EXHIBIT 10.6 INDUSTRIAL DEVELOPMENT REVENUE BONDS, CREDIT AGREEMENT DATED FEBRUARY 28, 2007

1.02  Other Terms.  Any capitalized terms used herein which are not defined shall have the meaning given such terms in the Bond Agreement.  Terms defined in other Sections of this Agreement shall have the meanings set forth therein.

2.01  Purchase of the Bonds.  On the Closing Date, the Issuer will issue the Bonds and lend the Loan to the Borrower and the Borrower will borrow the Loan from the Issuer, upon the terms and conditions set forth in the Bond Documents the amount (not to exceed) $4,000,000 of Bond Proceeds and cause such Bond Proceeds to be credited to the Project Fund for disbursement by the Trustee in accordance with Sections 3.01 and 4.02 of the Bond Agreement.  The Loan shall be evidenced by the Promissory Note.  The outstanding principal amount of the Loan shall at all times be equal to the principal amount of the Outstanding Bonds.

2.02  Repayment of the Loan.  The Borrower will pay to the Trustee at its Principal Office for the account of the Issuer, and for deposit in the Bond Fund, in immediately available

 

2.03  Yield Protection.  If, after the Closing Date, the adoption of or any change in any Requirement of Law or the compliance of the Bank therewith:

(a) subjects the Bank to any tax, duty, charge or withholding on or from payments due from the Borrower (excluding net income taxes and franchise taxes or any other tax based upon income imposed upon the Bank by the jurisdiction in which the Bank is incorporated or has its principal place of business), or changes the basis of taxation of principal, interest, fees or any other payments to the Bank in respect of this Agreement or any other Related Agreement, or

(b) imposes or increases or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, the Bank, or

(c) imposes any other condition the result of which is to increase the cost to the Bank of holding and owning the Bonds and the extensions of credit and accommodations contemplated by this Agreement or any Related Document, or reduces any amount receivable by the Bank in connection therewith, or requires the Bank to make any payment calculated by reference to the Outstanding Bonds, or amounts received by the Bank, by an amount deemed material by the Bank, then, within ten (10) days of demand by the Bank, the Borrower agrees that they shall pay the Bank that portion of such increased expense incurred or resulting in an amount received which the Bank determines is attributable to receiving any such payment or holding or owning the Outstanding Bonds.

3.01  Organization, Etc.  The Corporation is a corporation duly formed, and validly existing under the laws of the State of Wisconsin.  The LLC is a limited liability company duly organized, and validly existing under the laws of the State of Wisconsin.  Each Borrower has the requisite power and authority and all necessary licenses, permits and franchises to execute and deliver, and to perform its obligations under, this Agreement and each of the Related Documents and Bond Documents to which it is a party, and to grant the liens and security interests provided for in this Agreement and the Related Documents and to own its assets and conduct its business as presently conducted.

3.02  Authorization. The making, execution, delivery and performance of this Agreement the Related Documents by each Borrower are within the powers of such Borrower, and have been duly authorized by all necessary action on the part of such Borrower.  The valid execution, delivery and performance of this Agreement and the Related Documents by each Borrower and the consummation of the transactions contemplated hereby and thereby:  (a) do not and will not violate any term or provision of any Requirement of Law; and (b) are not and will not be subject to any approval, consent or authorization of any Person or Government Authority, other than those approvals, consents or authorizations that have already been obtained and remain in full force and effect.  This Agreement and the Related Documents are the valid and binding obligations of each Borrower, enforceable against each Borrower in accordance with their respective terms.

3.03  No Conflicting Obligations. The making, execution, delivery and performance of this Agreement and the Related Documents and compliance with their respective terms do not violate or constitute a default, breach or violation under any Requirements of Law or any covenant, Bond Agreement, deed, lease, contract, agreement, mortgage, deed of trust, note or instrument to which any Borrower is a party or by which it or its Property is bound.

3.04  No Defaults.  No Borrower is in default under or in violation of (a) any Requirements of Law, (b) any covenant, indenture, deed, lease, agreement, mortgage, deed of trust, note or other instrument to which such Borrower is a party or by which such Borrower or its Property is bound, or (c) any Indebtedness.

3.05  No Litigation.  There is no pending or, to the knowledge of any Borrower, threatened litigation or administrative proceeding at law or in equity which would, if adversely determined, result in a Material Adverse Effect, and, to the best of each Borrower’s knowledge after diligent inquiry, there are no presently existing facts or circumstances likely to give rise to any such litigation or administrative proceeding.

