UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
Mark One
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended JANUARY 2, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to ___________
Commission File No. 0-13365
OshKosh B'Gosh, Inc.
A DELAWARE Corporation 39-0519915
(I.R.S. ID)
112 Otter Avenue
Oshkosh, Wisconsin 54901
Telephone number: (920) 231-8800
Securities registered pursuant to Section 12(b) of the Act:
NONE
Securities registered pursuant to Section 12(g) of the Act:
Class A Common Stock, Par Value $.01 per share
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the Registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein,
and will not be contained, to the best of registrant's knowledge,
in definitive proxy or information statements incorporated by
reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
As of March 19, 1999, there were outstanding 15,685,346 shares of
Class A Common Stock and 2,260,078 shares of Class B Common
Stock, of which 14,996,585 shares and 1,162,140 shares,
respectively, were held by non-affiliates of the registrant.
Based upon the closing sales price as of March 19, 1999, the
aggregate market value of the Class A Common Stock held by non-
affiliates was $273,687,676. The Class B Common Stock is no
longer listed or quoted on any established trading market, but it
is convertible into Class A Common Stock on a share-for-share
basis. Based on that conversion right, the value of Class B
Common Stock held by non-affiliates was $21,209,055.
DOCUMENTS INCORPORATED BY REFERENCE
OshKosh B'Gosh, Inc. definitive Proxy Statement for its annual
meeting to be held on May 7, 1999 (or such later date as the
directors may determine), incorporated into Part III
INDEX
PART I PAGE
Item 1. Business 5
(a) General Development of Business 5
(b) Financial Information About Industry Segments 6
(c) Narrative Description of Business 7
Products 7
Raw Materials, Manufacturing and Sourcing 8
Sales and Marketing 10
International Licensing and Distribution 11
Trademarks 11
Seasonality 11
Working Capital 12
Backlog 12
Competitive Conditions 12
Environmental Matters 13
Employees 13
Item 2. Properties 14
Item 3. Legal Proceedings 15
Item 4. Submission of Matters to a Vote of Security Holders 15
PART II
Item 5. Market for the Registrant's Common Stock and
Related Stockholder Matters 15
Item 6. Selected Financial Data 16
Item 7. Management's Discussion and Analysis of Results
of Operations and Financial Conditions 17
Item 7A. Quantitative and Qualitative Disclosures About
Market Risk 26
Item 8. Financial Statements and Supplemenatary 27
Item 9. Disagreements on Accounting and Financial Disclosure 49
PART III
Item 10. Directors and Executive Officers of the Registrant 49
Item 11. Executive Compensation 49
Item 12. Security Ownership of Certain Beneficial Owners
and Management 49
Item 13. Certain Relationships and Related Transactions 49
PART IV
Item 14. Exhibits, Financial Statement Schedule, and Reports
on Form 8-K 49
PART I
ITEM 1. BUSINESS
(a) General Development of Business
OshKosh B'Gosh, Inc. (together with its subsidiaries, the
"Company") was founded in 1895 and was incorporated in the state
of Delaware in 1929. The Company designs, manufactures, sources
and markets apparel primarily for the children's wear and youth
wear markets. The Company also offers a children's footwear
collection. While its heritage began in the men's work wear
market, the Company is currently best known for its line of high
quality children's wear. It is the Company's vision to become
the dominant global marketer of branded products for children
ages newborn to ten through leverage of the existing brand
franchise in OshKosh B'Gosh and Baby B'Gosh and utilization of
the Company's core competencies to supply the market with all
appropriate product for children where quality, durability, and
fashion innovation are important. The Company is also pursuing
niche opportunities in adult apparel, where the Company's century
old heritage can provide meaningful differential advantage to
address the needs of the marketplace.
The success of the children's wear business can be attributed to
the Company's core themes: quality, durability, style, trust and
Americana. These themes have propelled the Company to the
position of a market leader in the branded children's wear
industry. The Company strategically extends the product line and
also leverages the economic value of the OshKosh B'Gosh name via
both domestic and international licensing agreements.
In addition to the Company's wholesale business, the Company also
operates a chain of 122 domestic OshKosh B'Gosh branded stores,
including 117 factory outlet stores and five specialty stores.
The Company operates an OshKosh B'Gosh showcase store in New York
City to feature a full line of OshKosh product in a signature
environment designed to reinforce brand awareness among
consumers. During 1997, the Company expanded its retail product
line in its OshKosh B'Gosh branded stores by offering youth wear
sizes for girls and boys under the trade names Genuine Girl
(girls sizes 7-16) and Genuine Blues (boys sizes 8-16). Based on
the sales performance of the Genuine Girl line in the OshKosh
B'Gosh operated retail stores, the Company expanded the
distribution of this product line to wholesale customers
beginning with the Spring 1998 season.
The Company completed a comprehensive strategic planning
initiative in 1996. As part of this initiative and combined with
management's commitment to more efficient utilization of working
capital, the Company continues to take steps to improve product
marketability, streamline operations, reduce its capital base and
cost structure and improve delivery performance. These actions
included an analysis of product extensions, commitment to
wholesale customer base, periodic review of significant licensee
arrangements, and development of an effective sourcing strategy,
which has resulted in the closing of certain domestic
manufacturing facilities.
The Company designs and arranges for the manufacture of
substantially all of its apparel and footwear. Company designers
develop fabrication, trim accessories, and detailed manufacturing
specifications. The product is then manufactured according to
detailed Company specifications and production schedules in
Company-owned manufacturing facilities or at third party
contractor locations worldwide. Product sourcing is based on
manufacturing capacity, quality, and lead times, in addition to
capabilities of specific manufacturing facilities.
The Company leverages its name and brand equity into a wide
variety of children's products including sleep wear, socks, eye
wear, educational toys, bedding, and other juvenile products.
The Company regularly reviews the seasonal offerings of all
related products both locally and internationally for
consistency, brand image and quality. The Company earns
royalties for use of its name on children's and men's wear
products throughout the world, and from related accessories
distributed in the United States and worldwide.
(b) Financial Information About Industry Segments
The Company is engaged in only one line of business, namely, the
apparel industry.
(c) Narrative Description of Business
Products
The Company designs, manufactures, sources and markets a broad
range of children's clothing as well as lines of youth wear and
footwear under the OshKosh (copyright), OshKosh B'Gosh (copyright),
Baby B'Gosh (copyright), Genuine Girl (copyright) and Genuine
Blues (copyright) labels. The products are distributed primarily
through better quality department and specialty stores, 122 Company
owned domestic stores, and foreign retailers.
The children's wear and youth wear business is targeted to reach
the middle to upper middle segment of the sportswear market,
through the use of innovative designs, quality fabrics and
classic styling. The Company believes that its trade name is a
valuable asset in the marketing of its apparel, signifying
apparel that is classic in design and of high quality
construction. The Company tradename and trademarks are generally
displayed prominently on OshKosh product. Children's wear is
marketed in size ranges from layette/newborn and infant/toddler
to girls 6X and boys 7. Youth wear is in size ranges girls 7 to
16 and boys 8 to 16.
The Company's children's wear and youth wear business includes a
broad range of product categories, which are offered in two main
groups: Fashion and Classics. The Fashion group is organized
primarily in a collection format of seasonal themes, developed by
an in-house product development staff. The products in a
collection share a primary design theme which is carried out
through fabric design and the distinctive use of colors,
screenprint, embroidery, and trim applications. These
collections are generally presented as three to five small groups
within each merchandising season.
The Company also offers a Classics product line, consisting
primarily of staple denim products with multiple wash treatments.
The Classics product offerings for each season will typically
consist of a variety of clothing items including bib overalls,
pants, jeans, shorts and shortalls (overalls with short pant
legs), shirts, blouses and knit tops, skirts, jumpers, sweaters,
dresses, playwear and fleece. This product line is developed to
be relatively seasonless, with signature OshKosh B'Gosh classic
styling. These styles are available to retail customers for
replenishment throughout the year. Some Classics items are also
designed to serve as a foundation for the Fashion group, with
seasonal colors and styles to complement the Company's Fashion
product offering.
Most products are designed by an in-house staff. Product design
requires long lead times, with products generally being designed
a year in advance of the time they actually reach the retail
market. While the Company's products are generally traditional in
nature and not intended to be "designer" items, the Company
attempts to incorporate current trends and consumer preferences
in its designs.
In selecting fabric and prints for its products, the Company
seeks, where possible, to obtain exclusive rights to the fabric
design from its suppliers in order to provide the Company, for a
limited period of time, with some protection from imitation by
competitors.
Raw Materials, Manufacturing, and Sourcing
All raw materials used in the manufacture of Company products are
purchased from unaffiliated suppliers. The Company purchases its
raw materials directly for its owned manufacturing facilities and
may also procure and retain ownership of fabric related to
garments cut and assembled by contract manufacturers. In other
circumstances, fabric is procured by the contract manufacturer
directly but in accordance with the Company's specifications. In
1998, approximately 77% of the Company's direct expenditures for
raw materials (fabric) were from its five largest suppliers, with
the largest such supplier accounting for approximately 63% of
total raw material expenditures. Fabric and various non-fabric
items, such as thread, zippers, rivets, buckles and snaps, are
purchased from a variety of domestic and foreign sources, based
on quality, pricing, and availability. The fabric and accessory
market in which OshKosh B'Gosh purchases its raw materials is
composed of a substantial number of suppliers with similar
products and capabilities, and is characterized by a high degree
of competition. As is customary in its industry, the Company has
no long-term contracts with its suppliers. To date, the Company
has experienced little difficulty in satisfying its requirements
for raw materials, considers its sources of supply to be
adequate, and believes that it would be able to obtain sufficient
raw materials should any one of its product suppliers become
unavailable.
Product development and administration are primarily coordinated
from the Company's headquarters facility in Oshkosh, WI or its
design studio in New York City. The majority of the product
engineering and sample making, allocation of production among
plants and independent contractors, material purchases and
invoice payments is done through the Company's Oshkosh
headquarters. Substantially all designs and specifications
utilized by independent manufacturers are provided by the
Company.
In 1998, approximately 42% of the Company's product line
(excluding footwear) was produced at Company-owned facilities,
with the remainder produced by numerous third party contractors
throughout the world, in accordance with the Company's
specifications. Most domestic production takes place in the
Company's three Tennessee and two Kentucky plants. The Company
also leases a sewing plant in Honduras, where cut apparel pieces
are received from the United States and are reimported by OshKosh
B'Gosh as finished goods under Section 9802 (previously Section
807). In 1997 and 1998, as part of the Company's review of
manufacturing capacity and utilization, the Company completed the
closure of certain domestic manufacturing facilities and
continued to expand its use of offshore manufacturing
capabilities. These actions were part of the Company's on-going
effort to improve its product cost structure. The Company has
established guidelines for each of its third party manufacturers
in order to monitor product quality, labor practices and
financial viability. It also employs agents, based in regional
locations abroad, to monitor compliance with design
specifications and quality standards. The Company believes that
its overall global manufacturing strategy gives the Company
maximum flexibility to properly balance the need for timely
shipments, high quality products and competitive pricing.
While no long-term, formal arrangements exist with its third-
party manufacturers, the Company considers these relationships to
be satisfactory. The Company believes it could, over a period of
time, obtain adequate alternative production capacity if any of
its independent manufacturers become unavailable. As part of the
Company's product sourcing strategy, it routinely contracts for
apparel products produced by contractors in Asia. If the current
financial and related difficulties were to adversely impact the
Company's contractors in Asia, it could disrupt the supply of
products contracted for by the Company. A sustained disruption
of such sources of supply could, particularly on a short-term
basis, have an adverse impact on the Company's operations.
Because higher quality apparel manufacturing is generally labor
intensive (sewing, pressing, finishing and quality control), the
Company has continually sought to take advantage of time saving
technical advances in areas like computer-assisted design,
computer-controlled fabric cutting, computer evaluation and
matching of fabric colors, automated sewing processes, and
computer-assisted inventory control and shipping. In order to
realize economies of operation within the domestic production
facilities, cutting operations are located in one of the
Company's five plants, with all domestic product washing,
pressing and finishing done in one facility in Tennessee and all
screenprint and embroidery done in one facility in Kentucky.
Quality control inspections of both semi-finished and finished
products are required at each plant, including those of
independent manufacturers, to assure compliance.
Customer orders for Fashion products are booked from three to six
months in advance of shipping. Because most Company production
of styled products is scheduled to fill orders already booked,
the Company believes that it is better able to plan its
production and delivery schedules than would be the case if
production were in advance of actual orders. In order to secure
necessary fabrics on a timely basis and to obtain manufacturing
capacity from independent suppliers, the Company must make
substantial advance commitments, sometimes as much as five to
seven months prior to receipt of customer orders. Inventory
levels therefore depend on Company judgment of market demand.
Sales and Marketing
In order to meet the diverse needs of its broad customer base,
the Company uses a wide variety of distribution channels to
market its products. Wholesale distribution is made primarily
through better quality department and specialty stores, although
sales are also made through direct mail catalog companies,
foreign retailers and other outlets. In 1998, the Company's
products were sold to approximately 2,300 wholesale customers
(approximately 7,500 stores) throughout the United States, and a
sizable number of international accounts.
Product sales to better quality department and specialty stores
are made primarily by an employee sales force with the balance of
sales made by manufacturer's representatives or through in-house
accounts. In addition to the central sales office in Oshkosh,
the Company maintains regional sales offices and product
showrooms in Dallas and New York. Most members of the Company's
sales force are assigned to defined geographic territories, with
some assigned to specific large national accounts. In sparsely
populated areas and new markets, manufacturer's representatives
represent the Company on a non-exclusive basis.
In addition to its wholesale activities, OshKosh B'Gosh products
are also sold through 122 Company-owned domestic retail stores,
operating under two formats: factory outlet stores and mall-based
specialty stores. The Company operates 117 domestic factory
outlet stores, which carry a large selection of first quality
Company branded apparel at a discount to conventional retail
prices. The factory outlet stores also provide a means of
distributing excess and out-of-season product, reducing the
amount of such product sold to discounters at excessively low
prices. In addition, the Company operates four regional mall-
based stores and one showcase store. These full price, full
service stores feature a full line of OshKosh B'Gosh product in a
signature environment designed to convey the total OshKosh image
and build brand recognition among customers. The stores are also
used to test new styles and merchandising strategies.
The Company's broad distribution base insulates the Company from
reliance on any one customer. The Company's largest wholesale
customer accounted for 12% of the Company's 1998 sales, while the
Company's largest ten and largest 100 customers accounted for
approximately 45% and 56% of 1998 sales, respectively.
Domestic marketing programs are aimed at both the Company's
retail accounts and ultimate consumers, with a main goal of
increasing overall brand awareness. A national marketing program
includes advertising in both consumer and trade publications,
local cooperative advertising, promotions and in-store
merchandising. The Company also offers a cooperative
advertising program to its retail customers, paying a portion of
its retail customers' advertising expenditures up to a maximum
percentage of qualifying sales.
International Licensing and Distribution
The Company's products are distributed worldwide through
approximately 40 licensees and distributors in over 80 countries.
Licensing and distribution agreements allow the Company to
develop international markets without the need to maintain a
capital commitment in localized warehousing, offices, personnel
and inventory.
The Company provides design assistance to its licensees to insure
products are appropriate to each foreign market and consistent
with the Company's brand image. The licensees and distributors
either purchase fabric or finished product directly from the
Company, manufacture their own product, or contract the
production of the product from third-party manufacturers. Each
licensee and distributor is responsible for the marketing and
distribution of specific product categories within defined
regions specified in the licensing or distribution agreement.
Distribution must be through marketing channels consistent with
the Company's domestic operations and as approved by the Company.
The Company also provides advertising guidelines and support in
the development of localized marketing programs.
Trademarks
The Company utilizes the OshKoshr, OshKosh B'Goshr, Baby B'Goshr,
Genuine Girlr or Genuine Bluesr trademarks on most of its
products. Other significant trademarks include a white
triangular patch on the back of bib garments and the Genuine
Articler. The Company currently has approximately 43 trademark
registrations and 1 pending trademark application in the United
States and has trademark registrations in approximately 100
countries outside the U.S. These trademarks and universal
awareness of the OshKosh B'Gosh name are significant in marketing
the products. Therefore, it is the Company's policy to
vigorously defend its trademarks against infringement under the
laws of the U.S. and other countries. The Company is not aware
of any material infringing uses.
Seasonality
Products are designed and marketed primarily for three principal
selling seasons:
PRIMARY
RETAIL SALES SEASON BOOKING PERIOD SHIPPING PERIOD
Spring/Summer August-September January-April
Fall/Back-to-School January-February May-August
Winter/Holiday April-May September-December
The Company's business is increasingly seasonal, with highest
sales and income in the third quarter which is the Company's peak
wholesale shipping period and a major retail selling season at
its retail stores. The Company's second quarter sales and income
are the lowest because of both relatively low domestic wholesale
unit shipments and relatively modest retail store sales during
this period. The Company anticipates this seasonality trend to
continue to impact 1999 quarterly sales and income.
Working Capital
Working capital needs are affected primarily by inventory levels,
outstanding accounts receivable and trade payables. The Company
maintains a credit agreement with a number of banks which
provides a $60 million revolving credit facility and a $40
million revocable demand line of credit for cash borrowings,
issuance of commercial paper and letters of credit. The
agreement expires in June, 2001. There were no outstanding
borrowings against these credit arrangements at January 2, 1999.
Letters of credit of approximately $21 million were outstanding
at January 2, 1999.
Inventory levels are affected by order backlog and anticipated
sales. Accounts receivable are affected by payment terms
offered. It is general practice in the apparel industry to offer
payment terms of ten to sixty days from date of shipment. The
Company offers net 30 days terms only.
The Company believes that its working capital requirements and
financing resources are comparable with those of other major,
financially sound apparel companies.
Backlog
The dollar amount of backlog of orders believed to be firm as of
the end of the Company's fiscal year and as of the preceding
fiscal year end is not material for an understanding of the
business of the Company taken as a whole.
Competitive Conditions
The apparel industry is highly competitive and consists of a
number of domestic and foreign companies. Some competitors have
assets and sales greater than those of the Company. In addition,
the Company competes with a number of firms that produce and
distribute only a limited number of products similar to those
sold by the Company or sell only in certain geographic areas
being supplied by the Company.
A characteristic of the apparel industry is the requirement that
a marketer recognize fashion trends and adequately provide
products to meet such trends. Competition within the apparel
industry is generally in terms of quality, price, service, style
and, with respect to branded product lines, consumer recognition
and to a lesser extent on the basis of service and price. The
Company is focusing attention on the issues of price and service
and has taken and will continue to take steps to reduce costs,
become more competitive in the eyes of value conscious consumers
and deliver the service expected by its customers.
The Company's share of the overall children's wear market is
quite small. This is due to the diverse structure of the market
where there is no truly dominant producer of children's garments
across all size ranges and garment types. The Company believes
that in its primary channel of distribution, department and
specialty stores, it holds the largest share of the branded
children's wear market.
Environmental Matters
The Company's compliance with Federal, State, and local
environmental laws and regulations had no material effect upon
its capital expenditures, earnings, or competitive position. The
Company does not anticipate any material capital expenditures for
environmental control in either the current or succeeding fiscal
years.
Employees
At January 2, 1999, the Company employed approximately 3,800
persons. Approximately 22% of the Company's personnel are
covered by collective bargaining agreements with the United
Garment Workers of America.
ITEM 2. PROPERTIES
Approximate
Floor Area in
Location Square Feet Principal Use
Albany, KY 20,000 Manufacturing
Byrdstown, TN 32,000 Manufacturing
Celina, TN 38,250 Laundering/Pressing
Dallas, TX (1) 1,995 Sales Offices/Showroom
Gainesboro, TN 61,000 Sample Production
Jamestown, TN 43,000 Manufacturing
Liberty, KY 218,000 Manufacturing/Warehousing
New York City, NY (2) 18,255 Sales Offices/Showroom/Design Studio
Oshkosh, WI 99,000 Exec. & Operating Offices
Oshkosh, WI 88,000 Leased to Outside Party
Oshkosh, WI 128,000 Distribution/Warehousing
Red Boiling Springs, TN 41,000 Leased to Outside Party
White House, TN 284,000 Distribution/Warehousing
All properties are owned by the Registrant with the exception of:
(1) Lease expiration date--2001, (2) Lease expiration date--2007.
The Company believes that its properties are well maintained and
its manufacturing equipment is in good operating condition and
adequate for current production. Substantially all of the
Company's retail stores occupy leased premises, with lease terms
generally in the range of 5 - 7 years. These leasehold interests
are generally well suited for the Company's retail operations.
For information regarding the terms of the leases and rental
payments thereunder, refer to the "Leases" note to the
consolidated financial statements on of this Form 10-K.
