together with the definitions of any defined terms used in those
paragraphs) of the Guaranties are incorporated herein, substituting herein the
words "Borrower" and "this Agreement," respectively, for the words "the
undersigned" and "this Guaranty" therein.
SECTION 9.9. RELEASE OF CERTAIN GUARANTIES. The Banks hereby release
Xxxxxxxx Corp., Haul-Away, Inc., Airstream Venture Corporation, Thor Investment
Company, and Thor Tech, Inc. from their obligations under their respective
Guaranties and agrees they need not be Guarantors.
SECTION 9.10. COUNTERPARTS; EFFECTIVE DATE. This Agreement may be executed
by one or more of the parties to this Agreement on any number of separate
counterparts and all of said counterparts taken
27
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged only with the
Borrower and the Agent.
SECTION 9.11. GOVERNING LAW. This Agreement, the Notes and the rights and
obligations of the parties under this Agreement, the Notes, and the other Loan
Documents (other than the Guaranties which by their terms are governed by the
laws of the State of Ohio) shall be governed by, and construed and interpreted
in accordance with, the local laws of the State of Illinois, except and only to
the extent precluded by other laws of mandatory application.
SECTION 9.12. HEADINGS. The headings of the Sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part hereof.
AS A SPECIFICALLY BARGAINED INDUCEMENT FOR BANKS TO ENTER INTO THIS
AGREEMENT AND EXTEND CREDIT TO BORROWER, EACH OF BORROWER, GUARANTORS AND BANKS
WAIVE TRIAL BY JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING IN
RESPECT OF OR ARISING OUT OF THIS AGREEMENT AND THE CONDUCT OF THE RELATIONSHIP
BETWEEN BANKS, BORROWER AND GUARANTORS.
Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall be a contract between us for the purposes hereinabove set forth.
THOR INDUSTRIES, INC.
By:
-------------------------------------
Title:
Accepted and Agreed to as of the day and year last above written.
XXXXXX TRUST AND SAVINGS BANK, in its
individual capacity as a Bank and as
Agent
By:
-------------------------------------
Title:
Address: 000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
28
BANK ONE, SIDNEY, NA
By:
-------------------------------------
Title:
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
29
CONSENT OF GUARANTORS
The undersigned, each a Person executing and delivering a Guaranty (as
defined in the hereinafter defined Agreement) to the Agent under the Original
Credit Agreement, each jointly and severally hereby acknowledges prior notice
of, consents to and approves the foregoing Amended and Restated Revolving Credit
Agreement among Thor Industries, Inc., Xxxxxx Trust and Savings Bank, Bank One,
Sidney, NA, and Xxxxxx Trust and Savings Bank, as Agent (the "Agreement"),
agrees that its Guaranty shall continue in full force and effect and further
agrees that the liabilities and indebtedness created or evidenced by the
foregoing Agreement and the other Loan Documents defined therein shall be a part
of the "Obligations" as defined in the Guaranties, constitutes a Financing and
Security Agreement under the terms of its Guaranty, and further agrees and
acknowledges this consent is not required under the terms of its Guaranty and
that the execution hereof shall not be construed to require the undersigned's
consent to any future amendment, modification, or waiver of any term of the
Agreement except as otherwise provided in said Guaranty. While each Guaranty was
originally delivered in duplicate originals to Bank One, Sidney, N.A., as Agent
under the Original Credit Agreement, for delivery to each Bank, each Guarantor
acknowledges that each Guaranty runs in favor of each Bank under the Credit
Agreement and is enforceable by each Bank individually or both Banks acting
jointly.
AIRSTREAM, INC. CITAIR, INC.
By: By:
---------------------------- --------------------------------
Title: Title:
------------------------- -----------------------------
THOR INDUSTRIES OF PENNSYLVANIA EBC, INC.,
D/B/A ELDORADO BUS
By: By:
---------------------------- --------------------------------
Title: Title:
------------------------- -----------------------------
DUTCHMEN MANUFACTURING, INC. THOR INDUSTRIES WEST, INC.