3.06  Financial Statements.  The tax returns and financial statements which each Borrower previously provided to the Bank are accurate and complete.  There has been no Material Adverse Effect since the date of the latest of such statements.  Each entity Borrower’s Fiscal Year ends on December 31 of each year.

3.07  Accuracy of Information.  All information, certificates, forecasts, or statements given by Borrower to the Bank under this Agreement and the Related Documents were accurate, true and complete in all material respects when given, continue to be accurate, true and complete in all material respects as of the date hereof, and do not contain any untrue statement or omission

 

 

3.08  Taxes.  Each Borrower has filed all federal, state, foreign and local tax returns which were required to be filed, except those returns for which the due date has been validly extended.  Each Borrower has paid or made provisions for the payment of all taxes, assessments, fees and other governmental charges owed, and no tax deficiencies have been proposed, threatened or assessed against any Borrower.  There is no pending or, to the best of each Borrower’s knowledge, threatened tax controversy or dispute as of the date hereof.

3.09  Property.  Each Borrower has good and marketable title to all of its Property, including without limitation, the Property reflected in its balance sheets referred to in Section 3.06.  There are no Liens of any nature on any of the Property except Permitted Liens.  All Property useful or necessary in each Borrower’s business, whether leased or owned, is in good condition, repair (ordinary wear and tear excepted) and working order and, to the best of each Borrower’s knowledge after diligent inquiry, conforms to all applicable Requirements of Law.  Each Borrower owns (or is licensed to use) and possesses all such patents, trademarks, trade names, service marks, copyrights and rights with respect to the foregoing as are reasonably necessary for the conduct of the business of such Borrower as now conducted and proposed to be conducted without, individually or in the aggregate, any material infringement upon rights of other Persons.

3.10  Licenses, Franchises.  Each Borrower has all authorizations, licenses, permits and franchises of any Governmental Authority which are necessary for the conduct of its business as now conducted and as proposed to be conducted.  All of such authorizations, licenses, permits and franchises are validly issued and in full force and effect, and each Borrower has fulfilled and performed in all material respects all of its obligations with respect thereto and has full power and authority to operate thereunder.

3.11  Places of Business; Collateral.  The principal places of business and chief executive offices of each Borrower are located at the addresses specified on Schedule 3.11, and the books and records of each Borrower and all records of account are located and hereafter shall continue to be located at such principal place of business and chief executive office.  All locations where collateral may be maintained are set forth on Schedule 3.11.

3.12  Other Names.  No Borrower has conducted business under any corporate, trade, “dba”, or fictitious names.

3.13  Federal Reserve Regulations.  No Borrower will directly or indirectly, use any proceeds of the Bonds to: (a) purchase or carry any “margin stock” within the meaning of Regulations U, G, T or X of the Board of Governors of the Federal Reserve System (12 C.F.R. Parts 221 and 224, as amended); (b) extend credit to other Persons for any such purpose or refund indebtedness originally incurred for any such purpose; or (c) otherwise take or permit any

 

3.14  ERISA.  Each Borrower and anyone under common control with such Borrower under Section 4001(b) of ERISA is in compliance in all respects with the applicable provisions of ERISA and: (a) no “prohibited transaction” as defined in Section 406 of ERISA or Section 4975 of the Code has occurred; (b) no “reportable event” as defined in Section 4043 of ERISA has occurred; (c) no “accumulated funding deficiency” as defined in Section 302 of ERISA (whether or not waived) has occurred; (d) there are no unfunded vested liabilities of any Employer Plan administered by any Borrower; and (e) each Borrower or the plan sponsor has timely filed all returns and reports required to be filed for each Employer Plan.

3.15  Investment Company Act; Public Utility Holding Company Act.  No Borrower is:  (a) an “investment company” or a company “controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended; or (b) a “holding company” or a “subsidiary” of a “holding company” or an “affiliate of a “holding company” or a “subsidiary” of a “holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended.

3.16  Environmental Laws.  The business of each Borrower has been operated in full compliance in all respects with all Environmental Laws, and no Borrower is subject to liability under any Environmental Law relating to the conduct of its business or the ownership of its Property and no facts or circumstances exist which could give rise to such liabilities.  No notice has been served on any Borrower claiming any violation of Environmental Laws, asserting any liability under an Environmental Law, or demanding payment or contribution for a liability under an Environmental Law.

4.01  Certain Related Documents.  The execution and delivery of this Agreement, the Security Agreement, the Guaranty, the Mortgage, the Disbursing Agreement, the Collateral Assignment of Construction Contracts, the Collateral Assignment of Life Insurance, and all other certificates, resolutions, or other documents required or completed hereunder.