ITEM 3. LEGAL PROCEEDINGS
The Company is involved in various claims and lawsuits incidental
to its business. In the opinion of management, these claims and
lawsuits will not have a material adverse effect on the Company's
financial position or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED
STOCKHOLDER MATTERS
Quarterly Common Stock Data 1
1998 1997
Stock price Dividends Stock price Dividends
High Low per share High Low per share
Class A Common Stock
1st $20-1/4 $14-1/2 $0.035 $ 8-9/16 $ 6-7/8 $0.035
2nd 23 17-3/4 0.035 10-7/8 7-3/4 0.035
3rd 24-9/16 18-1/4 0.05 14-1/16 10-9/16 0.035
4th 24-1/4 17-7/8 0.05 17-13/16 13-3/8 0.035
Class B Common Stock
1st $--- $--- $0.03 $ 9-3/4 $ 9-9/16 $0.03
2nd --- --- 0.03 9-9/16 9-9/16 0.03
3rd --- --- 0.0425 --- --- 0.03
4th --- --- 0.0425 --- --- 0.03
1 Adjusted for the two-for-one stock split in September 1998.
The Company's Class A common stock trades on the Over-The-Counter
market and is quoted on NASDAQ under the symbol GOSHA. The table
reflects the "last" price quotation on the NASDAQ National Market
System and does not reflect mark-ups, mark-downs, or commissions
and may not represent actual transactions. Prior to June 30,
1997, the Company's Class B common stock traded on the Over-The-
Counter market and was quoted on NASDAQ under the symbol GOSHB.
As of February 10, 1999, there were 1,306 Class A common stock
shareholders of record and 145 Class B common stock shareholders
of record.
ITEM 6. SELECTED FINANCIAL DATA
Financial Highlights
(Dollars in thousands, except per share amounts)
For the Year Ended
January 2, December 31, December 31, December 31, December 31,
1999 1997 1996 1995 1994
Financial results
Net sales $423,232 $395,196 $444,766 $432,266 $363,363
Net income 29,335 22,558 1,119 10,947 7,039
Return on sales 6.9% 5.7% 0.3% 2.5% 1.9%
Financial condition
Working capital $ 76,876 $ 82,762 $104,641 $ 95,414 $101,946
Total assets 162,568 174,788 196,033 208,579 217,211
Shareholders'
equity 103,017 113,157 138,077 150,078 158,814
Data per common share
Net income
Basic $ 1.54 $ 1.02 $ .05 $ .43 $ .25
Diluted 1.52 1.02 .05 .43 .25
Cash dividends
declared
Class A .17 .14 .14 .14 .19
Class B .145 .12 .12 .12 .17
Shareholders'
equity 5.75 5.74 5.86 6.03 5.88
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF
OPERATIONS AND FINANCIAL CONDITION
Results of Operations
The following table sets forth, for the periods indicated,
selected Company income statement data expressed as a percentage
of net sales.
As a Percentage of Net Sales
for the Year Ended
January 2,* December 31,
1999 1997 1996
Net sales 100.0% 100.0% 100.0%
Cost of products sold 60.9% 63.5% 67.6%
Gross profit 39.1% 36.5% 32.4%
Selling, general and
administrative expenses 29.5% 29.2% 27.4%
Special charges -- -- 7.4%
Royalty income, net (2.0%) (2.0%) (1.4%)
Operating income (loss) 11.6% 9.3% (1.0%)
Other income--net 0.1% 0.3% 0.1%
Income (loss) before income taxes 11.7% 9.6% (0.9%)
Income taxes (benefit) 4.8% 3.9% (1.2%)
Net income 6.9% 5.7% 0.3%
* Effective January 1, 1998, the Company changed its fiscal year
to a 52/53 week period ending on the Saturday closest to December
31. Accordingly, the Company's fiscal year 1998 ended January 2,
1999. This change did not have a material impact on the
comparability of the Company's 1998 results of operations with
1997 and 1996.
1998 Compared to 1997
Net Sales
Net sales in 1998 were $423.2 million, a $28.0 million (7.1%)
increase over 1997 net sales of $395.2 million. A summary of the
Company's net sales for the years ended January 2, 1999 and
December 31, 1997 follows:
Net Sales
(in millions)
Domestic
Wholesale Retail International Total
1998 $ 226.1 $ 191.4 $ 5.7 $ 423.2
1997 214.1 173.9 7.2 395.2
Increase (decrease) 12.0 17.5 (1.5) 28.0
Percent increase
(decrease) 5.6% 10.1% (20.8%) 7.1%
The Company's 1998 domestic wholesale unit shipments were up
approximately 7.8% over 1997. The increases in unit shipments
and sales dollars were the result of increased demand for the
Company's fashion and classics product offerings. The Company
currently anticipates relatively flat unit shipments for the
first half of 1999 and a 3% to 5% increase in unit shipments for
the remainder of the year.
The Company's 1998 increased retail sales resulted from a
combination of a 4.9% comparable store sales gain and sales
volume from newly opened stores. Comparable store sales for 1998
were favorably impacted by increased sales of Genuine Girl and
Genuine Blues branded products for the entire period. These
bigger sizes were introduced during the first quarter of 1997.
During 1998, the Company opened 10 factory outlet stores, closed
4 factory outlet stores, and closed 3 showcase stores. At
January 2, 1999, the Company operated 122 domestic OshKosh B'Gosh
retail stores, including 117 factory outlet stores and 5 showcase
stores.
Current Company plans for 1999 call for the addition of
approximately 9 new OshKosh B'Gosh retail stores. For 1999, the
Company currently anticipates low single digit comparable store
sales gains.
Gross Profit
The Company's gross profit margin as a percent of net sales
increased to 39.1% in 1998 compared with 36.5% in 1997. This
gross profit margin improvement was due primarily to continued
implementation and execution of the Company's global sourcing
strategy, improved operating efficiencies at the Company's
domestic sewing facilities, and the Company's continuing focus on
product design and development activities. During 1998,
approximately 42% of units sourced were in the Company's domestic
facilities as compared to 47% in 1997. The Company's current
1999 sourcing plan indicates that approximately 36% of units will
be produced at the Company's domestic facilities.
Selling, General and Administrative Expenses (S,G&A)
The Company's S,G&A expenses for 1998 of $124.8 million were $9.4
million over 1997 S,G&A expenses of $115.4 million. As a percent
of net sales, S,G&A expenses were 29.5% in 1998 as compared to
29.2% in 1997. The primary reasons for these increased expenses
relate to a combination of continued expansion of the Company's
retail operations, increased volume of wholesale unit shipments,
and expansion of the Company's brand enhancing activities.
Special Charges
The Company recorded special charges in 1996 related to the
discontinuance of the Genuine Kids retail store chain, wind-down
of the Company's European subsidiaries and transfer of the
European business to a licensee, closing of three domestic sewing
facilities, and the write-down of the Company's remaining
manufacturing facilities and related assets to management's
estimate of fair value. By January 2, 1999 the Company has
substantially completed the execution of its plan to eliminate
the underperforming elements of the Company's business and the
adjustment of its domestic manufacturing capacity to improve
efficiency. The reserve balance at January 2, 1999 is considered
adequate for the remaining plans and related contingencies.
Royalty Income
The Company licenses the use of its trade name to selected
licensees in the U.S. and in foreign countries. The Company's
net royalty income was $8.2 million in 1998, a $.3 million
increase over 1997 net royalty income of $7.9 million. Royalty
income from domestic licensees was approximately $2.8 million in
1998 as compared to $2.6 million in 1997. Royalty income from
foreign licensees was approximately $5.4 million in 1998 as
compared to $5.3 million in 1997. The Company's 1998 foreign
licensee royalty income was negatively impacted by adverse
economic conditions in Asia and the Company's decision not to
renew its Japanese license arrangement (which ended in March
1998). These adverse conditions were offset by increased royalty
income from the Company's Canadian and European licensees.
The Company currently anticipates an increase in its net royalty
income from licensees in 1999 of approximately 6 to 8%.
Operating Income
As a result of the factors described above, the Company's 1998
operating income improved to $48.9 million. This represents a
32.6% improvement over 1997 operating income of $36.9 million.
Other Income-Net
The Company's 1998 net other income decreased to $.4 million as
compared to $1.3 million in 1997. The Company's interest income
in 1998 was approximately $.9 million lower than in 1997 as a
result of significantly lower cash and short-term investments
carried by the Company in 1998.
Income Taxes
The Company's 1998 effective income tax rate was approximately
40.5% as compared to approximately 41% in 1997. The Company
currently anticipates an effective income tax rate of
approximately 39% for 1999. This anticipated reduction is due
primarily to the implementation of certain planned income
taxation strategies.
Net Income
Net income for the year ended January 2, 1999 of $29.3 million
was a $6.7 million (30%) increase over net income for the year
ended December 31, 1997 of $22.6 million. The Company's ongoing
stock repurchase programs resulted in a reduction in its
weighted-average diluted shares outstanding during 1998. This
decrease, combined with the 30% increase in net income, resulted
in a 49% increase in diluted earnings per share for 1998 of $1.52
as compared to $1.02 in 1997.
1997 Compared to 1996
Net Sales
Net sales in 1997 were $395.2 million, a $49.6 million (11.2%)
decrease as compared to 1996 net sales of $444.8 million. The
Company's 1997 domestic wholesale business of approximately
$214.1 million was $43.0 million (16.7%) less than 1996 sales of
approximately $257.1 million.
Wholesale unit shipments were down approximately 19.2% from 1996
unit shipments. This decrease in unit shipments for 1997
resulted primarily from a combination of the Company's strategic
decision to reduce distribution and a significant reduction in
unit shipments of close-out merchandise. Shipments of first
quality garments during 1997 were down approximately 14.7% as
compared to 1996.
The Company's retail sales at its OshKosh B'Gosh stores of
approximately $173.9 million increased $47.3 million (37.4%) over
1996 sales of $126.6 million. Retail sales in 1996 included
$33.9 million from its Genuine Kids stores. The Company's 1997
increased retail sales at its OshKosh B'Gosh stores resulted from
both the conversion and combination of a total of 22 Genuine Kids
stores in early January 1997, as well as comparable store sales
gains. The 24.5% comparable store sales gain reported in 1997
reflected both an increase in sales of OshKosh B'Gosh branded
products, along with the introduction of an expanded retail
product line to include bigger sizes under the labels Genuine
Girl (girls sizes 7-16) and Genuine Blues (boys sizes 8-16). Net
sales of Genuine labeled products were approximately $22.1
million during 1997, representing approximately 12.7% of total
Company retail sales at Company operated stores.
During 1997, the Company opened 10 OshKosh B'Gosh stores,
converted 15 Genuine Kids stores to OshKosh stores, combined 7
Genuine Kids stores into an existing OshKosh store (the Genuine
Kids store was immediately adjacent to the OshKosh store), closed
6 OshKosh stores and closed the remaining 36 Genuine Kids stores
(all Genuine Kids stores were closed in early January). At
December 31, 1997, the Company operated 119 domestic OshKosh
retail stores, including 111 factory outlet stores and 8 showcase
stores.
Gross Profit
The Company's gross profit margin as a percent of net sales
increased to 36.5% in 1997 compared with 32.4% in 1996. This
gross profit margin improvement was primarily due to continued
implementation and execution of the Company's sourcing strategy,
improved operating efficiencies at the Company's domestic sewing
facilities, and a substantial reduction in the sale of close-out
merchandise during 1997. During 1997, approximately 47% of units
sourced were in the Company's domestic facilities as compared to
65% in 1996.
Selling, General & Administrative Expenses (S,G&A)
The Company's S,G&A expenses for 1997 of $115.4 million were $6.7
million less than 1996 S,G&A expenses of $122.1 million
(excluding special charges). This decrease was directly
attributable to the discontinuance of the Company's direct
operations in Europe, elimination of the Genuine Kids retail
store chain, and decreased volume in the Company's wholesale
business. As a percent of net sales, S,G&A expenses were 29.2%
in 1997 as compared to 27.4% in 1996 (excluding special charges).
The primary reasons for the increased S,G&A expenses as a percent
of net sales were the decrease in 1997 net sales without a
proportionate decrease in the fixed element of the Company's
S,G&A cost structure, combined with the impact of the Company's
increased retail volume and related higher S,G&A costs as
compared to the wholesale business.
Special Charges
During 1996, the Company recorded special charges related to the
discontinuance of the Genuine Kids retail store chain, wind-down
of the Company's European subsidiaries and transfer of the
European business to a licensee, closing of three domestic sewing
facilities, and write-down of the Company's remaining
manufacturing facilities and related assets to management's
estimate of fair value. During 1997, the Company continued to
execute its plan to eliminate underperforming elements of the
Company's business and to adjust its domestic manufacturing
capacity to improve efficiency.
Royalty Income
The Company licenses the use of its trade name to selected
licensees in the U.S. and in foreign countries. The Company's
net royalty income was $7.9 million in 1997, a $1.8 million
increase over 1996 net royalty income of $6.1 million. Royalty
income from domestic licensees was approximately $2.6 million in
1997 as compared to $2.8 million in 1996. Royalty income from
foreign licensees was approximately $5.3 million in 1997 as
compared to $3.3 million in 1996. The Company's 1997 increase in
royalty income related to foreign licensees was due primarily to
the Company's conversion of its European business to a licensee,
along with growth in other foreign markets.
Operating Income
The Company's 1997 operating income of $36.9 million compares to
a 1996 operating loss of $4.6 million. Excluding the impact of
the special charges recorded in 1996, the Company's operating
income was $28.3 million in 1996.
Other Income--Net
The Company's 1997 interest expense decreased to $0.3 million as
compared to $1.1 million in 1996. Interest income increased to
$1.8 million in 1997 as compared to $1.3 million in 1996. The
decrease in interest expense and increase in interest income both
relate to the significantly higher level of cash and short-term
investments carried by the Company throughout the first ten
months of 1997 as compared to 1996.
Income Taxes
The Company's 1997 effective tax rate was approximately 41%. For
1996, the Company recorded a $5.2 million income tax benefit,
which included an approximate $4.5 million income tax benefit
resulting from the recognition of previously unrecorded U.S. tax
benefits related to the discontinuance of the Company's European
subsidiaries. The remaining 1996 tax benefit related to the
Company's net loss from operations.
Net Income
Net income for the year ended December 31, 1997 of $22.6 million
was a $21.5 million increase over net income for the year ended
December 31, 1996 of $1.1 million. Excluding the special charges
recorded by the Company in 1996, the Company's 1997 net income
increase was $6.3 million (38.7%) over 1996. 1997 diluted
earnings per share of $1.02 compares to $.05 per share in 1996.
Seasonality of Business
The Company's business is increasingly seasonal, with highest
sales and income in the third quarter, which is the Company's
peak wholesale shipping period and a major retail selling season
at its retail outlet stores. The Company's second quarter sales
and income are the lowest both because of relatively low domestic
wholesale unit shipments and relatively modest retail outlet
store sales during this period. The Company anticipates this
seasonality trend to continue to impact 1999 quarterly sales and
income.
Year 2000 Considerations
General
The Year 2000 issue involves computer programs and imbedded
microprocessors in computer systems and other equipment that
utilize two digits rather than four digits to define the
applicable year. These systems need to be modified to process
and properly recognize date sensitive information before, on, or
after December 31, 1999. Without modification, these systems may
not properly recognize date sensitive information when the year
changes to 2000 and could generate erroneous data or a system
failure.
State of Readiness
To assess the business risk associated with the Year 2000 issue,
the Company has divided its review into four major areas. These
areas include:
1. Computer hardware and application software programs that
comprise the Company's primary business systems.
2. PC hardware and software, including LANS and servers that
comprise various aspects of the Company's business.
3. Communications with what the Company believes to be all of
its significant customers and vendors regarding the status
of their Year 2000 compliance programs.
4. Other non-information technology aspects of the Company's
business.
The Company has identified three phases of its Year 2000 project
applicable to various portions of the above major areas, which
include a systems inventory of all hardware and programs, problem
assessment, and remediation and testing.
The Company has established a formal Year 2000 compliance project
that addresses the Company's significant business systems. This
project has an internal project leader to coordinate the
inventory, problem assessment, and remediation and testing of the
Year 2000 issues affecting the Company's information and other
business systems.
As of February 1999, the systems inventory, problem assessment,
and approximately 90% of the remediation and testing have been
completed as it relates to the Company's computer hardware and
application software programs. We currently anticipate this
portion of the project will be substantially completed and all of
these systems will be Year 2000 compliant by April 1999.
All the Company's personal computers have been inventoried and
problem assessment has been completed. Based on this assessment,
significant remediation is not necessary, as we do not anticipate
any major problems with our PC based hardware or software as a
result of the Year 2000.
The Company has received confirmation from what it believes to be
all of its significant vendors and customers as to their Year
2000 compliance status and has taken steps to determine the
extent to which the Company's interface systems are vulnerable to
those third parties' failure to remedy their own Year 2000
issues.
The Company has completed the systems inventory and problem
assessment related to all other essential non-information
technology systems, and has initiated appropriate remediation and
testing which is expected to be completed by mid-1999.
Costs
The Company is executing the Year 2000 program primarily with
existing internal resources and some outside consultants. The
Company has and will spend an aggregate of approximately $1
million, of which approximately $.8 million has been incurred
through January 2, 1999, on its remediation efforts. All costs
associated with the Year 2000 compliance are being funded with
cash flow generated from operations and are being expensed as
incurred. These amounts do not have a material impact on the
Company's business, operations, or financial condition.
Risks
At this time, the Company believes that it is adequately
addressing the Year 2000 issues, but there can be no assurance
that the Year 2000 issues will not have a material adverse affect
on the business, financial condition, or results of operations of
the Company. Additionally, disruptions in the economy generally
resulting from the Year 2000 problem could have a material
adverse effect on the Company.
There can be no assurance that the systems of other companies
with which the Company does business will be timely converted, or
that any such failure to upgrade or convert would not have an
adverse effect on the Company's systems and operations.
If the vendors of the Company's most important goods and
services, or suppliers of the Company's necessary energy,
telecommunications and transportation needs fail to provide the
Company with the materials and services which are necessary to
produce, distribute, and sell its products, such failures could
have a materially adverse effect on the result of operations,
liquidity and financial condition of the Company.
Contingency Plans
The Company presently believes that the Year 2000 issue will not
pose significant operational problems for its computer systems.
The Company does plan to have its personnel "standing by" at the
end of the year to resolve any potential problems as rapidly as
possible. These problems are expected to be minimal.
Financial Position, Capital Resources and Liquidity
The Company's financial position remains strong, as demonstrated
by its balance sheet. At January 2, 1999, the Company's cash,
cash equivalents and short-term investments were $16.8 million,
compared to $22.5 million at the end of 1997. This reduction is
attributable to the Company's stock repurchases, offset in part
by cash generated from operations. Net working capital at
January 2, 1999 was $76.9 million compared to $82.8 million at
December 31, 1997, and $104.6 million at December 31, 1996.
Accounts receivable at January 2, 1999 were $24.0 million
compared to $23.3 million at December 31, 1997. Inventories at
January 2, 1999 were $65.6 million, compared to $68.2 million at
the end of 1997. Management believes that January 2, 1999
inventory levels are generally appropriate for anticipated 1999
business activities.
Cash provided by operations amounted to approximately $42.2
million in 1998, compared to $35.9 million in 1997 and $55.6
million in 1996. The increase in cash provided by operating
activities in 1998 over 1997 is primarily attributable to
improved net income. The decrease in cash provided by operating
activities in 1997 compared to 1996 is primarily attributable to
decreased inventory levels during 1996.
Cash used in investing activities totaled $2.2 million in 1998,
compared to $6.5 million in 1997, and $13.3 million in 1996.
Capital expenditures were $11.4 million in 1998, compared with
$6.6 million in 1997 and $7.3 million in 1996 and are currently
budgeted at $9.6 million for 1999. The increase in capital
expenditures in 1998 over 1997 and 1996 is primarily due to the
Company's upgrade of its distribution systems and Whitehouse,
Tennessee distribution facilities. These capital expenditures
were offset by reductions in the levels of short-term
investments. Depreciation and amortization are currently budgeted
at $9.0 million for 1999.
Cash used in financing activities totaled $39.5 million in 1998,
compared to $46.9 million in 1997, and $13.5 million in 1996.
The Company's primary financing activities consisted of stock
repurchase transactions and dividends.
On August 10, 1998, the Company's Board of Directors authorized a
two-year, $60 million repurchase program of the Company's Class A
common stock. During 1998, the Company repurchased 1,343,900
shares of its Class A common stock under this program for
approximately $27.3 million. For all of 1998, the Company
repurchased 1,888,500 shares of its Class A common stock under
its current and prior repurchase programs for approximately $37.6
million.
In August 1997 the Company purchased approximately 3,313,000
shares of its Class A common stock and approximately 84,000
shares of its Class B common stock under the terms of its Dutch
auction tender offer for approximately $37.7 million. Under the
terms of the Dutch auction tender offer, all shares were
purchased at $11 per share. For all of 1997, the Company
repurchased approximately 3,796,000 shares of its Class A common
stock and approximately 84,000 shares of its Class B common stock
under all of its authorized repurchase programs for approximately
$44 million.
On August 10, 1998 the Company's Board of Directors declared a
two-for-one stock split for Class A and Class B common stock,
effected in the form of a stock dividend.
Dividends on the Company's Class A and Class B common stock
totaled $.17 per share and $.145 per share, respectively, in 1998
and $.14 per share and $.12 per share, respectively, in 1997.
The Company has a credit agreement with participating banks.
This arrangement provides a $60 million revolving credit facility
and a $40 million revocable demand line of credit for cash
borrowings, issuance of commercial paper and letters of credit.