By: By:
---------------------------- --------------------------------
Title: Title:
------------------------- -----------------------------
30
NCC ACQUISITION, INC., FOUR WINDS INTERNATIONAL
D/B/A ELDORADO NATIONAL CORPORATION (formerly known as Thor
Acquisition Corp.)
By: By:
---------------------------- --------------------------------
Title: Title:
------------------------- -----------------------------
31
SCHEDULE 1
COMMITMENT OF THE BANKS
Commitment/%
Bank One, Xxxxxx, NA $10,000,000/50%
Xxxxxx Trust and Savings Bank $10,000,000/50%
TOTALS $20,000,000/100%
32
SCHEDULE 2
THOR INDUSTRIES, INC.
CORPORATE STRUCTURE
NAME(S) OWNERSHIP PLACE OF BUSINESS
------- --------- -----------------
Thor Industries, Inc.- Parent Corporation 000 Xxxx Xxxx Xx.
Xxxxxxxx corporation Xxxxxxx Xxxxxx, XX 00000
NAME OF SUBSIDIARY WHOLLY OWNED SUBSIDIARIES ADDRESS
------------------ ------------------------- -------
Airstream, Inc. Wholly owned subsidiary of 000 Xxxx Xxxx Xxxxxx
Xxxxxx corporation Thor Industries, Inc. Xxxxxxx Xxxxxx, XX 00000
Xxxxxxxx Corp. Ohio Wholly owned subsidiary of 000 Xxxx Xxxx Xxxxxx
corporation Airstream, Inc. Xxxxxxx Xxxxxx, XX 00000
Haul-Away, Inc. Ohio Wholly owned subsidiary of 000 Xxxx Xxxx Xx.
corporation Airstream. Inc. Xxxxxxx Xxxxxx, XX 00000
Airstream Venture Wholly owned subsidiary of 000 Xxxx Xxxx Xx.
corporation Airstream, Inc. Xxxxxxx Xxxxxx, XX 00000
Delaware corporation
*Thor Industries Wholly owned subsidiary of Road #3, Box 38,
Pennsylvania corp. Thor Industries, Inc. Pennsylvania, Inc.
X. Xxxxxxxx
Xxxxxxxxxx, XX 00000
Citair, Inc. Wholly owned subsidiary of 00 X. Xxxxxxxx Xxxx
Xxxxxxxxxxxx corp. Thor Industries, Inc. Xxxxxxxxxx, XX 00000
DIVISION:
General Coach - Hensall, Ontario X.X. Xxx 00, 00 Xxxx Xx.
Xxxxxxx, Xxxxxxx
Xxxxxx NOM lX0
General Coach - Oliver, British Columbia X.X. Xxx 000
Xxxxx Xx., Xxxx
Xxxxxx, X.X.
Xxxxxx VOH IT0
Dutchmen Wholly owned subsidiary of 000 Xxxxxx Xxxxxx Inc.
Manufacturing, Thor Industries, Inc. Xxxxxx, XX 00000
Delaware corporation
EBC, Inc., Edlorado Wholly owned subsidiary of 000 Xxxxxx X, Xxx 0000
Xxx Xxxxxx Thor Industries, Inc.
corporation
----------
* Formerly (before 06/28/89) Middleburg, Inc.
33
NAME(S) OWNERSHIP PLACE OF BUSINESS
------- --------- -----------------
NCC Acquisition, Wholly owned subsidiary of 00000 Xxxxxxxx Xxx
Inc. Thor Industries, Inc. Xxxxx, XX 00000
dba/ElDorado
National
California
corporation
Thor Industries Wholly owned subsidiary of 0000 Xxxxxxxxx
Xxxx, Xxxxxxxxxx Thor Industries, Inc. Xxxxxxx, XX 00000
corporation
Thor Investment Wholly owned subsidiary of Delaware Trust
Company Delaware Thor Industries, Inc. Building 2nd Fl.
corporation 000 Xxxxxx Xx.
Xxxxxxxxxx, XX 00000-0000
Thor Tech, Inc. Wholly owned subsidiary of Suite 800
Nevada corporation Thor Industries, Inc. 000 X. Xxxxxx Xx.