4.02  Bond Documents. The execution and delivery of the Bond Documents and the issuance and sale of the Bonds.

4.03  Closing Certificate.  Closing certificates from Borrower in form and substance acceptable to the Bank.

4.04  UCC Searches. A UCC report certified to by the Department of Financial Institutions of the State of Wisconsin indicating that no Borrower’s Property is subject to any security interest other than the Permitted Liens.

4.05  Insurance Certificates. Certificates of Borrower’s insurance coverages, showing insurance protection as required by this Agreement and the Related Documents.

4.06  Title Insurance.  Delivery to the Bank of commitments for mortgage title insurance issued by a title insurance company acceptable to the Bank under a current ALTA form:  (i) insuring that the LLC has a fee simple estate in the Project Real Property, subject to the Mortgage; (ii) insuring that the Mortgage is a valid paramount lien on the Project Real Property in an amount of $4,000,000, subject only to Permitted Liens; (iii) insuring against loss or damage incurred by reason of construction liens which are or may be prior to the lien of the Mortgage; (iv) excluding any exceptions for rights of parties in possession or matters which would be disclosed by surveys of the Project Real Property; and (v) containing gap and such other endorsements as the Bank may request.

4.08  Environmental Reports.  Receipt by the Bank of such environmental reports and site assessments with respect to the Project Real Property (including, without limitation, Phase I and other environmental inspections and soil tests) as the Bank may request, and receipt by the Bank of a completed environmental questionnaire with respect to the Project Real Property in such form as the Bank may request and satisfactory to the Bank in all respects.

4.09  Counsel Opinion.  Receipt by the Bank, from Haferman & Ilten, Stevens Point, Wisconsin, counsel to the Borrower, of satisfactory opinions as to (a) the due authorization, execution and delivery of this Agreement; (b) the other matters referred to in Sections 3.01, 3.02 and 3.03; and (c) such other matters relating to each Borrower and the validity and enforceability of this Agreement and the Related Documents as the Bank shall reasonably require; and the Bank shall have received from Whyte Hirschboeck Dudek S.C., Milwaukee, Wisconsin, bond counsel; (x) an approving opinion regarding the Bonds, including an opinion confirming the tax exempt status of interest on the Bonds; and (y) an opinion that the Bonds are exempt from registration under the Securities Act of 1933, as amended.

4.10  Real Estate Appraisals.  Receipt by the Bank of an as-built appraisal of the Project Real Property, prepared by an appraiser licensed in the State of Wisconsin selected by the Bank, which appraisal shall be addressed to the Bank, conform with applicable Requirements of Law as to form and content, be in form and substance satisfactory to the Bank, and reflect an appraised value of the Project Real Property equal to or more than $4,000,000 (the “Appraised Value”).   Bank acknowledges receipt of an appraisal acceptable to it in form and content.

4.11  Proceedings Satisfactory. All proceedings taken in connection with the transactions contemplated by this Agreement, the applicable Related Documents and the Bond Documents, and all instruments, authorizations and other documents applicable thereto, shall be satisfactory in form and substance to the Bank and its counsel.

4.12  Project Compliance.  Borrower providing Bank evidence in form satisfactory to Bank the following: (i) proof the Project is in compliance with all applicable zoning laws, regulations and ordinances; (ii) a complete set of final working plans and specifications of the Project indicating conformance with all current state, federal, and local laws, codes, regulations, and ordinances (including handicap access regulations), and indicating a level of quality of the Project acceptable to Bank; and (iii) a complete cost breakdown of the Project on standard breakdown sheets, along with a copy of the major contracts and subcontracts for the Project.

4.13  Supporting Documents. Such additional supporting documents and materials as the Bank may request from the Borrower.

      (a)  Keep all Property useful and necessary in its business, whether leased or owned, in good condition, repair and working order (ordinary wear and tear excepted) and from time to time make or cause to be made all needed and proper repairs, renewals, replacements, additions and improvements so that the business carried on in connection therewith may be properly and advantageously conducted at all times.