The Company had no outstanding long-term debt at January 2, 1999
or December 31, 1997. The agreement expires in June, 2001. The
Company believes that these credit facilities, along with cash
generated from operations, will be sufficient to finance the
Company's seasonal working capital needs as well as its capital
expenditures, remaining special charges, and business development
needs.
Inflation
The effects of inflation on the Company's operating results and
financial condition were not significant.
FORWARD-LOOKING STATEMENTS
This report contains certain "forward-looking statements" within
the meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act of 1934,
as amended. In addition, from time to time the Company may issue
press releases and other written communications, and
representatives of the Company may make oral statements, which
contain forward-looking information. Except for historical
information, matters discussed in such oral and written
communications, including this report, are forward-looking
statements. Such forward-looking statements are based on current
assumptions and expectations that involve risks and
uncertainties. Actual results may differ materially.
The Company's future results of operations and financial position
can be influenced by such factors as the level of consumer
spending for apparel, particularly in the children's wear
segment, overall consumer acceptance of the Company's product
styling, the financial strength of the retail industry,
including, but not limited to, business conditions and the
general economy, natural disasters, competitive factors, risk of
non-payment of accounts receivable, the unanticipated loss of a
major customer, failure of Company suppliers to timely deliver
needed raw materials, Year 2000 issues, particularly with respect
to the Company's vendors and customers, as well as risk
associated with foreign operations. In addition, the inability
to ship Company products within agreed timeframes due to
unanticipated manufacturing delays or the failure of Company
contractors to deliver products within scheduled timeframes, are
risk factors in ongoing business. As a part of the Company's
product sourcing strategy, it routinely contracts for apparel
products produced by contractors in Asia. If the current
financial and related difficulties were to adversely impact the
Company's contractors in the Asian region, it could disrupt the
supply of products contracted for by the Company.
The forward-looking statements included herein are only made as
of the date of this report. The Company undertakes no obligation
to publicly update such forward-looking statements to reflect
subsequent events or circumstances.
ITEM 7A. Qualitative and Quantitative Disclosures about Market Risk
The registrant does not believe it has material exposure to
market risk with respect to any of its investments; the
registrant does not utilize market rate sensitive instruments for
trading or other purposes. For information regarding the
Company's investments, refer to the "Cash equivalents" and
"Short-term investments" notes to the consolidated financial
statements of this Form 10-K.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Page
Financial Statements:
Report of Independent Auditors 27
Consolidated Balance Sheets - January 2, 1999 and
December 31, 1997 28
Consolidated Statements of Income - year ended
January 2, 1999 and years ended December 31, 1997
and 1996 29
Consolidated Statements of Changes in Shareholders'
Equity - year ended January 2, 1999
and years ended December 31, 1997 and 1996 30
Consolidated Statements of Cash Flows - year ended
January 2, 1999 and years ended December 31, 1997
and 1996 31
Notes to Consolidated Financial Statements 32
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors
OshKosh B'Gosh, Inc. and Subsidiaries
We have audited the accompanying consolidated balance sheets of
OshKosh B'Gosh, Inc. and subsidiaries (the Company) as of January
2, 1999 and December 31, 1997 and the related consolidated
statements of income, changes in shareholders' equity and cash
flows for each of the three years in the period ended January 2,
1999. Our audits also included the financial statement schedule
listed in the Index at Item 14(a). These financial statements
and schedule are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial
statements and schedule based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining on a test basis, evidence supporting the
amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the consolidated
financial position of the Company at January 2, 1999 and December
31, 1997, and the consolidated results of its operations and its
cash flows for each of the three years in the period ended
January 2, 1999, in conformity with generally accepted accounting
principles. Also, in our opinion, the related financial
statement schedule, when considered in relation to the basic
financial statements taken as a whole, presents fairly, in all
material respects, the information set forth therein.
ERNST & YOUNG LLP
Milwaukee, Wisconsin
January 29, 1999
OSHKOSH B'GOSH, INC. AND SUBSIDIARIES
Consolidated Balance Sheets
(Dollars in thousands, except per share amounts)
January 2, 1999 December 31, 1997
ASSETS
Current assets
Cash and cash equivalents $ 14,308 $ 13,779
Short-term investments 2,500 8,700
Accounts receivable, less allowances
of $4,240 in 1998 and $4,225 in 1997 24,008 23,278
Inventories 65,584 68,226
Prepaid expenses and other current assets 862 1,265
Deferred income taxes 16,700 15,800
Total current assets 123,962 131,048
Property, plant and equipment, net 32,380 32,955
Deferred income taxes 4,900 5,500
Other assets 1,326 5,285
Total assets $ 162,568 $ 174,788
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Accounts payable $ 7,638 $ 10,273
Accrued liabilities 39,448 38,013
Total current liabilities 47,086 48,286
Employee benefit plan liabilities 12,465 13,345
Commitments -- --
Shareholders' equity
Preferred stock, par value $.01
per share:
Authorized-1,000,000 shares;
Issued and outstanding-None -- --
Common stock, par value $.01
per share:
Class A, authorized-30,000,000
shares;
Issued and outstanding-
15,668,859 shares
in 1998, 17,345,806 shares
in 1997 157 173
Class B, authorized-3,750,000
shares;
Issued and outstanding-
2,260,522 shares
in 1998, 2,364,564 shares in 1997 23 24
Retained earnings 102,837 112,960
Total shareholders' equity 103,017 113,157
Total liabilities and shareholders' equity $ 162,568 $ 174,788
See notes to consolidated financial statements.
OSHKOSH B'GOSH, INC. AND SUBSIDIARIES
Consolidated Statements of Income
(Dollars in thousands, except per share amounts)
For the Year Ended
January 2, December 31, December 31,
1999 1997 1996
Net sales $ 423,232 $ 395,196 $ 444,766
Cost of products sold 257,700 250,815 300,495
Gross profit 165,532 144,381 144,271
Selling, general and administrative
expenses 124,798 115,439 122,055
Special charges and plant closings -- -- 32,900
Royalty income, net (8,186) (7,945) (6,100)
Operating income (loss) 48,920 36,887 (4,584)
Other income (expense):
Interest expense (399) (305) (1,088)
Interest income 871 1,797 1,326
Miscellaneous (67) (192) 249
Other income - net 405 1,300 487
Income (loss) before income taxes 49,325 38,187 (4,097)
Income taxes (benefit) 19,990 15,629 (5,216)
Net income $ 29,335 $ 22,558 $ 1,119
Net income per common share
Basic $ 1.54 $ 1.02 $ .05
Diluted 1.52 1.02 .05
See notes to consolidated financial statements.
<TABLE>
OSHKOSH B'GOSH, INC. AND SUBSIDIARIES
Consolidated Statements of Changes in Shareholders' Equity
(Dollars and shares in thousands, except per share amounts)
<CAPTION>
Accumulated
Common Stock Additional Other
Class A Class B Paid-In Retained Comprehensive
Shares Amount Shares Amount Capital Earnings Income
<S> <C> <C> <C> <C> <C> <C> <C>
Balance - December 31, 1995 22,380 $224 2,532 $ 25 $ -- $ 149,596 $ 233
Net income -- -- -- -- -- 1,119 --
Dividends
-Class A ($.14 per share) -- -- -- -- -- (3,091) --
-Class B ($.12 per share) -- -- -- -- -- (303) --
Foreign currency translation
adjustments -- -- -- -- -- -- 377
Conversions of common shares 10 -- (10) -- -- -- --
Stock options exercised 6 -- -- -- 45 -- --
Repurchase and retirement of
common shares,net (1,346) (13) -- -- (45) (10,090) --
Balance - December 31, 1996 21,050 211 2,522 25 -- 137,231 610
Net income -- -- -- -- -- 22,558 --
Dividends
- Class A ($.14 per share) -- -- -- -- -- (2,698) --
- Class B ($.12 per share) -- -- -- -- -- (293) --
Foreign currency translation
adjustments -- -- -- -- -- -- (610)
Conversions of common shares 74 -- (74) -- -- -- --
Stock options exercised 18 -- -- -- 126 -- --
Repurchase and retirement of
common shares (3,796) (38) (84) (1) (126) (43,838) --
Balance - December 31, 1997 17,346 173 2,364 24 -- 112,960 --
Net income -- -- -- -- -- 29,335 --
Dividends
- Class A ($.17 per share) -- -- -- -- -- (2,850) --
- Class B ($.145 per share) -- -- -- -- -- (337) --
Conversions of common
shares 104 1 (104) (1) -- -- --
Stock options exercised 110 1 -- -- 779 -- --
Income tax benefit from stock
options exercised (2) -- -- -- 550 -- --
Repurchase and retirement of
common shares (1,889) (18) -- -- (1,329) (36,271) --
Balance - January 2, 1999 15,669 $157 2,260 $ 23 $ -- $ 102,837 $ --
</TABLE>
See notes to consolidated financial statements.
OSHKOSH B'GOSH, INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows
(Dollars in thousands)
For the Year Ended
January 2, December 31, December 31,
1999 1997 1996
Cash flows from operating activities
Net income $ 29,335 $ 22,558 $ 1,119
Adjustments to reconcile net income
to net cash provided by operating
activities:
Depreciation 8,776 12,301 10,998
Amortization 630 707 712
Loss on disposal of assets 160 275 242
Deferred income taxes (300) 600 (13,200)
Benefit plan expense, net of
contributions (880) (318) 1,827
Special charges and plant closings -- -- 32,900
Changes in operating assets
and liabilities:
Accounts receivable (730) (2,774) 4,187
Inventories 2,642 (1,427) 28,944
Prepaid expenses and other
current assets 403 625 1,237
Accounts payable (2,635) 4,865 (8,502)
Accrued liabilities 4,840 (1,482) (4,847)
Net cash provided by operating activities 42,241 35,930 55,617
Cash flows from investing activities
Additions to property, plant and
equipment (11,420) (6,602) (7,274)
Proceeds from disposal of assets 3,054 2,853 3,246
Sale (purchase) of short-term
investments, net 6,200 1,340 (10,040)
Changes in other assets (71) (4,075) 731
Net cash used in investing activities (2,237) (6,484) (13,337)
Cash flows from financing activities
Dividends paid (3,187) (2,991) (3,394)
Net proceeds from issuance of
common shares 1,330 126 45
Repurchase of common shares (37,618) (44,003) (10,148)
Net cash used in financing activities (39,475) (46,868) (13,497)
Net increase (decrease) in cash
and cash equivalents 529 (17,422) 28,783
Cash and cash equivalents at
beginning of year 13,779 31,201 2,418
Cash and cash equivalents at end
of year $ 14,308 $ 13,779 $ 31,201
Supplementary disclosures
Cash paid for interest $ 224 $ 178 $ 948
Cash paid for income taxes $ 20,112 $ 13,565 $ 5,213
See notes to consolidated financial statements.
OSHKOSH B'GOSH, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share amounts)
Note 1. Significant accounting policies
Business - OshKosh B'Gosh, Inc. and its wholly-owned
subsidiaries (the Company) are engaged primarily in the
design, sourcing, and marketing of apparel to wholesale
customers and through Company owned retail stores.
Principles of consolidation - The consolidated financial
statements include the accounts of all wholly-owned subsidiaries.
All significant intercompany accounts and
transactions have been eliminated in consolidation.
Cash equivalents - Cash equivalents consist of highly
liquid debt instruments such as money market accounts and
commercial paper with original maturities of three months
or less. The Company's policy is to invest cash in
conservative instruments as part of its cash management
program and to evaluate the credit exposure of any
investment. Cash equivalents are stated at cost, which
approximates market value.
Short-term investments - Short-term investments are
classified as available-for-sale securities and are highly
liquid debt instruments. These securities have a put
option feature that allows the Company to liquidate the
investments at their discretion and are backed by a letter
of credit from financial institutions. These investments
are stated at cost, which approximates market value.
Inventories - Inventories are stated at the lower of cost
or market. Inventories stated on the last-in, first-out
(LIFO) basis represent 99.1% of total 1998 and 99.8% of
total 1997 inventories. Remaining inventories are valued
using the first-in, first-out (FIFO) method.
Property, plant, and equipment - Property, plant, and
equipment are carried at cost or at management's estimate
of fair market value if considered impaired under the
provisions of Statement of Financial Accounting Standards
(SFAS) No. 121, "Accounting for the Impairment of Long-
Lived Assets and for Long-Lived Assets to be Disposed Of."
Depreciation and amortization for financial reporting
purposes are calculated using the straight-line method
based on the following useful lives:
Years
Land improvements 10 to 15
Buildings 10 to 40
Leasehold improvements 5 to 10
Machinery and equipment 3 to 10
Revenue recognition - Revenue within wholesale operations
is recognized at the time merchandise is shipped to
customers. Retail store revenues are recognized at the
time of sale.
Use of estimates - The preparation of financial statements
in conformity with generally accepted accounting
principles requires management to make estimates and
assumptions that affect the amounts reported in the
financial statements and accompanying notes. Actual
results could differ from those estimates.
Advertising - Advertising costs are expensed as incurred
and totaled $12,377, $11,165, and $11,448, in 1998, 1997,
and 1996, respectively.
Earnings per share - The numerator for the calculation of
basic and diluted earnings per share is net income. The
denominator is computed as follows (in thousands):
1998 1997 1996
Denominator for basic earnings per share-
weighted average shares 19,072 22,033 24,678
Employee stock options (treasury
stock method) 289 151 16
Denominator for diluted earnings per share 19,361 22,184 24,694
Fiscal year - Beginning in 1998, the Company adopted a
change in its fiscal year from a calendar year to a 52/53
week year ending on the Saturday closest to December 31.
Fiscal 1998, which included 52 weeks and three days, ended
on January 2, 1999. Fiscal 1997 and 1996 were calendar
years ended on December 31. All references to years in
this report refer to the fiscal years described above.
Impact of recently issued accounting standards - In
February 1998, the FASB issued SFAS No. 132, "Employers'
Disclosures about Pensions and Other Postretirement
Benefits" which revises employers' disclosures about
pension and other postretirement benefit plans. SFAS No.
132 does not change the measurement or recognition of
those plans. For the year ended January 2, 1999, the
Company adopted SFAS No. 132 and its disclosures for all
periods included herein.
In June 1997, the FASB issued SFAS No. 130 "Reporting
Comprehensive Income," which establishes standards for
reporting and display of comprehensive income and its
components in a full set of general purpose financial
statements. The Company has adopted SFAS No. 130
effective January 1, 1998. However, adoption of SFAS No.
130 had no impact on the Company's net income or
shareholders' equity in 1998. Comprehensive income
equaled net income in 1998. Comprehensive income totaled
$21,948 and $1,496 in 1997 and 1996, respectively. The
difference between net income and comprehensive income
represents foreign currency translation adjustments.
Reclassifications - Certain prior year amounts have been
reclassified to conform with the current year
presentation.
Note 2. Special charges
In 1996, the Company recorded special charges related to
the discontinuance of the Company's Genuine Kids retail
store chain, wind-down of the Company's European
subsidiaries and transfer of the European business to a
licensee, closing its Red Boiling Springs, Tennessee,
Celina, Tennessee, and Columbia, Kentucky sewing
facilities and asset impairments related to excess
manufacturing capacity. These special charges totaled
$32,900, which amounted to $15,200 ($.62 per share) net of
tax benefits.
These special charges include $6,400 in severance and
related benefits for the 1,600 affected employees, $2,000
related to inventory disposals, $6,900 related to other
exit costs including lease settlements and costs to
dispose of other operating assets, and $17,600 in asset
impairments related to unamortized retail leasehold
improvements and excess manufacturing space. The Company
has sold substantially all of its excess manufacturing
space.
The wind-down of the European entities permitted the
recognition of certain U.S. tax deductions previously
unrecognized, resulting in an approximate $4,500 income
tax benefit. This income tax benefit, along with the
$13,200 income tax benefit resulting from the special
charges, reduced the net impact on Company earnings in
1996 by $17,700.
Through 1998, approximately $10,900 of severance and other
exit costs have been incurred to complete substantially
all of the strategic changes related to these special
charges. The reserve at January 2, 1999 is considered
adequate for remaining plans and related contingencies.
Note 3. Inventories
A summary of inventories follows:
January 2, December 31,
1999 1997
Finished goods $ 55,005 $ 49,400
Work in process 9,333 14,782
Raw materials 1,246 4,044
Total $ 65,584 $ 68,226
The replacement cost of inventory exceeds the above LIFO costs by
$13,899 and $14,138 at January 2, 1999 and December 31, 1997, respectively.
Partial liquidation of certain LIFO layers in 1998, 1997 and 1996
increased net income by approximately $391, $577 and $660, respectively.
Note 4. Property, plant and equipment
A summary of property, plant, and equipment follows:
January 2, December 31,
1999 1997
Land and improvements $ 3,246 $ 3,677
Buildings 13,822 15,035
Leasehold improvements 14,659 14,036
Machinery and equipment 33,861 27,630
Construction in progress -- 1,814
Total 65,588 62,192
Less: accumulated depreciation and amortization 33,208 29,237
Property, plant and equipment, net $ 32,380 $ 32,955
Note 5. Lines of credit
The Company maintains an unsecured credit agreement with a
number of banks which provides a $60,000 revolving credit
facility and a $40,000 revocable demand line of credit for
cash borrowings, issuance of commercial paper, and letters
of credit.
All borrowing and commercial paper issues under this
agreement are supported by the revolving credit facility
which expires in June, 2001.
Under the terms of the agreement, interest rates are
determined at the time of borrowing and are based on
London Interbank Offered Rates plus .625% or the prime
rate. Commitment fees of .125% are required on the
revolving credit facility. The Company is required to
maintain certain financial ratios in connection with this
agreement.
There were no outstanding borrowings against these credit
arrangements at January 2, 1999. Letters of credit of
approximately $21,000 were outstanding at January 2, 1999,
with $79,000 of the unused credit facilities available for
borrowing.
Note 6. Accrued liabilities
A summary of accrued liabilities follows:
January 2, December 31,
1999 1997
Compensation $ 5,051 $ 4,526
Workers' compensation 10,250 10,250
Income taxes 6,627 6,936
Restructuring costs 4,032 7,938
Other 13,488 8,363
Total $ 39,448 $ 38,013
Note 7. Leases
The Company leases certain property and equipment
including retail sales facilities and regional sales
offices under operating leases. Certain leases provide the
Company with renewal options. Leases for retail sales
facilities provide for minimum rentals plus contingent
rentals based on sales volume.
Minimum future rental payments under noncancellable
operating leases are as follows:
Fiscal Year
1999 $ 11,458
2000 9,365
2001 6,869
2002 5,288
2003 3,632
Thereafter 4,129
Total minimum lease payments $ 40,741
Total rent expense charged to operations for all operating
leases is as follows:
1998 1997 1996
Minimum rentals $ 16,352 $ 15,005 $ 17,691
Contingent rentals 961 800 493
Total rent expense $ 17,313 $ 15,805 $ 18,184
Note 8. Income taxes
Income tax expense (benefit) is comprised of the
following:
1998 1997 1996
Current:
Federal $ 16,666 $ 12,396 $ 7,224
State and local 3,624 2,633 760
20,290 15,029 7,984
Deferred (300) 600 (13,200)
Total $ 19,990 $ 15,629 $ (5,216)
Deferred tax assets and liabilities relate to temporary
differences between the financial reporting and income tax
basis of Company assets and liabilities, and include the
following components:
January 2, December 31,
1999 1997
[Assets (Liabilities)]
Current deferred taxes
Accounts receivable allowances $ 1,225 $ 1,026
Inventory valuation 4,964 5,112
Accrued liabilities 6,584 5,412
Restructuring costs 2,052 3,670
Valuation reserves and other 1,875 580
Total net current deferred tax assets $ 16,700 $ 15,800
Non-current deferred taxes
Depreciation $ 61 $ (115)
Deferred employee benefits 4,940 5,259
Trademark 501 498
Other (602) (142)
Total net non-current deferred tax
assets $ 4,900 $ 5,500
For financial reporting purposes, income (loss) before
income taxes includes the following components:
1998 1997 1996
Income (loss) before income taxes:
United States $ 48,265 $ 37,263 $ 6,308
Foreign 1,060 924 (10,405)
Total $ 49,325 $ 38,187 $ (4,097)
A reconciliation of the federal statutory income tax rate
to the effective tax rates reflected in the consolidated
statements of income follows:
1998 1997 1996
Federal statutory tax rate 35.0% 35.0% (35.0)%
Differences resulting from:
State and local income taxes, net of federal
income tax benefit 4.6 4.7 (4.6)
Tax effect of foreign losses -- -- 13.6
U.S. tax deductions related to European
subsidiaries -- -- (109.8)
Other .9 1.2 8.5
Total 40.5% 40.9% (127.3)%
As discussed in Note 2, the wind down of the Company's
European subsidiaries permitted the recognition of certain U.S. tax
deductions previously unrecognized, resulting in a 1996 income tax benefit of
approximately $4,500.
Note 9. Retirement plans
The Company has defined contribution and defined benefit
pension plans covering substantially all employees.
Charges to operations by the Company for these plans
totaled $3,017, $2,950, and $3,795 for 1998, 1997, and
1996, respectively.