Xxx Xxxxx, XX 00000-0000
Four Winds Wholly owned subsidiary of 000 Xxxxxx Xxxx
Xxxxxxxxxxxxx Xxxx Industries, Inc. X.X. Xxx 0000
Xxxxxxxxxxx Xxxxxxx, XX 00000-0000
(formerly
known as Thor
Acquisition
corporation Delaware
Corp.)
34
EXHIBIT A
NOTE
December 4, 1992
FOR VALUE RECEIVED, the undersigned, Thor Industries, Inc., a Delaware
corporation (the "Borrower"), promises to pay to the order of _______________
the "Bank") on the Termination Date of the hereinafter defined Credit Agreement
at the principal office of Xxxxxx Trust and Savings Bank in Chicago, Illinois,
in immediately available funds, the principal sum of ________________ Dollars
($_____________) or, if less, the aggregate unpaid principal amount of all
Revolving Credit Loans made by the Bank to the Borrower under its Commitment
pursuant to the Credit Agreement and with each Revolving Credit Loan to mature
and become payable on the Termination Date, or, if earlier, in the case of
Eurodollar Loans on the last day of the Interest Period applicable thereto, but
in no event later than the Termination Date, together with interest on the
principal amount of each Revolving Credit Loan from time to time outstanding
hereunder at the rates, and payable in the manner and on the dates, specified in
the Credit Agreement.
The Bank shall record on its books and records or on a schedule attached to
this Note, which is a part hereof, each Loan made by it to the Borrower pursuant
to its Commitment, together with all payments of principal and interest and the
principal balances from time to time outstanding hereon, whether the Revolving
Credit Loan is a Prime Rate Loan or a Eurodollar Loan and in the case of a
Eurodollar Loan the interest rate and Interest Period applicable thereto,
provided that prior to the transfer of this Note all such amounts shall be
recorded on a schedule attached to this Note. The records thereof, whether shown
on such books and records or on the schedule to this Note, shall be PRIMA FACIE
evidence of the same, provided, however, that the failure of the Bank to record
any of the foregoing or any error if any such records shall not limit or
otherwise affect the obligation of the Borrower to repay all Loans made to it
pursuant to the Credit Agreement together with accrued interest thereon.
This Note is one of the Notes referred to in the Amended and Restated
Credit Agreement dated as of December 4, 1992 between the Borrower, Xxxxxx Trust
and Savings Bank, as Agent, and others (the "CREDIT AGREEMENT"), and this Note
and the holder hereof are entitled to all the benefits provided for thereby or
referred to therein, to which Credit Agreement reference is hereby made for a
statement thereof. All defined terms used in this Note, except terms otherwise
defined herein, shall have the same meaning as in the Credit Agreement. This
Note shall be governed by and construed in accordance with the internal laws of
the State of Illinois.
Prepayments may be made hereon and this Note may be declared due prior to
the expressed maturity hereof, all in the events, on
35
the terms and in the manner as provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
THOR INDUSTRIES, INC.
By:
------------------------------
Its:
-----------------------------
36
CONSENT OF GUARANTORS
The undersigned, each a Person executing and delivering a Guaranty (as
defined in the hereinafter defined Agreement) to the Agent under the Original
Credit Agreement, each jointly and severally hereby acknowledges prior notice
of, consents to and approves the foregoing Amended and Restated Revolving Credit
Agreement among Thor Industries, Inc., Xxxxxx Trust and Savings Bank, Bank One,
Sidney, NA, and Xxxxxx Trust and Savings Bank, as Agent (the "Agreement"),
agrees that its Guaranty shall continue in full force and effect and further
agrees that the liabilities and indebtedness created or evidenced by the
foregoing Agreement and the other Loan Documents defined therein shall be a part
of the "Obligations" as defined in the Guaranties, constitutes a Financing and
Security Agreement under the terms of its Guaranty, and further agrees and
acknowledges this consent is not required under the terms of its Guaranty and
that the execution hereof shall not be construed to require the undersigned's
consent to any future amendment, modification, or waiver of any term of the
Agreement except as otherwise provided in said Guaranty. While each Guaranty was
originally delivered in duplicate originals to Bank One, Sidney, N.A., as Agent
under the Original Credit Agreement, for delivery to each Bank, each Guarantor
acknowledges that each Guaranty runs in favor of each Bank under the Credit
Agreement and is enforceable by each Bank individually or both Banks acting
jointly.