      (b)  Maintain with good, reputable and financially sound insurance underwriters insurance of such nature and in such amounts as is customarily maintained by Persons engaged in the same or similar business of comparable size to Borrower and such other insurance as may be required by law or as may be reasonably required in writing by the Bank.  Without limiting the foregoing, Borrower shall obtain and provide to Bank a current builder’s risk insurance policy in an amount equal to the total construction cost of the Project Real Property (naming Bank as mortgagee), comprehensive general liability insurance, and workers compensation insurance covering all personnel working on the Project, hazard insurance insuring the Project Real Property against loss by fire, lightning, vandalism, malicious mischief and other risks customarily covered by a standard extended coverage endorsement, in an amount not less than the full insurable value of the Project and naming Bank as mortgagee and lender’s loss payee.  Unless otherwise indicated above, each policy providing liability coverage to the Borrower shall name the Bank as an additional insured, and each property insurance policy insuring the Project Real Property and any business interruption insurance shall name the Bank as an additional loss payee, as its interest appears.  All policies shall require the insurer to give the Bank 30 days’ prior written notice of the modification, cancellation or nonrenewal of the policy and contain a lender’s loss payable endorsement in favor of Bank satisfactory to Bank.  The Borrower shall furnish copies of all such insurance policies or a certificate evidencing that the Borrower have complied with the requirements of this paragraph on the date hereof and on each renewal date of such policies.

5.03  Financial Statements.  Maintain a standard and modern system of accounting in accordance with sound accounting practice, and furnish to the Bank such information respecting

 

    (c)  as soon as available, and in any event within 120 days after the end of each fiscal year, internally prepared financial statements for the LLC for such fiscal year;

5.04  Inspection of Property and Records/Bank Audits.  At any reasonable time following reasonable notice (and as often as may be reasonably desired), permit representatives of Bank to visit the Project Real Property, examine its Property, books and records and discuss its affairs, finances and accounts with its officers or members (as applicable) and independent certified public accountants (who shall be instructed by the Borrower to make available to Bank the work papers of such accountants) and Borrower shall facilitate such inspections and examinations.

5.05  Use of Proceeds.  Use the entire proceeds of the Bonds solely for the purposes set forth in Recital B hereto and within three (3) years of the date hereof.  The amount used for the Project shall not exceed the lesser of (i) $4,000,000, or (iii) 100% of the construction cost of the Project plus the acquisition cost of the Project for equipment at the Facility.  The amount used for issuance and other eligible costs shall not exceed $80,000.

5.07  Compliance With Other Agreements.  Comply with, pay and discharge all existing notes, mortgages, deeds of trust, leases, indentures and any other contractual arrangements to which such Borrower is a party (including, without limitation, all Indebtedness) in accordance with the respective terms of such instruments so as to prevent any default thereunder.

(b)  Maintain at all times all permits, licenses and other authorizations required under Environmental Laws, and comply in all respects with all terms and conditions of the required permits, licenses and authorizations and all other limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in the Environmental Laws.

(c)  Notify the Bank promptly upon obtaining knowledge that (i) any Property previously or presently owned or operated is the subject of an environmental investigation by any Government Authority having jurisdiction over the enforcement of Environmental Laws or other potential claim or notice of threatened litigation or violation of a Requirement of Law, (ii) any Borrower has been or may be named as a responsible party subject to liability under any Environmental Laws, or (iii) any hazardous substance is located on any Property except in compliance with all Requirements of Law.

(d)  At any reasonable time following reasonable notice and as often as may be reasonably desired, permit the Bank or an independent consultant selected by the Bank to conduct an environmental audit satisfactory to the Bank for the purpose of determining whether Borrower and its Property comply with Environmental Laws and whether there exists any condition or circumstance which may require a cleanup, removal or other remedial action by Borrower with respect to any hazardous substance.  Borrower shall facilitate such environmental audit.  The Bank shall provide Borrower, at the request of the Borrower, with all reports and findings but the Borrower may not rely on such environmental audit for any purpose.  Any such environmental audit of the Borrower’s Property shall be at the expense of the Borrower at any time following an Event of Default or upon the occurrence of an event described in Section 5.08(c); provided, however, that the Bank’s environmental audit shall not be at the Borrower’s expense if (i) a Government Authority or a firm or firms of geotechnical engineers and/or environmental consultants hired by Borrower and reasonably acceptable to the Bank shall undertake to make an environmental audit, and (ii) the Borrower shall provide the Bank

(a)  Pay the Bank all additional costs including, without limitation, wire transfer or other charges pertaining to the transfer of funds.

(b)  Pay immediately upon receipt of an invoice all reasonable fees and expenses incurred by the Bank with respect to negotiation, preparation and execution of this Agreement and the Related Documents, and any amendments thereof and supplements thereto, including, without limitation, appraisal fees, environmental inspection fees, and the reasonable fees of in-house and outside counsel.