Defined benefit plans
The Company sponsors several defined benefit pension
plans covering certain hourly and salaried employees.
The Company also sponsors an unfunded defined benefit
postretirement health insurance plan that covers
qualifying salaried employees.
The actuarial computations utilized the following
assumptions as applicable for each plan:
1998 1997 1996
Discount rate 6.5% 7.0% 7.5%
Expected long-term rate of return on assets 9.0% 9.0% 8.0%
Rates of increase in compensation levels 0-4.5% 0-4.5% 0-4.5%
The assumed health care cost trend rate used in measuring
the accumulated postretirement benefit obligation was 12%, declining
gradually to 6% by 2012 and then declining further to an ultimate rate
of 4% by 2022.
Net periodic pension cost was comprised of:
1998 1997 1996
Service cost $ 2,052 $ 1,685 $ 2,315
Interest cost 2,006 2,004 2,230
Expected return on plan assets (2,531) (2,123) (1,950)
Amortization of prior service cost 347 457 587
Amortization of transition obligation (156) (156) (164)
Recognized actuarial (gain) loss (401) (165) 2
Net periodic pension cost $ 1,317 $ 1,702 $ 3,020
In conjunction with the special charges discussed in Note
2, the Company curtailed defined benefit plans for the
affected plants in 1996 and settled the plan obligations
in 1997. Curtailment and settlement costs of
approximately $655 are included in the special charges
originally recorded in 1996.
Net periodic postretirement benefit cost was comprised of:
1998 1997 1996
Service cost $ 12 $ 117 $ 78
Interest cost 25 90 84
Net amortization and deferral (98) (4) (8)
Net periodic postretirement (benefit) cost $ (61) $ 203 $ 154
A reconciliation of changes in benefit obligation and plan
assets follows:
Pension Benefits Postretirement Benefits
1998 1997 1998 1997
Change in benefit obligation
Benefit obligation at
beginning of year $ 31,252 $ 31,338 $ 1,448 $ 1,217
Service cost 2,052 1,685 12 117
Interest cost 2,006 2,004 25 90
Amendments 30 -- -- --
Actuarial (gain) loss 764 1,207 (1,068) 66
Pension settlement -- 455 -- --
Benefits paid (1,603) (5,437) (34) (42)
Benefit obligation at
end of year 34,501 31,252 383 1,448
Change in plan assets
Fair value of plan assets at
beginning of year 27,864 26,074 -- --
Actual return on plan assets 2,188 4,444 -- --
Company contributions 416 2,783 34 42
Benefits paid (1,603) (5,437) (34) (42)
Fair value of plan assets at
end of year 28,865 27,864 -- --
Funded status
Funded status of plan
(underfunded) (5,636) (3,388) (383) (1,448)
Unrecognized net actuarial loss (4,599) (6,106) (1,149) (180)
Unrecognized prior service cost 2,514 2,831 -- --
Unrecognized transition
obligation (771) (927) -- --
Prepaid accrued benefit cost $ (8,492) $ (7,590) $ (1,532) $ (1,628)
Amounts recognized in the consolidated balance sheets:
Pension Benefits Postretirement Benefits
1998 1997 1998 1997
Accrued benefit liability $ (8,940) $ (8,684) $ (1,532) $ (1,628)
Prepaid benefit cost 448 1,094 -- --
$ (8,492) $ (7,590) $ (1,532) $ (1,628)
Amounts applicable to the Company's pension plans with projected
benefit obligations in excess of plan assets are as follows:
January 2, December 31,
1999 1997
Projected benefit obligations $ 33,244 $ 26,604
Accumulated benefit obligations $ 24,600 $ 16,604
Fair value of plan assets $ 27,582 $ 22,940
Amounts applicable to the Company's pension plans with accumulated
benefit obligations in excess of plan assets are as follows:
January 2, December 31,
1999 1997
Projected benefit obligations $ 6,744 $ 2,156
Accumulated benefit obligations $ 5,768 $ 1,247
Fair value of plan assets $ 4,134 $ --
The assumed health care cost trend rate has a significant
effect on the amounts reported. A one-percentage-point
change in the assumed health care cost trend rate would
have the following effects:
1-Percentage 1-Percentage
Point Increase Point Decrease
Effect on total of service and
interest cost components for 1998 $ 229 $ (182)
Effect on postretirement benefit
obligation as of January 2, 1999 $ 1,438 $ (1,522)
Defined contribution plans
The Company maintains a defined contribution retirement
plan covering certain salaried employees. Annual
contributions are discretionary and are determined by the
Company's Executive Committee. Charges to operations by
the Company for contributions under this plan totaled
$1,179, $828, and $627 for 1998, 1997, and 1996,
respectively.
In 1996, the Company initiated a profit-sharing plan
covering certain salaried and hourly employees pursuant to
Section 401(k) of the Internal Revenue Code, whereby
participants may contribute a percentage of compensation,
but not in excess of the maximum allowed under the Code.
The plan provides for a matching contribution by the
Company which amounted to approximately $413, $376 and $89
for 1998, 1997, and 1996, respectively.
The Company also has a supplemental retirement program
for designated employees. Annual provisions to this
unfunded plan are discretionary and are determined by the
Company's Executive Committee. Charges to operations by
the Company for additions to this plan totaled $108, $44
and $59 for 1998, 1997, and 1996, respectively.
Deferred employee benefit plans
The Company has deferred compensation and supplemental
retirement arrangements with certain key officers.
Note 10. Common stock
The Company maintains a stock conversion plan whereby
shares of Class B common stock may be converted to an
equal number of Class A common shares.
The Company's common stock authorization provides that
dividends be paid on both the Class A and Class B common
stock at any time that dividends are paid on either.
Whenever dividends (other than dividends of Company
stock) are paid on the common stock, each share of Class
A common stock is entitled to receive 115% of the
dividend paid on each share of Class B common stock.
The Class A common stock shareholders are entitled to
receive a liquidation preference of $1.875 per share
before any payment or distribution to holders of the
Class B common stock. Thereafter, holders of the Class B
common stock are entitled to receive $1.875 per share
before any further payment or distribution to holders of
the Class A common stock. Thereafter, holders of the
Class A common stock and Class B common stock share on a
pro rata basis in all payments or distributions upon
liquidation, dissolution, or winding up of the Company.
The Class A common stock shareholders have the right to
elect or remove, as a class, 25% of the entire board of
directors of the Company. Class B common stock
shareholders are entitled to elect or remove, as a class,
the other 75% of the directors (subject to any rights
granted to any series of preferred stock) and are
entitled to one vote per share on all matters (including
an increase or decrease in the unissued authorized
capital stock of any class) presented to the shareholders
for vote.
On August 10, 1998, the Company's Board of Directors
authorized a two-year, $60,000 repurchase program of the
Company's Class A common stock. During 1998, the Company
repurchased 1,343,900 shares of its Class A common stock
under this program for approximately $27,300. For all of
1998, the Company repurchased 1,888,500 shares of its
Class A common stock under its current and prior
repurchase programs for approximately $37,600.
In August, 1997 the Company purchased approximately
3,313,000 shares of its Class A common stock and
approximately 84,000 shares of its Class B common stock
under the terms of its Dutch auction tender offer for
approximately $37,700. Under the terms of the Dutch
auction tender offer, all shares were purchased at $11
per share. For all of 1997, the Company repurchased
approximately 3,796,000 shares of its Class A common
stock and approximately 84,000 shares of its Class B
common stock under all of its authorized repurchase
programs for approximately $44,000.
For all of 1996, the Company repurchased approximately
1,346,000 shares of its Class A common stock under
authorized repurchase programs for approximately $10,100.
On August 10, 1998 the Company's Board of Directors
declared a two-for-one stock split for Class A and Class
B common stock, effected in the form of a stock dividend.
Shareholders' equity and all share and per share data
have been restated to reflect this dividend.
The Company has elected to follow Accounting Principles
Board (APB) Opinion No. 25, "Accounting for Stock Issued
to Employees," in accounting for its employee stock
options. Under APB No. 25, because the exercise price of
the Company's employee stock options equals the market
price of the underlying stock on the date of grant and
the number of shares granted is fixed, no compensation
expense is recognized.
The Company's 1994 Incentive Stock Option Plan has
authorized the grant of options to management personnel
and directors for up to 2,940,000 shares of the Company's Class
A common stock. As of January 2, 1999, 1,605,400 shares
are available for grant. Options granted generally have
10 year terms and vest ratably over a four year period
following date of grant.
The following pro forma information regarding net income
and net income per share required by SFAS No. 123,
"Accounting for Stock Based Compensation," has been
determined as if the Company had accounted for its
employee stock options under the fair value method of
that statement. The fair value for these options was
estimated at the date of grant using a Black-Scholes
option pricing model with the following weighted-average
assumptions for 1998, 1997, and 1996, respectively: risk-
free interest rates of 5.57%, 6.42%, and 5.81%;
dividends of $.20 in 1998 and $.14 in 1997 and 1996;
volatility factors of the expected market price of the
Company's common stock of .472, .406, and .409; and a
weighted-average expected life of the option of
approximately 8 years. Changes in these subjective
assumptions can significantly affect the fair value
calculations.
The estimated fair value of the options is amortized to
expense over the options' vesting period:
1998 1997 1996
Net income as reported $ 29,335 $ 22,558 $ 1,119
Pro forma net income 28,560 22,230 880
Net income per share as reported
Basic 1.54 1.02 .05
Diluted 1.52 1.02 .05
Pro forma net income per share
Basic 1.50 1.01 .04
Diluted 1.48 1.00 .04
A summary of the Company's stock option activity and
related information follows:
1998 1997 1996
Options Weighted- Options Weighted- Options Weighted-
(000) average (000) average (000) average
exercise exercise exercise
price price price
Outstanding-
beginning
of year 864 $ 8 604 $ 7 312 $ 7
Granted 347 19 340 8 324 8
Exercised (110) 8 (18) 8 (6) 7
Forfeited (19) 13 (62) 8 (26) 7
Outstanding-
end of
year 1,082 $ 11 864 $ 8 604 $ 7
Exerciseable
at end
of year 370 $ 8 206 $ 8 90 $ 7
Weighted-average
fair value
of options
granted
during year $ 7.25 $ 2.47 $ 2.56
Options outstanding Options exerciseable
Weighted- Weighted- Weighted-
average average average
Range of Number remaining exercise Number exercise
exercise prices outstanding contract life price outstanding price
$ 7 to $ 9 744 7.3 $ 8 370 $ 8
$ 18 to $ 20 338 9.1 19 -- --
1,082 370
Note 11. Business and credit concentrations
The Company operates principally in one segment: the
design, sourcing, and marketing of apparel. Operations
of the Company occur primarily within the United States
and its customers are not concentrated in any geographic
region.
The Company provides credit, in the normal course of
business, to department and specialty stores. The
Company performs ongoing credit evaluations of its
customers and maintains allowances for potential credit
losses.
In 1998 and 1997, sales to a wholesale customer, as a
percentage of net sales, amounted to approximately 12%
and 11%, respectively.
Note 12. Litigation
The Company is subject to various legal actions and
proceedings in the normal course of business. Although
litigation is subject to many uncertainties and the
ultimate exposure with respect to these matters cannot be
ascertained, management does not believe the final
outcome will have a significant effect on the
consolidated financial statements.
ITEM 9. DISAGREEMENTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this item is incorporated by reference
to the definitive Proxy Statement of OshKosh B'Gosh, Inc. for its annual
meeting to be held on May 7, 1999.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item is incorporated by reference
to the definitive Proxy Statement of OshKosh B'Gosh, Inc. for its
annual meeting to be held on May 7, 1999.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The information required by this item is incorporated by reference
to the definitive Proxy Statement of OshKosh B'Gosh, Inc. for its
annual meeting to be held on May 7, 1999.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this item is incorporated by reference
to the definitive Proxy Statement of OshKosh B'Gosh, Inc. for
its annual meeting to be held on May 7, 1999.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULE, AND REPORTS ON
FORM 8-K
(a) (1) Financial Statements
Financial statements for OshKosh B'Gosh, Inc. listed in
the Index to Financial Statements and Supplementary
Data are filed as part of this Annual Report.
(2) Financial Statement Schedule:
Schedule II - Valuation and Qualifying Accounts
Schedules not included have been omitted because they
are not applicable, immaterial, or the required
information is included in the consolidated financial
statements or notes thereto.
(3) Index to Exhibits
(b) Reports on Form 8-K
None
(c) Exhibits
3.1 Certificate of Incorporation of OshKosh B'Gosh,
Inc., as restated, May 7, 1993, previously
filed as Exhibit 99.3 to the Registrant's Current Report
on Form 8-K dated October 25, 1995, Commission File
Number 0-13365, is incorporated herein by
reference.
3.22 By-laws of OshKosh B'Gosh, Inc., as amended,
previously filed as exhibit 3.2 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, Commission File Number 0-13365,
is incorporated herein by reference.
*10.1 Employment Agreement dated July 7, 1980, between
OshKosh B'Gosh, Inc. and Charles F. Hyde as
extended by "Request For Later Retirement" dated
April 15, 1986 and accepted by the Board of Directors'
resolution on May 2, 1986, previously filed as
Exhibit 10.1 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1986, Commission File Number 0-13365, is
incorporated herein by reference.
*10.2 Employment Agreement dated July 7, 1980, between
OshKosh B'Gosh, Inc. and Thomas R. Wyman,
previously filed as Exhibit 10.2 to the
Registrant's Registration Statement No. 2-96586 on Form S-1,
is incorporated herein by reference.
*10.3 OshKosh B'Gosh, Inc. Profit Sharing Plan, as
amended, previously filed as Exhibit 10.3 to the
Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, is incorporated
herein be reference.
*10.4 OshKosh B'Gosh, Inc. Restated Excess Benefit Plan,
as amended, previously filed as Exhibit 10.4 to the
Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, is incorporated
herein be reference.
*10.5 OshKosh B'Gosh, Inc. Executive Deferred Compensation
Plan, as amended, previously filed as Exhibit 10.5
to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1997, is
incorporated herein be reference.
*10.6 OshKosh B'Gosh, Inc. Officers Medical and Dental
Reimbursement Plan, as amended, previously
filed as Exhibit 10.18 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1994, Commission File Number 0-13365, is
incorporated herein by reference.
10.7 Acknowledgment of Guaranty Agreement between City of
Liberty, Casey County, Kentucky and OshKosh
B'Gosh, Inc., dated October 4, 1984, and
related Contract of Lease and Rent dated as of November 26,
1968, previously filed as Exhibit 10.14 to the
Registrant's Registration Statement No. 2- 96586
on Form S-1, is incorporated herein by reference.
10.8 Indemnity Agreement between OshKosh B'Gosh, Inc. and
William P. Jacobsen (former Vice President and Treasurer
of OshKosh B'Gosh, Inc.) dated as of June 8, 1987,
previously filed as Exhibit 10.16 to the
Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31,
1987, Commission File Number 0-13365, is incorporated
herein by reference. (Note: Identical agreements have been
entered into by the Company with each of the
following officers: Douglas W. Hyde, Michael D.
Wachtel and Kenneth H. Masters).
*10.9 OshKosh B'Gosh, Inc. Executive Non-Qualified Profit
Sharing Plan, as amended, previously filed as
Exhibit 10.9 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31,
1997, is incorporated herein be reference.
10.10 Employment agreement dated and effective May 1,
1994, by and among OshKosh B'Gosh, Inc., Essex
Outfitters, Inc. and Barbara Widder-Lowry
previously filed as Exhibit 10.14 to the Registrant's Annual
Report on Form 10-K for the fiscal year
ended December 31, 1994, Commission File
Number 0-13365, is incorporated herein by reference.
10.11 Employment agreement dated and effective May 1, 1994
by and among OshKosh B'Gosh, Inc., Essex
Outfitters, Inc. and Paul A. Lowry
previously filed as Exhibit 10.15 to the Registrant's Annual
Report on Form 10-K for the fiscal year
ended December 31, 1994, Commission File
Number 0-13365, is incorporated herein by reference.
10.12 Credit agreement between OshKosh B'Gosh, Inc. and
Firstar Bank Milwaukee, N.A. and participating banks
as amended, dated as of December 31, 1998.
*10.13 OshKosh B'Gosh, Inc. 1994 Incentive Stock Plan
previously filed as Exhibit 10.17 to the
Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994, Commission File Number
0-13365, is incorporated herein by reference.
10.14 OshKosh B'Gosh, Inc. 1995 Outside Director's Stock
Option Plan, as amended, previously filed as Exhibit
10.14 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997, is
incorporated herein be reference.
*10.15 OshKosh B'Gosh, Inc. Flexible Nonstandardized 401(k)
Adoption Agreement and Smith Barney
Prototype Defined Contribution Plan
Document #05 previously filed as Exhibit 10.15 to the
Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996,
Commission File Number 0-13365, is incorporated herein by
reference.
21. The following is a list of subsidiaries of the
Company as of January 2, 1999. The consolidated
financial statements reflect the operations of all
subsidiaries as they existed on January 2, 1999.
State or Other
Jurisdiction of
Incorporation or
Name of Subsidiary Organization
Grove Industries, Inc. Delaware
Manufacturera International Apparel, S.A. Honduras
OshKosh B'Gosh International Sales, Inc. Virgin Islands
OshKosh B'Gosh Asia/Pacific Ltd. (Inactive) Hong Kong
OshKosh B'Gosh U.K. Ltd. (Inactive) United Kingdom
OshKosh B'Gosh Deutschland GmbH (Inactive) Germany
OshKosh B'Gosh Investments, Inc. Nevada
23. Consent of Ernst & Young LLP, Independent Auditors
27. Financial Data Schedule
* Represents a plan that covers compensation,
benefits and/or related arrangements for executive management.
SIGNATURES
Date: March 31, 1999
Pursuant to the requirements of Section 13 of 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
OSHKOSH B'GOSH, INC.
By: /s/DOUGLAS W. HYDE
Chairman of the Board, President and Chief Executive Officer
By: /s/DAVID L. OMACHINSKI
Vice President-Finance, Treasurer and Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act
of 1934, this report has been signed below by the following
persons on behalf of the Registrant and in the capacities
and on the dates indicated.
Signature Title
/S/ DOUGLAS W. HYDE Chairman of the Board,
President and Chief Executive Officer
/S/ MICHAEL D. WACHTEL Executive Vice President, Chief
Operating Officer
/S/ DAVID L. OMACHINSKI Vice President-Finance, Treasurer and
Chief Financial Officer
/S/ STEVEN R. DUBACK Secretary and Director
/S/ WILLIAM F. WYMAN Vice President Domestic Licensing
Date: March 31, 1999
OSHKOSH B'GOSH, INC. AND SUBSIDIARIES
Schedule II
Valuation and Qualifying Accounts
(Dollars in Thousands)
1998 1997 1996
Accounts receivable - allowances:
Balance at beginning of period $ 4,225 $ 5,474 $ 3,970
Charged to costs and expenses 15,997 11,836 10,392
Deductions - bad debts written off,
net of recoveries and other
allowances (15,982) (13,085) (8,888)
Balance at end of period $ 4,240 $ 4,225 $ 5,474
1998 1997 1996
Restructuring costs - allowances:
Balance at beginning of period $ 7,938 $ 10,694 $ 334
Charged to cost and expenses -- -- 15,300
Actual restructuring costs incurred (3,906) (2,756) (4,940)
Balance at end of period $ 4,032 $ 7,938 $ 10,694
EXHIBIT 23
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration
Statements (Forms S-8 No. 333-01051 and No. 333-01053) of OshKosh
B'Gosh, Inc. of our report dated January 29, 1999, with respect
to the consolidated financial statements and schedule of OshKosh
B'Gosh, Inc. and Subsidiaries included in this Annual Report
(Form 10-K) for the year ended January 2, 1999.
ERNST & YOUNG LLP
Milwaukee, Wisconsin
March 29, 1999
EXHIBIT 10.12
OshKosh B'Gosh, Inc.
112 Otter Avenue
Oshkosh, Wisconsin 54901-5008
CREDIT AGREEMENT
June 24, 1994
Firstar Bank Milwaukee,
National Association
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Bank One, Milwaukee, NA
111 East Wisconsin Ave.
Milwaukee, Wisconsin 53202
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
Norwest Bank Wisconsin,
National Association
100 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Gentlemen:
OshKosh B'Gosh, Inc., a Delaware corporation with its
principal offices located in the City of Oshkosh, Wisconsin (the
"Company"), hereby requests that each of you (collectively the
"Banks" and individually a "Bank") severally agree to make loans
to the Company from time to time on the terms and conditions set
forth below:
ARTICLE I
LOANS AND NOTES
1.1 Revolving Credit. From time to time prior to June 24,
1997 or the earlier termination in full of the
Commitments (in either case the "Termination Date"),
the Company may obtain loans from each of the Banks,
pro rata according to each Bank's Percentage Interest,
up to an aggregate principal amount equal to the amount
by which (i) $60,000,000 (the "Aggregate Commitment"
and as to each Bank's respective Percentage Interest
thereof, its "Commitment"), as terminated or reduced
pursuant to section 1.7, exceeds (ii) the sum of (A)
the aggregate amount of Letter of Credit obligations
(as defined in section 10.1(o) below), and (B) the
aggregate face amount of outstanding Commercial Paper
(as defined in section 10.1(d) below), including for
this purpose all Nicolet Funding Corp. Loans (as
defined in section 1.9(e)below). The Commitment and
Percentage Interest of each Bank is set forth in the table below:
Percentage
Name of Bank Commitment Interest
Firstar Bank Milwaukee, $19,500,000 32.5%
National Association
Bank One, Milwaukee, NA $16,500,000 27.5%
Harris Trust and Savings $12,000,000 20.0%
Bank
Norwest Bank Wisconsin, $12,000,000 20.0%
National Association
Total: $60,000,000 100.0%
The failure of any one or more of the Banks to lend in accordance
with its Commitment shall not relieve the other Banks of their
several obligations hereunder, but no Bank shall be liable in
respect to the obligation of any other Bank hereunder or be
obligated in any event to lend in excess of its Commitment.