AIRSTREAM, INC. CITAIR, INC.
By: By:
---------------------------- --------------------------------
Title: Title:
------------------------- -----------------------------
THOR INDUSTRIES OF PENNSYLVANIA EBC, INC.,
D/B/A ELDORADO BUS
By: By:
---------------------------- --------------------------------
Title: Title:
------------------------- -----------------------------
DUTCHMEN MANUFACTURING, INC. THOR INDUSTRIES WEST, INC.
By: By:
---------------------------- --------------------------------
Title: Title:
------------------------- -----------------------------
37
NCC ACQUISITION, INC., FOUR WINDS INTERNATIONAL D/B/A ELDORADO
NATIONAL (formerly known as Thor
CORPORATION Acquisition Corp.)
By: By:
---------------------------- --------------------------------
Title: Title:
------------------------- -----------------------------
38
EXHIBIT A
NOTE
$10,000,000 December 4, 1992
FOR VALUE RECEIVED, the undersigned, Thor Industries, Inc., a Delaware
corporation (the "BORROWER"), promises to pay to the order of Xxxxxx Trust and
Savings Bank (the "Bank") on the Termination Date of the hereinafter defined
Credit Agreement at the principal office of Xxxxxx Trust and Savings Bank in
Chicago, Illinois, in immediately available funds, the principal sum of Ten
Million Dollars ($10,000,000) or, if less, the aggregate unpaid principal amount
of all Revolving Credit Loans made by the Bank to the Borrower under its
Commitment pursuant to the Credit Agreement and with each Revolving Credit Loan
to mature and become payable on the Termination Date, or, if earlier, in the
case of Eurodollar Loans on the last day of the Interest Period applicable
thereto, but in no event later than the Termination Date, together with interest
on the principal amount of each Revolving Credit Loan from time to time
outstanding hereunder at the rates, and payable in the manner and on the dates,
specified in the Credit Agreement.
The Bank shall record on its books and records or on a schedule attached to
this Note, which is a part hereof, each Loan made by it to the Borrower pursuant
to its Commitment, together with all payments of principal and interest and the
principal balances from time to time outstanding hereon, whether the Revolving
Credit Loan is a Prime Rate Loan or a Eurodollar Loan and in the case of a
Eurodollar Loan the interest rate and Interest Period applicable thereto,
provided that prior to the transfer of this Note all such amounts shall be
recorded on a schedule attached to this Note. The records thereof, whether shown
on such books and records or on the schedule to this Note, shall be PRIMA FACIE
evidence of the same, provided, however, that the failure of the Bank to record
any of the foregoing or any error if any such records shall not limit or
otherwise affect the obligation of the Borrower to repay all Loans made to it
pursuant to the Credit Agreement together with accrued interest thereon.
This Note is one of the Notes referred to in the Amended and Restated
Credit Agreement dated as of December 4, 1992 between the Borrower, Xxxxxx Trust
and Savings Bank, as Agent, and others (the "CREDIT AGREEMENT"), and this Note
and the holder hereof are entitled to all the benefits provided for thereby or
referred to therein, to which Credit Agreement reference is hereby made for a
statement thereof. All defined terms used in this Note, except terms otherwise
defined herein, shall have the same meaning as in the Credit Agreement. This
Note shall be governed by and construed in accordance with the internal laws of
the State of Illinois.
Prepayments may be made hereon and this Note may be declared due prior to
the expressed maturity hereof, all in the events, on
39
the terms and in the manner as provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
THOR INDUSTRIES, INC
By:
--------------------------------
Its:
-------------------------------
40