(c)  Pay immediately upon receipt of an invoice all reasonable fees and expenses incurred by the Bank with respect to protection or enforcement (including collection and disposition of Collateral) of the Bank’s rights under this Agreement and the Related Documents, and all costs and expenses which may be incurred by the Bank with respect to an Event of Default as provided in Section 7.02, including, without limitation, reasonable fees of in-house and outside legal counsel.

5.10  Project Disbursements.  Assure that all disbursements for the Project are submitted and made through the Title Company in accordance with the Disbursing Agreement with construction endorsements satisfactory to Bank, and that all progress payments requested will be on forms satisfactory to Bank, and that prior to disbursement, construction progress will be verified to satisfy Bank that costs are and will be within budget.

5.11  No Liens; Plans; Covenants, Conditions and Restrictions.  Complete the Project so that the Project is free from Liens (except for Permitted Liens), built in accordance with the plans and specifications approved by Bank, and if requested by Bank, pay for and consent to Bank retaining an inspecting engineer to review the plans and specifications of the Project and to review and approve all draws, and completed in compliance with all covenants, conditions and restrictions on the Property.

5.12  Project Lease.  Upon the receipt of the certificate of occupancy for the Project, the LLC, as landlord, and the Corporation, as tenant, shall execute the Project Lease, which lease shall be in form and substance satisfactory to Bank.

5.13  Key-Person Life Insurance.  Maintain Key Person life insurance on the life of Jamie L. Mancl in an amount not less than $4,000,000 good, reputable and financially sound insurance underwriters insurance of such nature.  Such policy shall name Bank as mortgagee and lender’s loss payee and shall require the insurer to give the Bank 30 days’ prior written notice of the modification, cancellation or nonrenewal of the policy.  The Borrower shall furnish copies of such insurance policy or a certificate evidencing that the Borrower has complied with the requirements of this paragraph on the date hereof and on each renewal date of such policies.

5.14  Minimum Tangible Net Worth.  Commencing for the fiscal year ended December 31, 2007 and each fiscal year thereafter, the Corporation shall maintain a Tangible Net Worth of not less than $600,000 for 2007, and increasing annually by an amount equal to sixty percent (60%) of the Corporation’s Net Income, tested at the end of each fiscal year.

5.15  Debt Service Coverage Ratio.  The Corporation shall at all times maintain a Debt Service Coverage Ratio measured as of the last day of each fiscal quarter of not less than 1.25:1.0.

5.16  Total Indebtedness to Tangible Net Worth Ratio.  The Corporation shall at all times maintain a total Indebtedness to Tangible Net Worth Ratio measured as of the last day of each fiscal quarter of not more than 3.50:1.0.

5.17  Annual Resting of Line of Credit.  As a condition for Borrower’s line of credit facility with Lender, Borrower agrees to rest the line of credit and leave at zero (0) dollars the balance owing thereunder for a period of not less than thirty (30) consecutive days annually.

5.18  Mortgage on After-Acquired Real Estate.  The Borrower shall grant a first priority mortgage in favor of Trustee and Original Purchaser on any real estate acquired after the Closing Date, including Lot 2 of CSM 8590, City of Wisconsin Rapids, Wood County, Wisconsin, upon the acquisition of such real estate.

Each Borrower covenants and agrees that, from and after the date of this Agreement and until the entire amount of the Obligations are paid in full and satisfied and no Bonds remain Outstanding, such Borrower shall not take any of the following actions:

6.01  Sale of Assets, Consolidation, Merger, Acquisitions, Etc.  (a) Except for sales of inventory in the ordinary course of business, sell, transfer, convey, or lease all or substantially all of its Property; (b) except for the Project Lease with the Corporation for sales of obsolete or worn out equipment in the ordinary course of business, sell, transfer, lease all or any part of the Project Real Property; (c) consolidate or merge with or into any other Person; (d) directly or indirectly, sell or transfer any Property, used or useful in its business, and thereafter lease such Property or other Property which it intends to use for substantially the same purposes; (e) create a Subsidiary; (f) purchase or otherwise acquire all or substantially all of the assets or stock of any Person; (g) enter into any joint venture; or (h) amend its articles of organization or operating agreement.

6.02  Indebtedness.  Issue, create, incur, assume, guaranty or otherwise become liable with respect to (or agree to issue, create, incur, assume, guaranty or otherwise become liable with respect to), or permit to remain outstanding, any Indebtedness except:  (a) the Obligations; (b) current liabilities (other than for borrowed money) of Borrower incurred in the ordinary course of business which are not more than ninety (90) days overdue, unless being contested in good faith and with due diligence; (c) Indebtedness to the Issuer related to the Bonds; and (d) purchase money Indebtedness secured by Permitted Liens.