Subject to the limitations of section 2.2(d)(3) the Company may
repay such loans and reborrow hereunder from time to time prior
to the Termination Date. Each loan hereunder from the Banks
collectively shall be in a multiple of $100,000 (except that any
such loan subject to a LIBOR Pricing option shall be in an amount
of $1,000,000 or any multiple of $100,000 in excess of such
amount). The loans from each Bank advanced under this section
1.1 shall be evidenced by a single promissory note of the Company
(each a "Revolving Credit Note", and collectively with the Demand
Notes (as defined in section 1.2 below), sometimes called the
"Notes") in the form of Exhibit 1.1 annexed hereto, payable to
the order of the lending Bank.
1.2 Demand Line of Credit. There is hereby
established a revocable line of credit in the aggregate principal
amount of $40,000,000 (the "Demand Line") for the current use of
the Company. The amount of the Demand Line provided by each Bank
is set forth in the table below:
Name of Bank Demand Line
Firstar Bank Milwaukee, $13,000,000
National Association
Bank one, Milwaukee, NA $11,000,000
Harris Trust and Savings Bank $ 8,000,000
Norwest Bank Wisconsin, $ 8,000,000
National Association
Total: $40,000,000
Each Bank in its sole discretion may decline to make advances
under the Demand Line at any time without having made demand
for payment. Any Bank so declining to make advances shall
immediately give written notice of such declination to the
Company and the Agent, but failure to give such notice shall
not affect the validity or effectiveness of such declination.
Any loans under the Demand Line shall be made pro rata according
to the participating Banks, respective shares of the Demand Line
from time to time in effect, up to an aggregate principal amount
equal to (i) $40,000,000 minus (ii) the amount by which (A) the
sum of (1) the outstanding principal amount of all revolving
credit loans made pursuant to section
1.1, (2) the aggregate amount of Letter of Credit
Obligations, and (3) the aggregate face amount of
outstanding Commercial Paper, including for this
purpose all Nicolet Funding Corp. Loans, exceeds (E)
the Aggregate Commitment. The Demand Line shall be
unused for at least 90 consecutive days during each
twelve-month period commencing July I of a given year
and ending June 30 the following year. Each advance
under the Demand Line from the Banks collectively shall
be in a multiple of $100,000 (except that any such
advance subject to a LIBOR Pricing Option shall be in
an amount of $1,000,000 or any multiple of $100,000 in
excess of such amount). The advances under the Demand
Line from each Bank shall be evidenced by a single
promissory note of the Company (each a "Demand Note",
and collectively with the Revolving Credit Notes,
sometimes called the "Notes"), payable on demand to the
order of the lending Bank in the form of Exhibit 1.2
attached hereto. The Company acknowledges that all
amounts due under the Demand Notes are payable on
demand, regardless of whether the Company has breached
any of the terms, covenants and conditions set forth in
this Agreement, the Notes, any Collateral Document or
any other document or agreement applicable to the loans
described herein.
1.3 Notes. The Notes shall be executed by
the Company and delivered to the Banks prior to the
initial loans. Although the Notes shall be expressed
to be payable in the full amounts specified above, the
Company shall be obligated to pay only the amounts
actually disbursed to or for the account of the
Company, together with interest on the unpaid balance
of sums so disbursed which remains outstanding from
time to time, at the rates and on the dates specified
in the Notes, together with the other amounts provided
therein.
1.4 Letters of Credit.
(a) Firstar Bank Milwaukee, N.A. and such
other Bank or Banks as the Company may from time to
time designate with the consent of the Agent (each an
"LOC Bank") shall from time to time when so requested
by the Company issue standby and import letters of
credit, respectively (each a "Letter of Credit" and
collectively the "Letters of Credit") for the account
of the Company up to an aggregate face amount equal to
the amount by which (i) the sum of (A) the Aggregate
Commitment and (B) the Demand Line from time to time in
effect exceeds (ii) the sum of (A) the outstanding
principal amount of loans made pursuant to sections 1.1
and 1.2, (B) the aggregate amount of all unpaid
Reimbursement obligations (as defined in section
lo.l(r) below) and (C) the aggregate face amount of
outstanding Commercial Paper, including for this
purpose all
Nicolet Funding Corp. Loans. In addition to the
foregoing aggregate limitation on Letters of Credit,
standby Letters of Credit shall not exceed $25,000,000
in aggregate face amount at any time outstanding and
import Letters of Credit shall not exceed $35,000,000
in aggregate face amount at any time outstanding. Each
LOC Bank hereby grants to each other Bank, and each
other Bank hereby agrees to take, a pro rata
participation in each Letter of Credit issued hereunder
and all rights (including rights to reimbursement from
the Company under paragraph (c) below) and obligations
associated therewith in accordance with the Percentage
Interest of each Bank. In the event of any drawing on
a Letter of Credit which is not reimbursed by or on
behalf of the Company, each Bank shall pay to the
appropriate LOC Bank a proportionate amount of such
drawing equal to its Percentage Interest therein. Each
LOC Bank shall divide the proceeds of any reimbursement
of a drawing on a Letter of Credit with the other Banks
that have made payment to the LOC Bank pursuant to the
foregoing sentence, pro rata according to the
respective contributions of such other Banks.
(b) The Company agrees to pay to the Agent for
the pro rata benefit of the Banks a letter of credit
fee in respect of each standby Letter of Credit in the
amount of three quarters of one percent (3/4!k) per
annum of the face amount of such standby Letter of
Credit. Such fees shall be payable quarterly in
arrears on the first day of each calendar quarter.
(c) The Company hereby unconditionally promises
to pay to the appropriate LOC Bank upon demand, without
defense, setoff or counterclaim, the amount of each
drawing under Letters of Credit issued by such LOC Bank
plus interest on the foregoing from the date due at the
Prime Rate (as defined in section 2.2(b)(2)).
(d) Reliance on Documents. Delivery to the LOC Banks
of any documents strictly complying on their face with
the requirements of any Letter of Credit shall be
sufficient evidence of the validity, genuineness and
sufficiency thereof and of the good faith and proper
performance of drawers and users of such Letter of
Credit, their agents and assignees; and the LOC Banks
may rely thereon without liability or responsibility
with respect thereto, even if such documents should in
fact prove to be in any or all respects invalid,
fraudulent or forged.
(e) Non-Liability for Other Matters. The LOC Banks
shall not be liable to the Company for (i)
honoring any requests for payment under any Letter
of Credit which strictly comply on their face with
the terms of such Letter of Credit, (ii) any delay
in giving or failing to give any notice, (iii)
errors, delays, misdeliveries or losses in
transmission of telegrams, cables, letters or
other communications or documents or items
forwarded in connection with any Letter of Credit
or any draft, (iv) accepting and relying upon the
name, signature or act of any party who is or
purports to be acting in strict compliance with
the terms of any Letter of Credit; or (v) any
other action taken or omitted by the LOC Banks in
good faith in connection with any Letter of Credit
or any draft; except only that the Company shall
have a claim against an LOC Bank, and such LOC
Bank shall be liable to the Company, to the extent
of damages suffered by the Company which the
Company proves were caused by (A) the LOC Bank's
willful misconduct or gross negligence or (B) the
LOC Bank's willful and wrongful failure to pay
under any Letter of Credit after the presentation
to it of documents strictly complying with the
terms and conditions of the Letter of Credit.
1.5 Use of Proceeds. The Company represents, warrants and agrees that:
(a) The proceeds of the loans made hereunder
will be used solely for the following purposes:
(i) contemporaneously with the making of the
initial loan hereunder, the proceeds of such
initial loan shall be used to the extent necessary
to pay all indebtedness of Company outstanding
under its demand lines of credit with Firstar Bank
Milwaukee, N.A. and Norwest Bank Wisconsin; and
(ii) all other proceeds shall be used (A) for the
repayment at maturity of outstanding Commercial
Paper (to the extent necessary), and (B) for
working capital and other lawful corporate
purposes.
(b) No part of the proceeds of any loan made
hereunder will be used to "purchase" or "carry"
any "margin stock" or to extend credit to others
for the purpose of "purchasing" or "carrying" any
"margin stock" (as such terms are defined in the
Regulation U of the Board of Governors of the
Federal Reserve System), and the assets of the
Company and its Subsidiaries do not include, and
neither the Company nor any Subsidiary has any
present intention of acquiring, any such security.
1.6 Commitment Fee. The Company shall pay to the
Agent for the account of the Banks, pro rata according
to their respective Percentage Interests, a commitment
fee computed at the rate of one-eighth of one percent
(1/8W) per annum on the Aggregate Commitment (as
reduced pursuant to section 1.7). Such commitment fees
shall accrue during the period from the date of this
Agreement to and including the Termination Date and be
payable quarterly in advance on the date of the initial
loan and on the first day of each calendar quarter
thereafter.
1.7 Termination or Reduction.
(a) The Company shall have the right, upon
five business days' prior written notice to each
Bank, to ratably reduce in part the Commitments,
provided, however, that (i) each partial reduction
of the Aggregate Commitment shall be in the amount
of $100,000 or an integral multiple thereof, and
(ii) no reduction shall reduce the Aggregate
Commitment to an amount less than the sum of (A)
the aggregate principal amount of outstanding
revolving credit loans made under Section 1.1, (B)
the aggregate amount of Letter of Credit
obligations, and (C) the aggregate face amount of
outstanding Commercial Paper, including for this
purpose all Nicolet Funding Corp. Loans. Subject
to the limitations of the preceding sentence, the
entire Commitments of all of the Banks may be
terminated in whole at any time upon five Business
Days, prior written notice to each Bank.
(b) Each Bank in its sole discretion may at
any time reduce or terminate its individual Demand
Line by giving written notice of such reduction or
termination to the Agent and the Company. If any
Bank shall decline to make additional advances
pursuant to the Demand Line or shall demand
payment of any amount outstanding under its Demand
Note, the aggregate Demand Line shall
automatically be reduced by an amount equal to
such Bank's individual Demand Line.
1.8 Optional Prepayment. The Notes may be
prepaid in whole or in part at the option of the
Company at any time without premium or penalty except
as otherwise provided in section 2.2(d)(3). All
prepayments shall be applied as set forth in section
2.4(b) pro rata among the Banks in accordance with
their respective Percentage Interests. All prepayments
shall be accompanied by interest accrued on the amount
prepaid through the date of prepayment.
1.9 Commercial Paper.
(a) The Company may issue Commercial Paper
from time to time, including sales of Commercial Paper
through one or more of the Banks acting as placement
agent pursuant to separate agreements between the
Company and such Bank or Banks. The aggregate face
amount of all outstanding Commercial Paper (but not
including for this purpose any Nicolet Funding Corp.
Loans) shall not at any time exceed the lesser of (i)
$60,000,000 and (ii) the amount by which (A) the sum of
(1) the Aggregate Commitment and (2) the Demand Line in
effect from time to time, exceeds (B) the sum of (1)
the outstanding principal amount of loans made pursuant
to sections 1.1 and 1.2, (2) the aggregate amount of
Letter of Credit Obligations and (3) the outstanding
principal amount of all Nicolet Funding Corp. Loans.
No Commercial Paper shall have a term to maturity
greater than 100 days.
(b) The Company shall pay a Commercial Paper
placement fee in respect of Commercial Paper placed by
any of the Banks computed at a rate of one-quarter of
one percent (1/4%) per annum of the aggregate face
amount of such Commercial Paper, payable at the time
such Commercial Paper is issued as follows: (i) one-
eighth of one percent (1/8%) to the Bank acting as
placement agent for the sale of such Commercial Paper
and (ii) one-eighth of one percent (1/8%) to the Agent
for the pro rata benefit of the Banks.
(c) The Company will give written notice to
the Agent in the form of Part 1 to Exhibit 2.1 hereto
on each Business Day on which there is any change in
the aggregate outstanding face amount of Commercial
Paper and Nicolet Funding Corp. Loans, setting forth
the aggregate principal amount of all Commercial Paper
and Nicolet Funding Corp. Loans then outstanding after
giving effect to the issuance or repayment of
Commercial Paper and Nicolet Funding Corp. Loans (as
the case may be) taking place on such Business Day.
(d) For all purposes of this Agreement, the
outstanding face amount of all Commercial Paper
(but not including for this purpose any Nicolet
Funding Corp. Loans) shall be deemed to be use of
the Aggregate Commitment. The principal amount of
outstanding loans (including Nicolet Funding Corp.
Loans) and the face amount of outstanding Letters
of Credit shall be deemed to be use of the
Aggregate Commitment to the extent that the
Aggregate Commitment exceeds the face amount of
outstanding Commercial Paper (but not including
for this purpose any Nicolet Funding Corp. Loans)
from time to time, and otherwise shall be deemed
to be use of the Demand Line.
(e) The Company may also obtain direct
loans from Nicolet Funding Corp. ("Nicolet Funding
Corp. Loans") from time to time. The aggregate
principal amount of such loans at any time
outstanding shall not exceed the lesser of (i)
$20,000,000 and (ii) the sum of (A) the amount by
which the Aggregate Commitment exceeds the
aggregate principal amount of Commercial Paper
from time to time outstanding, plus (B) the amount
available to be borrowed from time to time under
the Demand Line provided by Norwest Bank
Wisconsin, National Association. Such loans shall
have maturities not exceeding 100 days, and shall
bear interest at rates to be agreed upon by the
Company and Nicolet Funding Corp.
ARTICLE II
ADMINISTRATION OF CREDIT
2.1 Borrowing Procedure. Loans hereunder shall he
made at the principal banking office of the Agent in
Milwaukee, Wisconsin, on written or telephonic
notice from the Company to the Agent received not later
than 10:30 a.m. on the date of the proposed borrowing
(subject to the notice requirement of section 2.2(c)(2)
if the Company wishes to elect a LIBOR Pricing option
with respect to such loan), which notice shall specify
the date and the aggregate principal amount of such
borrowing. Each written request for a borrowing
hereunder shall be given in the form of Part 2 to
Exhibit 2.1 hereto; each telephonic request for a
borrowing hereunder shall be confirmed within three (3)
Business Days of the borrowing date by delivery of a
written request in such form. Upon its receipt of such
notice from the Company, the Agent shall promptly give
notice to the other Banks, each of which shall have its
respective portion of the loans available to the Agent
in Milwaukee in immediately available funds not later
than 2:00 p.m. on the date of the borrowing. Out of
thefunds received from the Banks for the making of
the loans hereunder, the Agent will make a loan to the
Company in such amount on behalf of such Banks. Notes
and other required documents delivered to the Agent for
the account of each Bank shall be promptly delivered to
such Bank, or in accordance with instructions received
from it, together with copies of such other documents
received in connection with the borrowing as such Bank
shall request.
2.2 Interest Calculation.
(a) Interest. The principal amount of the
indebtedness from time to time evidenced by the Notes
shall accrue and bear interest at a rate per annum
which shall at all times equal the Applicable Rate (as
defined in section 2.2(b)). To the extent that any
portion of the indebtedness evidenced by the Notes
bears interest at the Prime Rate (defined below), the
Company will pay such interest monthly in arrears on
the last day of each month. On the last day of each
LIBOR Interest Period or on any earlier termination of
any LIBOR Pricing Option, the Company will pay the
accrued and unpaid interest on the indebtedness
evidenced by the Notes which was subject to the LIBOR
Pricing Option which expired or terminated on such
date. On any stated or accelerated maturity of the
indebtedness evidenced by the Notes all accrued and
unpaid interest on such indebtedness shall be forthwith
due and payable, including without limitation any
accrued and unpaid interest on such indebtedness which
is subject to a LIBOR Pricing Option. In addition, the
Company will, on demand, pay interest on any overdue
installments of principal and pay interest during the
continuance of any Event of Default both at a rate per
annum which is at all times equal to the sum of (a) the
Applicable Rate (or, if more than one Applicable Rate
is then in effect, the weighted average of the
Applicable Rates then in effect), plus (b) 2%r per
annum.
(b) Applicable Rate. The term "Applicable Rate"
shall mean:
(1) With respect to any portion of the
indebtedness evidenced by the Notes which is at
the time subject to an effective LIBOR Pricing
Option, the applicable LIBOR Rate set forth in
section 2.2(c)(1)(D).
(2) With respect to any portion of the
indebtedness evidenced by the Notes which is not
at the time subject to an effective LIBOR Pricing
Option, the rate announced by Firstar Bank
Milwaukee, N.A. from time to time as its prime
rate (changing as and when such prime rate
changes) (the "Prime Rate").
(c) The LIBOR Pricing Options. The following
provisions shall apply to the LIBOR Pricing Options:
(1) Certain Definitions. For purposes of
this Agreement:
(A) The term "Basic LIBOR Rate" as applied to any
LIBOR Interest Period shall mean the per annum rate of
interest determined by the Agent (which shall be
applicable to all of the Banks) to be the average
(rounded up, if necessary, to the nearest 1/16 of 1%)
of the offered rates for deposits in U.S. dollars for
the applicable LIBOR Interest Period which appear on
the Reuters Screen LIBO Page (or such other page on
which the appropriate information may be displayed), on
the electronic communications terminals in the Agent's
money center as of 11:00 a.m. (London time) on the day
which is two Business Days prior to the first day of
such LIBOR Interest Period ("Calculation Date"), except
as provided below. if fewer than two offered rates
appear for the applicable LIBOR Interest Period or if
the appropriate screen is not accessible as of such
time, the term "Basic LIBOR Rate" shall mean the per
annum rate of interest determined by the Agent (but
which shall be applicable to all of the Banks) to be
the average (rounded up, if necessary, to the nearest
1/16 of 1%) of the rates at which deposits in U.S.
dollars are offered to the Agent by four major banks in
the London interbank market, as selected by the Agent
("Reference Banks"), at approximately 11 a.m., London
time, on the Calculation Date for the applicable LIBOR
Interest Period and in an amount equal to the principal
amount of the loans subject to the applicable LIBOR
Pricing Option. The Agent will request the principal
London office of each of the Reference Banks to provide
a quotation of its rate. If at least two such
quotations are provided, the applicable rate will be
the mean of the quotations. If fewer than two
quotations are provided as requested, the applicable
rate will be the mean of the rates quoted by major
banks in New York City, selected by the Agent, at
approximately 11 a.m., New York City time, on the
Calculation Date for loans in U.S. dollars to leading
European banks for the applicable LIBOR Interest Period
and in an amount equal to the principal amount of the
loans subject to the applicable LIBOR Pricing Option.
(B)The term "LIBOR Interest Period" shall mean any
period, selected as provided below in this section
2.2(c) of one, two or three months, each commencing on
any Business Day. Such LIBOR Interest Period shall
end on the day in the succeeding calendar month which
corresponds numerically to the beginning day of such
LIBOR Interest Period, provided, however, that if there
is no such numerically corresponding day in such
succeeding month, such LIBOR Interest Period shall end
on the last Business Day of such succeeding month. If
any LIBOR Interest Period so selected would otherwise
end on a date which is not a Business Day, such LIBOR
Interest Period shall instead end on the immediately
succeeding Business Day, provided, however, that if
said next succeeding Business Day falls in a new month,
such LIBOR Interest Period shall end on the immediately
preceding Business Day.
(C) The term "LIBOR Pricing Options" shall mean
the options granted pursuant to this section 2.2(c) to
have the interest on all or any portion of the
principal amount of indebtedness evidenced by the Notes
computed with reference to a LIBOR Rate.
(D) The term "LIBOR Rate" for any LIBOR Interest
Period shall mean a rate per annum equal to the sum of
(i) the quotient of (A) the Basic LIBOR Rate applicable
to that LIBOR Interest Period divided by (B) one minus
the LIBOR Reserve Requirement (expressed as a decimal)
applicable to that LIBOR Interest Period, plus (ii)
five-eighths of one percent (5/8%). The LIBOR Rate
shall be rounded, if necessary, to the next higher 1/16
of 1%.
(E) The term "LIBOR Reserve Requirement" shall
mean, with respect to each LIBOR Interest Period,
the stated rate of all reserve requirements
(including all basic, supplemental, marginal and
other reserves and taking into account any
transitional adjustments or other scheduled
changes in reserve requirements during such LIBOR
Interest Period) that is specified on the first
day of such LIBOR Interest Period by the Board of
Governors of the Federal Reserve System for
determining the maximum reserve requirement with
respect to eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in
Regulation D of such Board of Governors)
applicable to the Agent.