6.03  Liens.  Create or permit to be created or allow to exist any Lien upon or interest in any Property of Borrower except Permitted Liens.

6.04  Guaranty.  Guaranty or otherwise in any way become or be responsible for obligations of any other Person, directly or indirectly, including any agreement to purchase the indebtedness of any other Person, agreement for the furnishing of funds to any other Person through the purchase of goods, supplies or services, an agreement for stock purchase or capital contribution or any other agreement or undertaking to pay or discharge the indebtedness of any Person, or otherwise, except for the endorsement of negotiable instruments by Borrower for deposit or collection or similar transactions in the ordinary course of business.

6.05  Loans, Investments.  Make or commit to make advances, loans, extensions of credit or capital contributions to, or purchases of any stock, bonds, notes, debentures or other securities of, or make any other investment in, any Person except:  (a) accounts, chattel paper, and notes receivable created by Borrower in the ordinary course of business; (b) extensions of credit to customers of Borrower in the ordinary course of business and consistent with past practice, (c) investments in bank certificates of deposit (but only with FDIC-insured commercial banks having a combined capital and surplus in excess of $20,000,000), open market commercial paper maturing within one year having the highest rating of either Standard & Poors Rating Service or Moody’s Investors Services, Inc., U.S. Treasury Bills subject to repurchase agreements and short-term obligations issued or guaranteed by the U.S. Government or any agency thereof; and (d) investments in open-end diversified investment companies of recognized financial standing investing solely in short-term money market instruments consisting of securities issued or guaranteed by the United States government, its agencies or instrumentalities, time deposits and certificates of deposit issued by domestic banks or London branches of domestic banks, bankers acceptances, repurchase agreements, high grade commercial paper and the like.

6.06  Compliance with ERISA.  (a) Terminate any Employer Plan so as to result in any material liability to PBGC; (b) engage in any “prohibited transaction” (as defined in Section 4975 of the Code) involving any Employer Plan which would result in a material liability for an excise tax or civil penalty in connection therewith; or (c) incur or suffer to exist any material “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, involving any condition, which presents a risk of incurring a material liability to PBGC by reason of termination of any such Employer Plan.

6.07  Restricted Payments.  Without the Bank’s consent, make any Restricted Payments; provided, however, that, so long as no Default has occurred and is continuing or will occur as a result of any such payment, each Borrower may pay distributions to its members or

 

6.08  Project Lease – No Modification.  Modify or amend the Project Lease, after the same has been approved by the Bank and executed by the Corporation and the LLC.

6.09  Salaries.  Pay officer compensation in excess of $90,000 annually or otherwise excessive or unreasonable salaries, bonuses, commissions, consultant fees, or other compensation.

6.10  Change In Control.  Make no changes in the current ownership structure or management of either entity Borrower, without Bank’s consent.

(a)  Failure to pay any of the Obligations when and as the same shall become due and payable, whether upon demand, at maturity, by acceleration or otherwise;

(b)  Any Borrower fails to observe or perform any of the covenants, agreements or conditions contained in Article VI;

(c)  Any Borrower fails to observe or perform any of the other covenants, agreements or conditions contained in Article V which failure continues for a period of thirty (30) days following the delivery of written notice by the Bank specifying the existence of the default;

(d)  Any representation or warranty made by a Borrower herein or in any Related Document, or in any certificate, document or financial statement delivered to the Bank pursuant hereto or thereto shall prove to have been incorrect in any material respect as of the time when made or given;

(e)  This Agreement or any of the Related Documents shall at any time cease to be in full force and effect, or any Borrower attempts to revoke or terminate this Agreement or any Related Document;

(f)  A final judgment (or judgments) shall be entered against any Borrower which singularly or when added to any other outstanding final judgment (or judgments) against such Borrower exceeds the aggregate amount of $10,000, and such judgment (or judgments) shall remain outstanding and unsatisfied, unbonded, uninsured or unstayed after thirty days from the date of entry thereof;

(g)  Any Borrower:  (i) becomes insolvent; or (ii) is unable, or admits in writing its, his or her inability, to pay its, his or her debts as they mature; or (iii) makes a general assignment for the benefit of creditors or to an agent authorized to liquidate any

(h)  Either Borrower (that is an entity) is dissolved or gives notice of dissolution to any claimant;

(i)  Any Borrower defaults (as principal or guarantor or otherwise) either in the payment of the principal of or interest on any other Indebtedness, or with respect to any of the provisions of any evidence of such Indebtedness or any agreement under which such evidence of Indebtedness may have been issued or secured, and such default shall continue for more than any period of grace, if any, specified in such instrument;

(j)  This Agreement or any of the Related Documents shall at any time cease to be in full force and effect, or any Borrower attempts to revoke or terminate this Agreement or any Related Document;

(l)  Any Borrower defaults (as principal or guarantor or otherwise) either in the payment of the principal of or interest on any other Indebtedness to the Bank, or with respect to any of the provisions of any evidence of such Indebtedness or any agreement under which such evidence of Indebtedness may have been issued or secured, and such default continues for more than any period of grace, if any, specified in such instrument; or

(m)  An event of default (as defined in the Bond Agreement) occurs and is continuing under the Bond Agreement.

(a)  Upon the occurrence of an Event of Default, all Obligations shall become immediately due and payable without demand, notice, presentment, protest or other action by the Bank, all of which are hereby waived by each Borrower.  The Bank shall have the right to notify the Trustee of said Event of Default, pursuant to Section 7.01(h) of the Bond Agreement, and to cause the acceleration of the payment of interest and principal on the Bonds.  The Bank shall have all of the rights and remedies provided to the Bank by the Related Documents, at law or in equity, and no remedy herein conferred upon the Bank is intended to be exclusive of any other remedy.  Upon the occurrence of an Event of Default, Borrower shall pay all costs and expenses which may be incurred by the Bank with respect thereto, including reasonable attorneys’ fees, and all such sums shall be and become a part of the Indebtedness of Borrower to the Bank.

(b)  The Bank may at any time without prior notice or demand set off against any credit balance or other money now or hereafter owed to Borrower all or any part of the Obligations.  Each Borrower hereby grants to the Bank a security interest in and Lien on any such credit balance or other money.  The Bank shall give notice of its exercise of this remedy to the Borrower as soon as practicable.

8.01  Indemnity.  Each Borrower shall defend, indemnify and hold harmless the Bank, and its directors, officers, employees and agents from and against any and all loss, cost, expense, damage or liability (including reasonable attorneys’ fees) incurred in connection with any claim, counterclaim or proceeding brought as a result of, arising out of or relating to any transaction financed or to be financed, in whole or in part, directly or indirectly, with the proceeds of the Bonds or the entering into and performance of this Agreement, any Bond Document, any Related Document or any agreement, document or instrument related to any of the foregoing by the Bank, or the activities of any Borrower.  This indemnification will survive termination of this Agreement and the discharge and release of any Bond Documents and Related Documents.

8.02  Assignability; Successors.  No Borrower’s rights and liabilities under this Agreement are assignable in whole or in part without the prior written consent of the Bank.  The provisions of this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Bank and the successors and permitted assigns of the Borrowers.

8.03  Survival.  All agreements and representations and warranties made herein and in the Related Documents shall survive the execution and delivery of this Agreement and the Related Documents.

8.04  Counterparts; Headings.  This Agreement may be executed in several counterparts, each of which shall be deemed an original, but such counterparts shall together constitute but one and the same agreement.  The section headings in this Agreement are inserted for convenience of reference only and shall not constitute a part hereof.

8.05  Entire Agreement; Amendments.  This Agreement and the Related Documents contain the entire understanding of the parties with respect to the subject matter hereof, and supersede all other understandings, oral or written, with respect to the subject matter hereof.  No statement or writing subsequent to the date hereof purporting to modify, alter or amend any portion hereof, including Borrower’s obligation to pay the amount due hereunder (whether at maturity, by reason of acceleration or otherwise), shall be effective unless consented to in a writing, which makes specific reference to this Agreement, and which has been signed by the party against which enforcement thereof is sought.  Any amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

8.06  Notices.  All communications, consents and notices required or permitted by this Agreement shall be in writing and shall be deemed to have been given or made (a) when delivered in hand or by courier, or (b) three days after being deposited in the mail (including

 

8.07  No Waiver.  Any action or inaction by the Bank, taken in the absence of the satisfaction of any condition imposed upon Borrower by the Related Documents, including those imposed by Sections 4.01 and 4.02 of this Agreement, shall not be deemed to constitute a waiver of any such condition by the Bank.

8.08  Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

8.09  Further Assurances. Borrower agrees to do such further acts and things, and to execute and deliver such additional conveyances, assignments, agreements and instruments, as the Bank may at any time reasonably request in connection with the administration or enforcement of this Agreement or the Related Documents or in order better to assure and confirm unto the Bank its rights, powers and remedies hereunder.