(F) The term "Regulatory Change" means any change
enacted or issued after the date of this Agreement
of any (or the adoption after the date of this
Agreementof any new) federal or state law,
regulation, interpretation, direction, policy or
guideline, or any court decision, which in any
case has general application to banks of the class
of which any Bank is a member and which affects
the treatment of any loans of such Bank, all as
set forth below.
(2) Election of LIBOR Pricing Options. Subject to
all the terms and conditions hereof, the
Company may, by notice to the Agent received
not later than 10:30 a.m. (Milwaukee time) on
the day which is three Business Days prior to
the first day of the LIBOR Interest Period
selected in such notice, elect to have all or
such portion of the principal amount of
indebtedness then evidenced (or to be evidenced
at the commencement of such LIBOR Interest
Period) by the Notes as the Company may specify
in such notice (in the minimum amount of
$1,000,000 or any multiple of $100,000 in
excess of such amount) accrue and bear daily
interest during the LIBOR Interest Period so
selected at a per annum rate equal to the LIBOR
Rate for such LIBOR Interest Period; provided,
however, that no such election shall become
effective if the Agent determines (which
determination shall be binding and conclusive
on all parties) that (i) by reason of
circumstances affecting the London interbank
market adequate and reasonable means do not
exist for ascertaining the applicable LIBOR
Rate; (ii) the LIBOR Rate does not accurately
reflect the cost to the Banks of making or
maintaining LIBOR-based loans in general; or
(iii) any Default or Event of Default has
occurred and is continuing. Each notice of
election of a LIBOR Pricing Option shall be irrevocable.
(d) Special Provisions.
(1) Increased Costs. If any Regulatory Change,
(A) shall subject any Bank to any tax, duty
or other charge with respect to any of its loans,
Letters of Credit or participations therein, or
Reimbursement Obligations owed to it hereunder, or
shall change the basis of taxation of payments to
any Bank of the principal of or interest on its
loans hereunder or Reimbursement Obligations owed
to it, or any other amounts due under this
Agreement in respect of such loans or
Reimbursement obligations, or its obligation to
make loans hereunder or issue Letters of Credit or
participate therein (except for changes in the
rate of tax on the overall net income of such
Bank);
(B) shall impose, modify or make applicable
any reserve (including, without limitation, any
reserve imposed by the Board of Governors of the
Federal Reserve System, but excluding any reserve
included in the determination of the LIBOR Rate),
special deposit or similar requirement against
assets of, deposits with or for the account of, or
credit extended by, any Bank; or
(C) shall impose on any Bank any
other condition affecting its loans,
Letters of Credit or participations
therein, or any Reimbursement Obligation
owed to it hereunder; and the result of
any of the foregoing is to increase the
cost to (or in the case of Regulation D or
any other analogous law, rule or regulation, to
impose a cost on) such Bank of making or
maintaining any loans, issuing or maintaining any
Letter of Credit, or participating therein, or to
reduce the amount of any sum received or
receivable by such Bank under this Agreement and
any document or instrument related hereto, then
after 30 days' notice from such Bank (which notice
shall be sent to the Agent and the Company and
shall be accompanied by a statement setting forth in
reasonable detail the basis of such increased cost
or other effect on the loans, Letters of Credit or
Reimbursement obligations), the Company shall pay
directly to such Bank, on demand, such
additional amount or amounts as will compensate
such Bank for such increased cost or such
reduction incurred on or after the date of the
giving of such notice to the Agent and the Company.
Each of the Banks represents to the Company
that, as of the date hereof, it is not aware of
any fact or circumstance that would give rise to
any increased cost under this section 2.2(d)(1).
Each Bank further agrees that, for purposes of
this section 2.2(d)(1), it will not treat the
Company in a manner different from its other
commercial loan customers having similar loan
relationships with the Bank.
(2) Changes in Law Rendering Certain
Loans Unlawful. In the event that any Regulatory
Change should make it (or, in the good faith judgment
of a Bank, should raise substantial questions as to
whether it is) unlawful for a Bank to make, maintain or
fund a loan subject to a LIBOR Rate, then (i) such Bank
shall promptly notify each of the other parties hereto,
(ii) the obligation of all Banks to make such loan
shall, upon the effectiveness of such event, be
suspended for the duration of such unlawfulness, and
(iii) to the extent that it is unlawful for such Bank
to maintain an outstanding loan subject to a LIBOR
Rate, such loan shall thereafter bear interest at the
Prime Rate or such other lower rate as may be agreed
upon by the Company and the Bank.
(3) Funding Losses. The Company hereby agrees
that upon demand by any Bank (which demand shall be
sent to the Agent and the Company and shall be
accompanied by a statement setting forth in reasonable
detail the basis for the calculations of the amount
being claimed) the Company will indemnify such Bank
against any net loss or expense which such Bank may
sustain or incur (including, without limitation, any
net loss or expense incurred by reason of the
liquidation or reemployment of
deposits or other funds acquired by such Bank to fund
or maintain loans hereunder), as reasonably determined
by such Bank, as a result of (i) any payment or
prepayment of any loan subject to a LIBOR Rate of such
Bank on a date other than the last day of a LIBOR
Interest Period for such loan whether or not required
by any other provision of this Agreement, or (ii) any
failure of the Company to borrow any loans on a date
specified therefor in a notice of borrowing pursuant to
this Agreement.
(4) Discretion of Banks as to Manner of
Funding. Notwithstanding any provision of this
Agreement to the contrary, each Bank shall be
entitled to fund and maintain its funding of all or any
part of its loans hereunder in any manner it sees fit.
(5) Capital Adequacy. If any Regulatory Change
affects the treatment of any loan, Letter of Credit or
participation therein of a Bank as an asset or other
item included for the purpose of calculating the
appropriate amount of capital to be maintained by such
Bank or any corporation controlling such Bank and has
the effect of reducing the rate of return on such
Bank's or such corporation's capital as a consequence
of the obligations of such Bank hereunder to a level
below that which such Bank or such corporation could
have achieved but for such Regulatory Change (taking
into account such Bank's or such corporation's policies
with respect to capital adequacy) by an amount deemed
in good faith by such Bank to be material, then after
30 days' notice from such Bank to the Company and the
Agent of such Regulatory Change, the Company shall pay
to such Bank, on demand, such additional amount or
amounts as will compensate such Bank or such
corporation, as the case may be, for such reduction
incurred on or after the date of the giving of such
notice to the Agent and the Company. Such Bank shall
submit, to the Agent and the Company, a statement as to
the amount of such compensation, prepared in good faith
and in reasonable detail. Each of the Banks represents
to the Company that, as of the date hereof, it is not
aware of any fact or circumstance that would give rise
to a claim for compensation under this section 2.2(d)(5).
(6) Conclusiveness of Statements; Survival of
Provisions.Determinations and statements of any Bank pursuant to
sections
2.2(d)(1), (2), (3) and (5) shall be rebuttably
presumptive evidence of the correctness of the
determinations and statements and shall be conclusive
absent manifest error if the Company fails to deliver
written notice to the Agent within 30 days of (i) the
date of mailing of such statement or (ii) the giving of
notice of such determination if no such statement is
mailed. The provisions of section 2.2(d)(1),
(3) and (5) shall survive the obligation of the Banks
to extend credit under this Agreement and the repayment
of the loans and Reimbursement obligations.
2.3 Computations; Non-Business Days. All fees, and
all interest payable on the Notes, shall be computed for the
actual number of days elapsed using a daily rate determined by
dividing the annual rate by 360. Whenever any payment to be made
hereunder or under any Note shall be stated to be due on a non-
Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time shall be included in the
computation of interest under the Notes, or fees payable
hereunder, as the case may be.
2.4 Application of Payments.
(a) All payments of principal, interest and
fees under this Agreement and the Notes shall be made to the
Agent in immediately available funds for the ratable account
of the Banks and the holders of the Notes then outstanding,
as appropriate, in respect of amounts then due hereunder.
The Agent shall promptly distribute to each such Bank or
holder pro rata the amount of principal, interest or fees
received by the Agent for the account of such holder. Any
payment to the Agent for the account of a Bank or a holder
of a Note under this Agreement shall constitute a payment by
the Company to such Bank or holder of the amount so paid to
the Agent, and any Notes or portions thereof so paid shall
not be considered outstanding for any purpose after the date
of such payment to the Agent.
(b) All payments received by the Agent under this
Agreement from any source shall be applied to the
obligations of the Company hereunder in the following order
of priority:
(i) First, to the payment of all unreimbursed
fees and expenses due hereunder;
(ii) Second, to the repayment of all outstanding loans
under the Demand Line and all accrued interest thereon;
(iii) Third, to the payment of all
outstanding loans under the Aggregate
Commitment, to the extent then due and
payable, and all accrued interest thereon;
(iv) Fourth, to secure reimbursement of
the outstanding face amount of all Letters of
Credit issued against the Demand Line;
(v) Fifth, to secure reimbursement of
the outstanding face amount of all Letters of
Credit issued against the Aggregate
Commitment; and
(vi) Sixth, to secure payment at
maturity of all outstanding Commercial Paper,
including for this purpose all Nicolet
Funding Corp. Loans.
2.5 Pro Rata Treatment. All payments or
prepayments of principal, interest or fees shall be
made pro rata in accordance with the amounts of the
Notes then due. In the event that any Bank shall
receive from the Company or any other source (other
than the sale of a participation to another commercial
lender pursuant to section 10.10) any payment of, on
account of, or for any obligation of the Company
hereunder or under the Notes (whether pursuant to the
exercise of any right of set off, banker's lien,
realization upon any security held for or appropriated
to such obligation, counterclaim or otherwise) other
than as above provided, then such Bank shall
immediately purchase, without recourse and for cash, an
interest in the obligations of the same nature held by
the other Banks so that each Bank shall thereafter have
a percentage interest in all of such obligations eclual
to the percentage interest which such Bank held in the
Notes outstanding immediately before such payment;
provided, that if any payment so received shall be
recovered in whole or in part from such purchasing
Bank, the purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but
without interest. The Company specifically
acknowledges and consents to the preceding sentence.
2.6 Set Off. In the event that the unpaid
principal balance of the Notes or any other amount
becomes immediately due and payable pursuant to section
7.2, each Bank may offset and apply any monies,
balances, accounts and deposits (including certificates
of deposit) of the Company
then at such Bank toward the payment of the Note or
Notes held by such Bank or other amounts owed to it
hereunder. Promptly upon its charging any account of
the Company pursuant to this section, the Bank shall
give the Company notice thereof, provided that failure
to give such notice shall not affect the obligations of
the Company hereunder.
ARTICLE III
CONDITIONS OF BORROWING
Without limiting any of the other terms of
this Agreement, none of the Banks shall be required to
make any loan to the Company hereunder or issue any
Letter of Credit unless each of the following
conditions has been satisfied:
3.1 Representations. The representations
and warranties contained in Article IV hereof continue
to be true and correct on the date of such loan and no
Default or Event of Default hereunder shall have
occurred and be continuing.
3.2 Insurance Certificate. Prior to the
initial loan the Banks shall have received satisfactory
evidence that the Company maintains hazard and
liability insurance coverage reasonably satisfactory to
the Banks.
3.3 Form U-1. Prior to the initial loan the
Company shall have executed and delivered to the Banks
a Federal Reserve Form U-1 provided for in Regulation U
of the Board of Governors of the Federal Reserve
System, and the statements made therein shall be such,
in the reasonable opinion of the Banks, as to permit
the transactions contemplated hereby without violation
of Regulation U.
3.4 Counsel opinion. Prior to the initial
loan the Banks shall have received from their special
counsel and from Company's counsel, satisfactory
opinions as to such matters relating to the Company and
its Subsidiaries, the validity and enforceability of
this Agreement, the loans to be made hereunder and the
other documents required by this Article III as the
Banks shall reasonably require. The Company shall
execute and/or deliver to the Banks or their respective
counsel such documents concerning its corporate status
and the authorization of such transactions as may be
requested.
3.5 Proceedings Satisfactory. All
proceedings taken in connection with the transactions
contemplated by this Agreement, and all instruments,
authorizations and other documents applicable thereto,
shall be satisfactory in form and substance to the
Banks and their respective counsel.
3.6 Violation of Environmental Laws. In the
reasonable opinion of the Banks there shall not exist
any uncorrected violation by the Company or any
Subsidiary of an Environmental Law or any condition
which requires, or may require, a cleanup, removal or
other remedial action by the Company or any Subsidiary
under any Environmental Laws costing $2,500,000 or more
in the aggregate.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to make the
loans as provided herein, the Company represents and
warrants to the Banks as follows, except as set forth
in a letter (the "Information and Exceptions Letter")
delivered to the Banks not later than three (3)
Business Days prior to the date of this Agreement.
4.1 Organization. The Company and each of
its Subsidiaries is a corporation duly organized and
existing in good standing under the laws of the
jurisdiction under which it was incorporated, and has
all requisite power and authority, corporate or
otherwise, to conduct its business and to own its
properties. Set forth in the Information and
Exceptions Letter is a complete and accurate list of
all of its Subsidiaries, showing as of the date hereof
(as to each such Subsidiary) the jurisdiction of its
incorporation, the percentage of the outstanding shares
of each class of capital stock owned (directly or
indirectly) by the Company and the number of shares
covered by all outstanding options, warrants, rights of
conversion or purchase, and similar rights. All of the
outstanding stock of all of the Subsidiaries has been
legally and validly issued, is fully paid and non-
assessable except as provided by section 180.0622(2)(b)
of the Wisconsin Business Corporation Law and its
predecessor statute, as judicially interpreted, and is
owned by the Company or one or more other Subsidiaries
free and clear of all pledges, liens, security
interests and other charges or encumbrances. The
Company is duly licensed or qualified to do business in
all jurisdictions in which such qualification is
required, and failure to so qualify could have a
material adverse effect on the property, financial
condition or business operations of the Company.
4.2 Authority. The execution, delivery and
performance of this Agreement, the Notes and the
documents required by Article III (the "Collateral
Documents") are within the corporate powers of the
Company, have been duly authorized by all necessary
corporate action and do not and will not (i) require
any consent or approval of the stockholders of the
Company, (ii) violate any provision of the articles of
incorporation or by-laws of the Company or of any law,
rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect
having applicability to the Company or any Subsidiary;
(iii) require the consent or approval of, or filing or
registration with, any governmental body, agency or
authority; or (iv) result in a breach of or constitute
a default under, or result in the imposition of any
lien, charge or encumbrance upon any property of the
Company or any Subsidiary pursuant to, any indenture or
other agreement or instrument under which the
Company or any Subsidiary is a party or by which it or
its properties may be bound or affected. This
Agreement constitutes, and each of the Notes and
each of the Collateral Documents when executed and
delivered hereunder will constitute, legal, valid and
binding obligations of the Company or other signatory
enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy or
similar laws affecting the enforceability of creditors'
rights generally.
4.3 Investment Company Act of 1940. Neither the
Company nor any Subsidiary is an "investment company"
or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of
1940, as amended.
4.4 Employee Retirement Income Security Act.
All Plans are in compliance in all material respects
with the applicable provisions of ERISA. Neither the
Company nor any Subsidiary has incurred any material
"accumulated funding deficiency" within the meaning of
section 302(a)(2) of ERISA in connection with any Plan.
There has been no Reportable Event for any Plan, the
occurrence of which would have a materially adverse
effect on the Company or any Subsidiary, nor has the
Company or any Subsidiary incurred any material
liability to the Pension Benefit Guaranty Corporation
under section 4062 of ERISA in connection with any
Plan. The Unfunded Liabilities of all Plans do not in
the aggregate exceed $2,500,000.
4.5 Financial Statements. The consolidated and
consolidating balance sheets of the Company and its
Subsidiaries as of December 31, 1993, and the
consolidated and consolidating statements of profit and
loss and surplus of the Company and its Subsidiaries
for the year ended on that date, as prepared by the
Company and certified by Ernst & Young and heretofore
furnished to the Banks, present fairly the financial
condition of the Company and such Subsidiaries as of
that date, and the results of their operations for the
fiscal year ended on that date. Since December 31,
1993, there has been no material adverse change in the
property, financial condition or business operations of
the Company or any Subsidiary.
4.6 Liens. The Company and each Subsidiary
has good and marketable title to all of its assets,
real and personal, free and clear of all liens,
security interests, mortgages and encumbrances of any
kind, except Permitted Liens. To the best of the
Company's knowledge and belief, all owned and leased
buildings and equipment of the Company and its
Subsidiaries are in good condition, repair and working
order in all material respects and conform in all
material respects to all applicable laws, regulations
and ordinances.
4.7 Contingent Liabilities. Neither the
Company nor any Subsidiary has any guarantees or other
contingent liabilities outstanding (including, without
limitation, liabilities by way of agreement, contingent
or otherwise, to purchase, to provide funds for
payment, to supply funds to or otherwise invest in the
debtor or otherwise to assure the creditor against
loss), except those permitted by section 5.7 hereof.
4.8 Taxes. Except as expressly disclosed in the
financial statements referred to in section 4.5 above,
neither the Company nor any Subsidiary has any material
outstanding unpaid tax liability (except for taxes
which are currently accruing from current operations
and ownership of property, which are not delinquent),
and no tax deficiencies have been proposed or assessed
against the Company or any Subsidiary. The most recent
completed audit of the Company's federal income tax
returns was for the Company's income tax year ending
December 31, 1989, and all taxes shown by such returns
(together with any adjustments arising out of such
audit, if any) have been paid.
4.9 Absence of Litigation. Neither the Company nor
any Subsidiary is a party to any litigation or
administrative proceeding, nor so far as is known by
the Company is any litigation or administrative
proceeding threatened against it or any Subsidiary,
which in either case (i) relates to the execution,
delivery or performance of this Agreement, the Notes,
or any of the Collateral Documents, (ii) could, if
adversely determined, cause any material adverse change
in the property, financial condition or the conduct of
the business of the Company and its Subsidiaries taken
as a whole, (iii)asserts or alleges the Company or
any Subsidiary violated Environmental Laws, (iv)
asserts or alleges that Company or any Subsidiary is
required to cleanup, remove, or take remedial or other
response action due to the disposal, depositing,
discharge, leaking or other release of any hazardous
substances or materials, or (v) asserts or alleges that
Company or any Subsidiary is required to pay all or a
portion of the cost of any past, present or future
cleanup, removal or remedial or other response action
which arises out of or is related to the disposal,
depositing, discharge, leaking or other release of any
hazardous substances or materials by Company or any
Subsidiary, except with respect to violations,
cleanups, removals and other remedial and response
actions referred to clauses (iii), (iv) and (v) above
which will cost the Company and its Subsidiaries less
than $2,500,000 in the aggregate.
4.10 Absence of Default. No event has
occurred which either of itself or with the lapse of
time or the giving of notice or both, would give any
creditor of the Company or any Subsidiary the right to
accelerate the maturity of any indebtedness of the
Company or any Subsidiary for borrowed money. Neither
the Company nor any Subsidiary is in default under any
other lease, agreement or instrument, or any law, rule,
regulation, order, writ, injunction, decree,
determination or award, non-compliance with which could
materially adversely affect its property, financial
condition or business operations.
4.11 No Burdensome Agreements. Neither the Company nor
any Subsidiary is a party to any agreement, instrument
or undertaking, or subject to any other restriction,
(i) which materially adversely affects the property,
financial condition or business operations of the
Company and its Subsidiaries taken as a whole, or (ii)
under or pursuant to which the Company or any
Subsidiary is or will be required to place (or under
which any other person may place) a lien upon any of
its properties securing indebtedness either upon demand
or upon the happening of a condition, with or without
such demand, other than Permitted Liens.
4.12 Trademarks, etc. The Company and its
Subsidiaries possess adequate trademarks, trade names,
copyrights, patents, permits, service marks and
licenses, or rights thereto, for the present and
planned future conduct of their respective businesses
substantially as now conducted, without any known
conflict with the rights of others which might result
in a material adverse effect on the Company and its
Subsidiaries taken as a whole.
4.13 Partnerships; Joint Ventures. Neither
the Company nor any Subsidiary is a member of any
partnership or joint venture except as permitted under
section 5.4.
4.14 Full Disclosure. No information,
exhibit or report furnished by the Company or any
Subsidiary to any Bank in connection with the
negotiation or execution of this Agreement contained
any material misstatement of fact as of the date when
made or omitted to state a material fact or any fact
necessary to make the statements contained therein not
misleading as of the date when made.
4.15 Fiscal Year. The fiscal year of the Company
and each Subsidiary ends on December 31 of each year.
4.16 Environmental Conditions. To the Company's
knowledge after reasonable investigation, there are no
conditions existing currently or likely to exist during
the term of this Agreement which would subject the
Company or any Subsidiary to damages, penalties,
injunctive relief or cleanup costs under any
Environmental Laws or which require or are likely to
require cleanup, removal, remedial action or other
response pursuant to Environmental Laws by the Company
or any Subsidiary, except for such matters which will
cost the Company and its Subsidiaries less than
$2,500,000 in the aggregate.
4.17 Environmental Judgments, Decrees and
orders. Neither the Company nor any Subsidiary is
subject to any judgment, decree, order or citation
related to or arising out of Environmental Laws and
neither the Company nor any Subsidiary has been named
or listed as a potentially responsible party by any
governmental body or agency in a matter arising under
any Environmental Laws, except for such matters which
will cost the Company and its Subsidiaries less than
$2,500,000 in the aggregate.