8.10  Conflicts and Ambiguities. In the event of any ambiguity or conflict as between the terms of this Agreement, the Related Documents or any other document executed and delivered pursuant to this Agreement, the terms of this Agreement shall control.

8.11  Governing Law.  The validity, construction, enforcement and performance of this Agreement shall be governed by the internal laws of the State of Wisconsin.

8.12  Consent to Jurisdiction. Borrower hereby irrevocably submits to the exclusive jurisdiction of any United States federal or Wisconsin state court sitting in Milwaukee, Wisconsin, in any action or proceeding arising out of or relating to this Agreement or any related documents, and Borrower hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in any such court and irrevocably waives any objection it may now or hereafter have as to the venue of any such suit, action or proceeding brought in such a court or that such court is an inconvenient forum.  Nothing herein shall limit the right of the Bank to bring proceedings against the Borrower in the courts of any other jurisdiction.  Any judicial proceeding by Borrower against the Bank, or any affiliate of the Bank involving, directly or indirectly, any matter in any way arising out of, related to, or connected with this Agreement or any Related Documents shall be brought only in a United States federal or Wisconsin state court sitting in Milwaukee, Wisconsin.

8.13  Fees and Expenses.  Borrower shall reimburse the Bank for all out-of-pocket expenses incurred in connection with the preparation of this Agreement and the Related Documents (including, without limitation, filing and recording fees, appraisal expenses, survey expenses, hazard and title insurance premiums, inspections fees, and the reasonable fees and expenses of all of its counsel, advisors, consultants and auditors retained in connection with this Agreement and the Related Documents and the transactions contemplated thereby and advice in connection therewith).  Borrower hereby shall reimburse the Bank for all fees, costs and expenses, including the fees, costs and expenses of counsel or other advisors (including environmental and management consultants) for advice, assistance, or other representation in connection with:

(ii) any amendment, modification or waiver of, or consent with respect to, this Agreement, any of the Related Documents or any of the Bond Documents or advice in connection with the administration of the extensions of credit made pursuant hereto or its rights hereunder or thereunder;

(iii) any litigation, contest, dispute, suit, proceeding or action (whether instituted by the Bank, Borrower, or any other Person) in any way relating to the Collateral, this Agreement, any of the Bond Documents, any of the Related Documents or any other agreement to be executed or delivered in connection therewith or herewith, whether as party, witness, or otherwise, including any litigation, contest, dispute, suit, case, proceeding or action, and any appeal or review thereof, in connection with a case commenced by or against Borrower or any other Person that may be obligated to the Bank by virtue of this Agreement, any of the Bond Documents or any of the Related Documents;

(iv) any attempt to enforce any rights of the Bank against Borrower, or any other Person that may be obligated to the Bank by virtue of this Agreement or any of the Related Documents;

(v) efforts to (A) monitor any of the Obligations, (B) evaluate, observe, assess Borrower or its affairs, and (C) verify, protect, evaluate, assess, appraise,

 

8.14  Assignments; Participations.  The Bank may at any time sell, assign or transfer to one or more banks or other entities (“Participants”) interests in this Agreement and the other Related Documents or any other interest of the Bank or extension of credit hereunder.  Borrower authorizes the Bank to disclose to any Participant and any such prospective Participants any and all financial information in the Bank’s possession concerning Borrower, and its affiliates which has been delivered to the Bank by or on behalf of Borrower pursuant to this Agreement or any Related Document or which has been delivered to the Bank by or on behalf of the Borrower in connection with the Bank’s credit evaluation of Borrower, and its affiliates prior to becoming a party to this Agreement.  Each Borrower agrees that if amounts outstanding under this Agreement or any Related Document are due and unpaid, or shall have been declared to be or shall have become due and payable upon the occurrence of any Event of Default, each Participant shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement or such Related Document to the same extent as if the amount of its participating interest were owing directly to it as a lender under this Agreement or any Related Document.

8.15  WAIVER OF JURY TRIAL.  EACH BORROWER AND THE BANK HEREBY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE RELATED DOCUMENTS, THE OBLIGATIONS HEREUNDER AND THEREUNDER, ANY COLLATERAL SECURING THE OBLIGATIONS, OR ANY TRANSACTION ARISING THEREFROM OR CONNECTED THERETO.  BORROWER AND THE BANK REPRESENT TO THE OTHER THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY GIVEN.