ARTICLE V
NEGATIVE COVENANTS
While any part of the credit granted to the
Company is available and while any part of the
principal of or interest on any Note remains unpaid or
any Letter of Credit Obligation remains outstanding,
the Company shall not do any of the following, or
permit any Subsidiary to do any of the following,
without the prior written consent of the Required
Banks:
5.1 Restriction of Indebtedness. Create,
incur, assume or have outstanding any indebtedness for
borrowed money or the deferred purchase price of any
asset (including obligations under Capitalized Leases),
except:
(a) the Notes issued under this Agreement;
(b) outstanding indebtedness in respect of
industrial revenue bond financing shown on the
financial statements referred to in section 4.5 above,
provided that such indebtedness shall not be renewed,
extended or increased;
(c) additional long-term indebtedness
incurred pursuant to an offering of long-term notes,
bonds or similar obligations of the Company; provided
that, simultaneously with the closing of such debt
offering, the Aggregate Commitment shall be reduced by
an amount equal to the net proceeds to the Company of
such long-term indebtedness;
(d) indebtedness described in section
lo.l(p)(iv), provided such indebtedness does not exceed
an aggregate of $5,000,000 outstanding at any one time;
(e) Commercial Paper in an aggregate face
amount of not more than the amount permitted by section
1.9(a);
(f) Nicolet Funding Corp. Loans in aggregate
principal amount of not more than the amount permitted
by section 1.9(e);
(g) unsecured indebtedness which is
subordinated to the prior payment of the Company's
obligations under this Agreement in a manner
satisfactory to the Banks;
(h) indebtedness in respect of Capitalized
Leases, provided that the aggregate lease payments
thereunder do not exceed $1,000,000 in any fiscal year
of the Company; and
(i) other indebtedness not exceeding
$5,000,000 in aggregate principal amount at any time
outstanding.
5.2 Restriction on Liens. Create or permit
to be created or allow to exist any mortgage, pledge,
encumbrance or other lien upon or security interest in
any property or asset now owned or hereafter acquired
by the Company or any Subsidiary, except Permitted
Liens.
5.3 Sale and Leaseback. Enter into any
agreement providing for the leasing by the Company or
a Subsidiary of property which has been or is to be
sold or transferred by the Company or a Subsidiary to
the lessor thereof, or which is substantially similar
in purpose to property so sold or transferred, except
for agreements relating to sales of property not
exceeding $5,000,000 (in gross sales proceeds to the
Company) in the aggregate.
5.4 Acquisitions and Investments. Acquire any
other business or make any loan, advance or extension
of credit to, or investment in, any other person,
corporation or other entity (including without
limitation Subsidiaries, partnerships and joint
ventures), including investments acquired in exchange
for stock or other securities or obligations of any
nature of the Company or any Subsidiary, except:
(a) investments in (i) bank repurchase
agreements; (ii) savings accounts or certificates
of deposit in a financial institution of
recognized standing; (iii) obligations issued or
fully guaranteed by the United States; and (iv)
prime commercial paper maturing within 90 days of
the date of acquisition by the Company or a
Subsidiary;
(b) loans and advances made to employees and
agents in the ordinary course of business, such as
travel and entertainment advances and similar
items;
(c) investments in the Company by a Subsidiary;
(d) credit extended to customers in the
ordinary course of business;
(e) other investments outstanding on
December 31, 1993, and shown on the financial
statements referred to in section 4.5 above,
provided that such investments shall not be
increased; and
(f)additional acquisitions and investments in
present and future Subsidiaries and joint
ventures, provided that all such acquisitions and
investments (valued at original cost without
regard to subsequent increases or decreases in the
value thereof) shall not exceed (i)$15,000,000 in
the aggregate and (ii)$5,000,000 with respect to
any single entity.
5.5 Liquidation; Merger; Disposition of
Assets. Liquidate or dissolve; or merge with or into
or consolidate with or into any other corporation or
entity except a merger of a wholly-owned Subsidiary
into the Company or another wholly-owned Subsidiary; or
sell, lease, transfer or otherwise dispose of all or
any substantial part of its property, assets or
business (other than sales made in the ordinary course
of business), or any stock of any Subsidiary.
5.6 Accounts Receivable. Discount or sell with
recourse, or sell for less than the face amount
thereof, any of its notes or accounts receivable,
whether now owned or hereafter acquired.
5.7 Contingent Liabilities. Guarantee or
become a surety or otherwise contingently liable
(including, without limitation, liable by way of
agreement, contingent or otherwise, to purchase, to
provide funds for payment, to supply funds to or
otherwise invest in the debtor or otherwise to assure
the creditor against loss) for any obligations of
others, except (i) pursuant to the deposit and
collection of checks and similar items in the ordinary
course of business, (ii) in connection with letters of
credit issued for the account of the Company from time
to time by Republic National Bank of New York, provided
that (A) such letters of credit shall not exceed
$10,000,000 in aggregate face amount at any time
outstanding and (B) none of such letters of credit
shall remain outstanding on or after June 1, 1995, and
(iii) other contingent liabilities in respect of third
party obligations not exceeding an aggregate of
$5,000,000 outstanding at any one time.
5.8 Affiliates. Suffer or permit any
transaction with any Affiliate, except on terms not
less favorable to the Company or Subsidiary than would
be usual and customary in similar transactions with
non-affiliated persons.
ARTICLE VI
AFFIRMATIVE COVENANTS
While any part of the credit granted to the
Company is available and while any part of the
principal of or interest on any Note remains unpaid or
any Letter of Credit Obligation is outstanding, and
unless waived in writing by the Required Banks, the
Company shall:
6.1 Financial Status. Maintain:
(a) At all times a Consolidated Current Ratio
of at least 2.00 to 1.00;
(b) A ratio of Consolidated Total
Liabilities to Consolidated Tangible Net Worth of
(i) not more than 1.00 to 1.00 at all times prior
to January 1, 1996 and (ii) not more than 0.85 to
1.00 at all times after December 31, 1995; and
(c) At the end of each fiscal quarter a
Consolidated Fixed Charge Coverage Ratio for the
four consecutive fiscal quarters then ended of at
least 3.00 to 1.00.
6.2 Insurance. Maintain insurance in such
amounts and against such risks as is customary by
companies engaged in the same or similar businesses and
similarly situated.
6.3 Corporate Existence; Obligations. Do,
and cause each Subsidiary to do, all things necessary
to: maintain its corporate existence (except for
mergers permitted by section 5.5) and all rights and
franchises necessary or desirable for the conduct of
its business; (ii) comply in all material respects with
all applicable laws, rules, regulations and ordinances,
and all restrictions imposed by governmental
authorities, including those relating to environmental
standards and controls; and (iii) pay, before the same
become delinquent and before penalties accrue thereon,
all taxes, assessments and other governmental charges
against it or its property, and all of its other
liabilities, except to the extent and so long as the
same are being contested in good faith by appropriate
proceedings in such manner as not to cause any material
adverse effect upon its property, financial condition
or business operations, with adequate reserves provided
for such payments.
6.4 Business Activities. Continue to carry
on its business activities in substantially the manner
such activities are conducted on the date of this
Agreement and not make any material change in the
nature of its business.
6.5 Properties. Keep and cause each
Subsidiary to keep its properties (whether owned or
leased) in good condition, repair and working order,
ordinary wear and tear and obsolescence excepted, and
make or cause to be made from time to time all
necessary repairs thereto (including external or
structural repairs) and renewals and replacements
thereof consistent with the exercise of its reasonable
business judgment.
6.6 Accounting Records; Reports. Maintain and cause
each Subsidiary to maintain a standard and modern
system for accounting in accordance with generally
accepted principles of accounting consistently applied
throughout all accounting periods and consistent with
those applied in the preparation of the financial
statements referred to in section 4.5; and furnish to
the Agent such information respecting the business,
assets and financial condition of the Company and its
Subsidiaries as any Bank may reasonably request and,
without request, furnish to the Agent:
(a) Within 45 days after the end of each of the
first three quarters of each fiscal year of
the Company (i) consolidated and
consolidating balance sheets of the Company
and all of its Subsidiaries as of the close
of such quarter and of the comparable
quarter in the preceding fiscal year; and
(ii) consolidated and consolidating
statements of income and surplus of the
Company and all of its Subsidiaries for such
quarter and for that part of the fiscal year
ending with such quarter and for the
corresponding periods of the preceding
fiscal year; all in reasonable detail and
certified as true and correct (subject to
audit and normal year-end adjustments) by
the chief financial officer of the Company; and
(b) As soon as available, and in any event
within 90 days after the close of each fiscal year
of the Company, a copy of the audit report for such
year and accompanying consolidated and consolidating
financial statements of the Company and its
Subsidiaries, as prepared by independent public
accountants of recognized standing selected by the
Company and reasonably satisfactory to the Required
Banks, which audit report shall be accompanied by an
opinion of such accountants, in form reasonably
satisfactory to the Required Banks, to the effect that
the same fairly present the financial condition of the
Company and its Subsidiaries and the results of its and
their operations as of the relevant dates thereof; and
(c) As soon as available, copies of all reports
or materials submitted or distributed to shareholders
of the Company or filed with the Securities and
Exchange Commission or other governmental agency having
regulatory authority over the Company or any Subsidiary
or with any national securities exchange; and
(d) Promptly, and in any event within 10 days after an
officer of the Company has actual knowledge thereof a
statement of the chief financial officer of the Company
describing: (i) any Default or Event of Default
hereunder, or any other event which, either of itself
or with the lapse of time or the giving of notice or
both, would constitute a default under any other
material agreement to which the Company or any
Subsidiary is a party, together with a statement of the
actions which the Company proposes to take with respect
thereto; (ii) any pending or threatened litigation or
administrative proceeding of the type described in
section 4.9; and (iii) any fact or circumstance which
is materially adverse to the property, financial
condition or business operations of the Company and its
Subsidiaries taken as a whole; and
(e)(i) Promptly, and in any event within 30 days, after
an officer of the Company acquires actual
knowledge that any Reportable Event with respect
to any Plan has occurred, a statement of the chief
financial officer of the Company setting forth
details as to such Reportable Event and the action
which the Company proposes to take with respect
thereto, together with a copy of any notice of
such Reportable Event given to the Pension Benefit
Guaranty Corporation if a copy of such notice is
available to the Company, (ii) promptly after the
filing thereof with the Internal Revenue Service,
copies of each annual report with respect to each
Plan administered by the Company and (iii)
promptly after receipt thereof, a copy of any
notice (other than a notice of general
application) the Company, any Subsidiary or any
member of the Controlled Group may receive from
the Pension Benefit Guaranty Corporation or the
Internal Revenue Service with respect to any Plan
administered by the Company.
The financial statements referred to in (a)
and (b) above shall be accompanied by a certificate by
the chief financial officer of the Company
demonstrating compliance with the covenants in section
6.1 during the relevant period and stating that, as of
the close of the last period covered in such financial
statements, no condition or event had occurred which
constitutes a Default hereunder or which, after notice
or lapse of time or both, would constitute a Default
hereunder (or if there was such a condition or event,
specifying the same). The audit report referred to in
(b) above shall be accompanied by a certificate by the
accountants who prepared the audit report, as of the
date of such audit report, stating that in the course
of their audit, nothing has come to their attention
suggesting that a condition or event has occurred which
constitutes a Default hereunder or which, after notice
or lapse of time or both, would constitute a Default
hereunder (or if there was such a condition or event,
specifying the same); but such accountants shall not be
liable for any failure to obtain knowledge of any such
condition or event. The Agent shall promptly furnish
to each of the Banks (i) copies of the certificates
delivered to the Agent pursuant to this paragraph, and
(ii) copies of any statements delivered to the Agent
pursuant to section 6.6(d) or (e) above.
6.7 Inspection of Records. Permit representatives
of the Banks at their own expense to visit and inspect
any of the properties and examine any of the books and
records of the Company and its Subsidiaries at any
reasonable time and as often as may be reasonably
desired.
6.8 Compliance with Environmental Laws. Timely comply in all
material respects, and cause each Subsidiary to comply in all
material respects, with all applicable Environmental Laws.
6.9 Environmental Audit. Permit, at its expense, at
the request of the Required Banks, an Environmental Audit solely
for the benefit of the Banks, to be conducted by the Banks or an
independent agent selected by the Banks, but only in the event of
a circumstance or condition of the nature described in section
6.10 below which, in the reasonable judgment of the Required
Banks, will cost the Company $2,500,000 or more in the aggregate.
This provision shall not relieve the Company or any Subsidiary
from conducting its own Environmental Audits or taking any other
steps necessary to comply with Environmental Laws.
6.10 Orders, Decrees and other Documents. Provide to
the Agent, immediately upon receipt, copies of any
correspondence, notice, pleading, citation, indictment,
complaint, order, decree, or other document from any source
asserting or alleging a circumstance or condition which requires
or may recfuire a financial contribution by the Company or any
Subsidiary or a cleanup, removal, remedial action, or other
response by or on the part of the Company or any Subsidiary under
Environmental Laws or which seeks damages or civil, criminal or
punitive penalties from the Company or any Subsidiary for an
alleged violation of Environmental Laws; provided, however, such
documentation need not be delivered to the Agent unless and until
the circumstances or conditions referred to therein will,
individually or in the aggregate with any other such matters,
likely result in costs to the Company and its Subsidiaries of
$1,000,000 or more.
ARTICLE VII
DEFAULTS
7.1 Defaults. The occurrence of any one or more of the following
events shall constitute an "Event of Default":
(a) The Company shall fail to pay (i) any interest due on
any Revolving Credit Note, or any other amount payable
hereunder (other than a principal payment on any Note or a
Reimbursement Obligation) by five days after the same
becomes due; or (ii) any principal amount due on any
Revolving Credit Note or any Reimbursement Obligation when
due;
(b) The Company shall default in the performance or observance
of any agreement, covenant, condition, provision or
term contained in Article V (other than section 5.8) or
section 6.1 of this Agreement;
(c) The Company shall default in the performance
or observance of any of the other agreements,
covenants, conditions, provisions or terms in this
Agreement or any Collateral Document and such default
continues for a period of thirty days after written
notice thereof is given to the Company by any of the Banks;
(d) Any representation or warranty made by the
Company herein or any certificate delivered pursuant
hereto, or any financial statement delivered to any
Bank hereunder, shall prove to have been false in any
material respect as of the time when made or given;
(e) The Company or any Subsidiary shall fail to
pay as and when due and payable (whether at maturity,
by acceleration or otherwise) all or any part of the
principal of or interest on any indebtedness of or
assumed by it (including without limitation the Demand
Notes), or of the rentals due under any lease or
sublease, or of any other obligation for the payment of
money, in each case where such payments aggregate
$1,000,000 or more, and such default shall not be cured
within the period or periods of grace, if any,
specified in the instruments governing such
obligations; or default shall occur under any evidence
of, or any indenture, lease, sublease, agreement or
other instrument governing such obligations, and such
default shall continue for a period of time sufficient
to permit the acceleration of the maturity of any such
indebtedness or other obligation or the termination of
such lease or sublease, unless the Company or such
Subsidiary shall be contesting such default in good
faith by appropriate proceedings;
(f) A final judgment which, together with all
other outstanding final judgments against the Company
and its Subsidiaries, or any of them, exceeds an
aggregate of $100,000 shall be entered against the
Company or any Subsidiary and shall remain outstanding
and unsatisfied, unbonded, unstayed or uninsured after
60 days from the date of entry thereof;
(g) The Company or any Subsidiary shall: (i)
become insolvent; or (ii) be unable, or admit in
writing its inability to pay its debts as they
mature; or (iii) make a general assignment for the
benefit of creditors or to an agent authorized to
liquidate any substantial amount of its property; or
(iv) become the subject of an "order for relief" within
the meaning of the United States Bankruptcy Code; or
(v) become the subject of a creditor's petition for
liquidation, reorganization or to effect a plan or
other arrangement with creditors; or (vi) apply to a
court for the appointment of a custodian or receiver
for any of its assets; or (vii) have a custodian or
receiver appointed for any of its assets (with or
without its consent); or (viii) otherwise become the
subject of any insolvency proceedings or propose or
enter into any formal or informal composition or
arrangement with its creditors;
(h) This Agreement, any Note or any Collateral
Document shall, at any time after their respective
execution and delivery, and for any reason, cease to be
in full force and effect or be declared null and void,
or be revoked or terminated, or the validity or
enforceability thereof or hereof shall be contested by
the Company, or the Company shall deny that it has any
or further liability or obligation thereunder or
hereunder, as the case may be; or
(i) Any Reportable Event, which the Required
Banks determine in good faith to constitute grounds for
the termination of any Plan by the Pension Benefit
Guaranty Corporation or for the appointment by the
appropriate United States District Court of a trustee
to administer any Plan, shall have occurred, or any
Plan shall be terminated within the meaning of Title IV
of ERISA, or a trustee shall be appointed by the
appropriate United States District Court to administer
any Plan, or the Pension Benefit Guaranty Corporation
shall institute proceedings to terminate any Plan or to
appoint a trustee to administer any Plan, and in case
of any event described in the preceding provisions of
this subsection (i) the Required Banks determine in
good faith that the aggregate amount of the Company's
liability to the Pension Benefit Guaranty Corporation
under ERISA shall exceed $1,000,000 and such liability
is not covered, for the benefit of the Company, by
insurance.
7.2 Termination of Aggregate Commitment and
Acceleration of Obligations. Upon the occurrence of
any Event of Default:
(a) As to any Event of Default under section
7.1(a) and at any time thereafter, and in each
case, the Required Banks (or the Agent with the
written consent of the Required Banks) may, by
written notice to the Company, immediately
terminate the obligation of the Banks to make
revolving credit loans and issue Letters of Credit
hereunder and declare the unpaid principal balance
of the Revolving Credit Notes, together with all
interest accrued thereon, to be immediately due
and payable; and the unpaid principal balance of
such Notes and all unreimbursed amounts drawn on
Letters of Credit, together with all interest
accrued thereon, shall thereupon be due and
payable without further notice of any kind, all of
which are hereby waived, and notwithstanding
anything to the contrary herein or in the Notes
contained;
(b) As to any Event of Default under section
7.1(g), the obligation of the Banks to make
revolving credit loans and issue Letters of Credit
hereunder shall immediately terminate and the
unpaid principal balance of all Revolving Credit
Notes and all unreimbursed amounts drawn on
Letters of Credit, together with all interest
accrued thereon, shall immediately and forthwith
be due and payable, all without presentment,
demand, protest, or further notice of any kind,
all of which are hereby waived, notwithstanding
anything to the contrary herein or in the Notes
contained;
(c) As to any Event of Default other than an
Event of Default under section 7.1(a) or section
7.1(g) and at any time thereafter, and in each
case, the Required Banks, with the written consent
of all Banks that have acted as placement agent in
the sale of any Commercial Paper then outstanding
(or the Agent with the written consent of such
Banks) may take the actions and exercise the
remedies provided by this section 7.2.
(d) As to each Event of Default, subject to
the limitations set forth in section 7.2(c) above,
the Banks shall have all the remedies for default
provided by the Collateral Documents, as well as
applicable law.
(e) In the event that the unpaid principal balance of
the Revolving Credit Notes becomes immediately due
and payable pursuant to this section 7.2, the
Company shall pay (i) to the appropriate LOC Bank
the sum of the largest drafts which could then or
thereafter be drawn under all outstanding Letters
of Credit, which sum the LOC Bank may hold for the
account of the Company, without interest, for the
purpose of paying any draft presented, with the
excess, if any, to be returned to the Company upon
termination or expiration of such Letters of
Credit, and (ii) to the Agent the aggregate face
amount of all Commercial Paper (including for this
purpose all Nicolet Funding Corp. Loans) then
outstanding, which amount may be held by the
Agent, without interest, to secure the payment in
full of all such Commercial Paper at maturity,
with the excess, if any, to be returned to the
Company upon payment in full of all such
Commercial Paper.
ARTICLE VIII
DEMAND NOTES
8.1 Right of each Bank to Demand Payment.
All amounts outstanding under each of the Demand Notes
are due ON DEMAND by the holder thereof in its sole
discretion; provided that such holder shall give at
least three Business Days' prior written notice of its
intention to make such demand to the Company and the
Agent. Notwithstanding the foregoing, the unpaid
principal balance of the Demand Notes, together with
all interest accrued thereon, shall automatically
become immediately due and payable, without
presentment, demand, protest or further notice of any
kind, all of which are hereby waived, if an Event of
Default under section 7.1(g) shall occur.
Notwithstanding reference to any Event of Default or
termination in this Agreement or any Collateral
Document (except for automatic acceleration provisions
referred to above), such provisions shall have no
application to, or otherwise restrict, each Bank's
right to demand payment under its Demand Note at any
time.
8.2 Cash Collateral. If at any time when
demand for payment is made on any Demand Note, the
aggregate outstanding face amount of all Letters of
Credit shall exceed the Aggregate Commitment (net of
all outstanding Commercial Paper and Nicolet Funding
Corp. Loans issued by the Company thereunder), the
Company shall immediately pay the amount of such excess
to the Agent, which amount (together with all accrued
interest thereon) may be held by the Agent in an
interest-bearing account as cash collateral for the
purpose of securing the repayment of any draft
presented in respect of outstanding Letters of Credit,
with the excess, if any, to be returned to the Company
as and when such Letters of Credit terminate or expire.
ARTICLE IX
THE AGENT
9.1 Appointment and Powers. Each of the
Banks hereby appoints Firstar Bank Milwaukee, National
Association as Agent for the Banks hereunder, and
authorizes the Agent to take such action as Agent on
its behalf and to exercise such powers as are
specifically delegated to the Agent by the terms
hereof, together with such powers as are reasonably
incidental thereto. The duties of the Agent shall be
entirely ministerial; the Agent shall not have any duty
to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions
of this Agreement, the Notes or any related document,
or to enforce such performance, or to inspect the
property (including the books and records) of the
Company or any of its subsidiaries; and the Agent shall
not be required to take any action which exposes the
Agent to personal liability (unless indemnification
with respect to such action satisfactory to the Agent
in its sole discretion is provided to the Agent by the
Required Banks) or which is contrary to this Agreement
or the Notes or applicable law. Firstar Bank
Milwaukee, National Association agrees to act as Agent
upon the express terms and conditions contained in this
Article IX.
9.2 Responsibility. The Agent (i) makes no
representation or warranty to any Bank and shall not be
responsible to any Bank for any oral or written
recitals, reports, statements, warranties or
representations made in or in connection with this
Agreement or any Note; (ii) shall not be responsible
for the due execution, legality, validity,
enforceability, genuineness, sufficiency,
collectibility or value of this Agreement or any Note
or any other instrument or document furnished pursuant
thereto; (iii) may treat the payee of any Note as the
owner thereof until the Agent receives written notice
of the assignment or transfer thereof signed by such
payee and in form satisfactory to the Agent; (iv) may
execute any of its duties under this Agreement by or
through employees, agents and attorneys in fact and
shall not be answerable for the default or misconduct
of any such employee, agent or attorney in fact
selected by it with reasonable care; (v) may (but shall
not be required to) consult with legal counsel
(including counsel for the Company), independent public
accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be
taken in good faith by it in accordance with advice of
such counsel, accountants or experts; (vi) shall be
entitled to rely upon any note, notice, consent,
waiver, amendment, certificate, affidavit, letter,
telegram, telex, cable or other document or
communication believed by it to be genuine and signed
or sent by the proper party or parties, and may rely on
statements contained therein without further inquiry or
investigation. Neither the Agent nor any of its
directors, officers, agents, or employees shall be
liable for any action taken or omitted to be taken by
it or them under or in connection with this Agreement
or the Notes, except for its or their own gross
negligence or willful misconduct.
9.3 Agent's Indemnification. The Banks
agree to indemnify and reimburse the Agent (to the
extent not reimbursed by the Company), ratably from and
against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or
asserted against the Agent as such in any way relating
to or arising out of this Agreement or any action taken
or omitted by the Agent under this Agreement, provided
that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross
negligence or willful misconduct. Without limitation
of the foregoing, each Bank agrees to reimburse the
Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the
preparation, execution, administration or enforcement
of, or the preservation of any rights under, this
Agreement to the extent that the Agent is not
reimbursed for such expenses by the Company.
9.4 Rights as a Lender. With respect to its
Commitment and the Notes issued to it, Firstar Bank
Milwaukee, National Association, in its individual
capacity as a Bank, shall have, and may exercise, the
same rights and powers under this Agreement and the
Notes payable to it as any other Bank has under this
Agreement and Notes, and the terms "Bank" and "Banks",
unless the context otherwise requires, shall include
Firstar Bank Milwaukee, National Association in its
individual capacity as a Bank. Firstar Bank Milwaukee,
National Association and its affiliates may accept
deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of
banking or trust business with, the Company or any of
its subsidiaries and any person, firm or corporation
who may do business with or own securities of the
Company or any subsidiary, all as if it were not the
Agent, and without any duty to account therefor to the
Banks.
9.5 Credit Investigation. Each of the Banks severally
represents and warrants to each of the other Banks and
to the Agent that it has made its own independent
investigation and evaluation of the financial condition
and affairs of the Company and its Subsidiaries in
connection with such Bank's execution and delivery of
this Agreement and the making of its loans and has not
relied on any information or evaluation provided by any
other Bank or the Agent in connection with any of the
foregoing (other than information provided by the
Company to the Agent for transmittal to the Banks in
connection with the foregoing); and each Bank
represents and warrants to each other Bank and to the
Agent that it shall continue to make its own
independent investigation and evaluation of the credit-
worthiness of the Company and its Subsidiaries while
the Commitments and/or the Notes are outstanding.
9.6 Compensation. The Agent shall receive
such compensation for its services as Agent under this
Agreement as may be agreed from time to time by the
Company and the Agent.
ARTICLE X
MISCELLANEOUS
10.1 Accounting Terms; Definitions. Except
as otherwise provided, all accounting terms shall be
construed in accordance with generally accepted
accounting principles consistently applied and
consistent with those applied in the preparation of the
financial statements referred to in section 4.5, and
financial data submitted pursuant to this Agreement
shall be prepared in accordance with such principles.
As used herein:
(a) the term "Affiliate,, means any person,
firm or corporation, which, directly or
indirectly, controls, is controlled by, or is
under common control with, the Company or a
Subsidiary.
(b) the term "Business Day" means any day
other than a Saturday or Sunday on which banks in
the States of Wisconsin and Illinois are open for
the transaction of substantially all of their
banking functions; provided, however, that for
purposes of calculating the Basic LIBOR Rate, the
LIBOR Interest Periods, and the election of LIBOR
Pricing Options, the term "Business Day" shall
mean in addition only those days on which dealings
in U.S. dollar deposits are carried out by U.S.
financial institutions in the London interbank
market.
(c) the term "Capitalized Lease,, means any
lease which is capitalized on the books of the
lessee, or should be so capitalized under
generally accepted accounting principles.
(d) the term "Commercial Paper" means (i) all commercial paper
issued by the Company from time to time, including sales of
commercial paper through one or more of the Banks acting as
placement agent pursuant to separate agreements between the
Company and such Bank or Banks, and (ii) where expressly so
included by the terms of this Agreement, all Nicolet Funding
Corp. Loans described in section 1.9(e).
(e) the term "Consolidated Current Ratio,, means the
relationship, expressed as a numerical ratio, between:
(i) the amount of all assets which under generally
accepted principles of accounting would appear as current
assets on the consolidated balance sheet of the Company and
its Subsidiaries, excluding prepaid expenses which are not
refundable on the date the determination is made,
And
(ii) the amount of all liabilities which under generally
accepted principles of accounting would appear as current
liabilities on such balance sheet, including all indebtedness
payable on demand or maturing (whether by reason of specified
maturity, fixed prepayments, sinking funds or accruals of any
kind, or otherwise) within 12 months or less from the date of
the relevant statement, including all lease and rental
obligations due in 12 months or less under leases, whether or
not Capitalized Leases, and including customers' advances and
progress billings on contracts.
(f) the term "Consolidated Fixed Charge Coverage Ratio" means,
for any period, the relationship, expressed as a numerical
ratio, between:
(i) the Consolidated Net Earnings of the Company for such
period plus the sum of (A) depreciation, amortization and
all other noncash deductions arising in the normal course
of operations and shown on the Company's financial
statements for such period, (B) net interest expense on
indebtedness of the Company (including the interest
component of Capitalized Leases) for such period and (C)
rental expense under leases other than Capitalized
Leases for such period; and
(ii) the sum of (A) net interest expense on
indebtedness of the Company (including the
interest component of Capitalized Leases) for such
period, (B) scheduled principal payments on
indebtedness of the Company during such period,
(C) the principal component of required payments
in respect of Capitalized Leases during such
period and (D) rental expense under leases other
than Capitalized Leases for such period.
(g) the term "Consolidated Total Liabilities,,
means all liabilities of the Company and its
Subsidiaries properly appearing on a consolidated
balance sheet of the Company and its Subsidiaries in
accordance with generally accepted accounting
principles.
(h) the term "Consolidated Net Earnings" means
the excess of:
(i) all revenues and income derived
from operation in the ordinary course of business
(excluding extraordinary gains and profits upon the
disposition of investments and fixed assets),
Over:
(ii) all expenses and other proper
charges against income (including payment or provision
for all applicable income and other taxes, but
excluding extraordinary losses and losses upon the
disposition of investments and fixed assets), all as
determined in accordance with generally accepted
accounting principles as applied on a consolidated
basis to the Company and its Subsidiaries.
(i) the term "Consolidated Tangible Net Worth"
means the total of all assets properly appearing on the
consolidated balance sheet of the Company and its
Subsidiaries in accordance with generally accepted
accounting principles, less the sum of the following:
the book amount of all such assets which would be
treated as intangibles under generally accepted
accounting principles, including, without limitation,
all such items as good will, trademarks, trademark
rights, trade names, tradename rights, brands,
copyrights, patents, patent rights, licenses and
unamortized debt discount and expense;
any write-up in the book value of
any such assets resulting from a revaluation thereof
subsequent to December 31, 1993;
(iii) all reserves, including
reserves for depreciation, obsolescence, depletion,
insurance, and inventory valuation, but excluding
contingency reserves not allocated for any particular
purpose and not deducted from assets;
(iv) the amount, if any, at which any
shares of stock of the Company or any Subsidiary appear
on the asset side of such consolidated balance sheet;
(v) all liabilities of the Company and
its Subsidiaries shown on such balance sheet; and
(vi) all investments in foreign
affiliates and nonconsolidated domestic affiliates.
(j) the term "Controlled Group" means a
controlled group of corporations as defined in section
1563 of the Internal Revenue Code of 1986, as amended,
of which the Company is a part.
(k) The term "Default" means any event or
condition which with the passage of time, the giving of
notice or both would constitute an Event of Default.
(1) The term "Environmental Audit" means a review
for the purpose of determining whether the Company and
each Subsidiary complies with Environmental Laws and
whether there exists any condition or circumstance
which requires or will require a cleanup, removal, or
other remedial action under Environmental Laws on the
part of the Company or any Subsidiary including, but
not limited to, some or all of the following:
(i) on site inspection including review
of site geology, hydrogeology, demography, land use and
population;
(ii) taking and analyzing soil borings
and installing ground water monitoring wells and
analyzing samples taken from such wells;
(iii) taking and analyzing of air samples and
testing of underground tanks;
(iv) reviewing plant permits, compliance
records and regulatory correspondence, and interviewing
enforcement staff at regulatory agencies;
(v) reviewing the operations,
procedures and documentation of the Company and its
Subsidiaries; and
(vi) interviewing past and present
employees of the Company and its Subsidiaries.
(m) The term "Environmental Laws" means all
federal, state and local laws including statutes,
regulations, ordinances, codes, rules and other
governmental restrictions and requirements relating to
the discharge of air pollutants, water pollutants or
process waste water or otherwise relating to the
environment or hazardous substances including, but not
limited to, the Federal Solid Waste Disposal Act, the
Federal Clean Air Act, the Federal Clean Water Act, the
Federal Resource Conservation and Recovery Act of 1976,
the Federal Comprehensive Environmental Responsibility
Cleanup and Liability Act of 1980, regulations of the
Environmental Protection Agency, regulations of the
Nuclear Regulatory Agency, and regulations of any state
department of natural resources or state environmental
protection agency now or at any time hereafter in
effect.
(n) the term "ERISAII means the Employee
Retirement Income Security Act of 1974, as the same may
be in effect from time to time.
(o) the term "Letter of Credit Obligations" means
the aggregate undrawn face amounts of all outstanding
Letters of Credit and all unpaid Reimbursement
obligations.
(p) the term "Permitted Liens" means:
(i) liens on property financed with
the proceeds of industrial revenue bonds permitted
by section 5.1(b) given to secure indebtedness
evidenced by such bonds and other obligations of the
Company directly relating thereto;
(ii) liens for taxes, assessments or
governmental charges, and liens incident to
construction, which are either not delinquent or are
being contested in good faith by the Company or a
Subsidiary by appropriate proceedings which will
prevent foreclosure of such liens, and against which
adequate reserves have been provided; and easements,
restrictions, minor title irregularities and similar
matters which have no adverse effect as a practical
matter upon the ownership and use of the affected
property by the Company or any Subsidiary;
(iii) liens or deposits in
connection with worker's compensation or other
insurance or to secure customs, duties, public or
statutory obligations in lieu of surety, stay or appeal
bonds, or to secure performance of contracts or bids
(other than contracts for the payment of money
borrowed), or deposits required by law or governmental
regulations or by any court order, decree, judgment or
rule as a condition to the transaction of business or
the exercise of any right, privilege or license; or
other liens or deposits of a like nature made in the
ordinary course of business; provided that the
aggregate amount of liabilities (including interest and
penalties, if any) of the Company secured by any stay
or appeal bond shall not exceed $10,000,000 at any one
time outstanding; and
(iv) purchase money liens on property
acquired in the ordinary course of business, to finance
or secure a portion of the purchase price thereof, and
liens on property acquired existing at the time of
acquisition; provided that in each case such lien shall
be limited to the property so acquired, the liability
secured by such lien does not exceed either the
purchase price or the fair market value of the asset
acquired, and the indebtedness secured by such lien is
permitted by section 5.1.
(q) the term "Plan" means any employee pension
benefit plan subject to Title IV of ERISA maintained by
the Company, any of its Subsidiaries, or any member of
the Controlled Group, or any such plan to which the
Company, any of its Subsidiaries, or any member of the
Controlled Group is required to contribute on behalf of
any of its employees.
(r) the term "Reimbursement obligations" means
all obligations of the Company to reimburse each LOC
Bank for all drawings under Letters of Credit.
(s) the term "Reportable Event" means a
reportable event as that term is defined in Title iv of
ERISA.
(t) The term "Required Banks" means Banks
holding at least 66 2/3% of the Aggregate
Commitment, or if the Aggregate Commitment has
been terminated, Banks holding at least 66 2/3% in
aggregate principal amount of the loans and Letter
of Credit Obligations outstanding hereunder.
(u) the term "Subsidiary" means a
corporation of which the Company owns, directly or
through another Subsidiary, at the date of
determination, more than 50% of the outstanding
stock having ordinary voting power for the
election of directors, irrespective of whether or
not at such time stock of any other class or
classes might have voting power by reason of the
happening of any contingency.
(v) The term "Unfunded Liabilities" means,
with regard to any Plan, the excess of the current
value of the Plan's benefits guaranteed under
ERISA over the current value of the Plan's assets
allocable to such benefits.
10.2 Amendments, Etc. No waiver, amendment,
settlement or compromise of any of the rights of any
Bank under this Agreement, any Note or any of the
Collateral Documents shall be effective for any purpose
unless it is in a written instrument executed and
delivered by the parties authorized to act by this
section 10.2. Subject to the provisions of this section
10.2, the Required Banks (or the Agent with the written
consent of the Required Banks) and the Company may
enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to this
Agreement, the Notes, or the Collateral Documents or
changing in any manner the rights of the Banks or the
Company hereunder or thereunder or waiving any Event of
Default hereunder; provided, however, that no such
supplemental agreement shall, without the consent of
all of the Banks:
(a) Extend the maturity of any Note or
reduce the principal amount thereof, or reduce the
rate or amount or change the time of payment of
interest or fees payable on any Note or otherwise
under this Agreement.
(b) Amend the definition of Required Banks.
(c) Extend the Termination Date, or increase
the amount of the Commitment of any Bank
hereunder, or permit the Company to assign its
rights under this Agreement.
(d) Alter the provisions of section 2.5 of
this Agreement.
(e) Amend any provision of this Agreement
requiring a pro rata sharing among the Banks.
(f) Amend this section 10.2.
No amendment of any provision of this Agreement
relating to the Agent shall be effective without the
written consent of the Agent.
10.3 Expenses; Indemnity.
(a) The Company shall pay, or reimburse each Bank for
(i) all reasonable out-of-pocket costs and expenses
(including, without limitation, reasonable attorneys'
fees and expenses) paid or incurred by such Bank in
connection with the negotiation, preparation,
execution, delivery, and administration of this
Agreement, the Notes, the Collateral Documents and any
other document required hereunder or thereunder,
including without limitation any amendment, supplement,
modification or waiver of or to any of the foregoing;
provided that such costs and expenses of each Bank
(other than the Agent) in connection with the
negotiation, preparation, execution and delivery of
this Agreement, the Notes and the Collateral Documents
shall not exceed $2,500; (ii) all reasonable out-of-
pocket costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses)
paid or incurred by such Bank after Default, before and
after judgment, in enforcing, protecting or preserving
its rights under this Agreement, the Notes, the
Collateral Documents and any other document required
hereunder or thereunder, including without limitation
the enforcement of rights against, or realization on,
any collateral or security therefor; and (iii) any and
all recording and filing fees and any and all stamp,
excise, intangibles and other taxes, if any,
(including, without limitation, any sales, occupation,
excise, gross receipts, franchise, general corporation,
personal property, privilege or license taxes, but not
including taxes levied upon the net income of such Bank
by the federal government or the state (or political
subdivision of a state) where such Bank's principal
office is located), which may be payable or determined
to be payable in connection with the negotiation,
preparation, execution, delivery, administration or
enforcement of this Agreement, the Notes, the
Collateral Documents or any other document required
hereunder or thereunder or any amendment, supplement,
modification or waiver of or to any of the foregoing,
or consummation of any of the transactions contemplated
hereby or thereby, including all costs and expenses
incurred in contesting the imposition of any such tax,
and any and all liability with respect to or resulting
from any delay in paying the same, whether such taxes
are levied upon such Bank, the Company or otherwise.
(b) The Company agrees to indemnify each Bank
against any and all losses, claims, damages,
liabilities and expenses, (including, without
limitation, reasonable attorneys' fees and expenses)
incurred by such Bank arising out of, in any way
connected with, or as a result of (i) any acquisition
or attempted acquisition of stock or assets of another
person or entity by the Company or any subsidiary, (ii)
the use of any of the proceeds of any loans made
hereunder by the Company or any subsidiary for the
making or furtherance of any such acquisition or
attempted acquisition, (iii) the construction or
operation of any facility owned or
operated by the Company or any Subsidiary, or
resulting from any pollution or other environmental
condition on the site of, or caused by, any such
facility, (iv) the negotiation, preparation, execution,
delivery, administration, and enforcement of this
Agreement, the Note, the Collateral Documents and any
other document required hereunder or thereunder,
including without limitation any amendment, supplement,
modification or waiver of or to any of the foregoing or
the consummation or failure to consummate the
transactions contemplated hereby or thereby, or the
performance by the parties of their obligations
hereunder or thereunder, (v) any claim, litigation,
investigation or proceedings related to any of the
foregoing, whether or not any Bank is a party thereto;
provided, however, that such indemnity shall not apply
to any ouch losses, claims, damages, liabilities or
related expenses arising from (A) any unexcused breach
by such Bank of its obligations under this Agreement or
any Collateral Document, (B) any commitment made by
such Bank to a person other than the Company or any
Subsidiary which would be breached by the performance
of such Bank's obligations under this Agreement or (C)
gross negligence or willful misconduct of such Bank.
(c) The foregoing agreements and indemnities
shall remain operative and in full force and
effect regardless of termination of this
Agreement, the consummation of or failure to
consummate either the transactions contemplated by
this Agreement or any amendment, supplement,
modification or waiver, the repayment of any loans
made hereunder, the termination of the Letter of
Credit Obligations, the invalidity or
unenforceability of any term or provision of this
Agreement or any of the Notes or any Collateral
Document, or any other document required hereunder
or thereunder, any investigation made by or on
behalf of any Bank, the Company or any Subsidiary,
or the content or accuracy of any representation
or warranty made under this Agreement, any
Collateral Document or any other document required
hereunder or thereunder.
(d) The foregoing indemnities shall remain
operative and in full force and effect regardless
of the termination of this Agreement, the
consummation of the transactions contemplated by
this Agreement, the repayment of the loans made
hereunder, the invalidity or unenforceability of
any term or provision of this Agreement or any of
the Notes, any investigation made by or on behalf
of the Bank or the Company, and the content of
accuracy of any representation or warranty made
under this Agreement.
10.4 Securities Act of 1933. Each Bank
represents that it is acquiring the Notes payable to it
without any present intention of making a sale or other
distribution of such Notes, provided each Bank reserves
the right to sell its Notes or participations therein.
10.5 No Agency. Except as expressly provided
herein, nothing in this Agreement and no action taken
pursuant hereto shall cause any Bank to be treated as
the agent of any other Bank, or shall be deemed to
constitute the Banks a partnership, association, joint
venture or other entity.
10.6 Successors. The provisions of this
Agreement shall inure to the benefit of any holder of
one or more of the Notes, and shall inure to the
benefit of and be binding upon any successor to any of
the parties hereto. This Agreement shall not create
any rights in favor of any other party (including
without limitation any holder of Commercial Paper,
including for this purpose Nicolet Funding Corp. Loans)
and the Banks shall have no liability whatsoever to any
holder of Commercial Paper as a result of this
Agreement. No delay on the part of any Bank or any
holder of any of the Notes in exercising any right,
power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise of any
right, power or privilege hereunder preclude other or
further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies
herein specified are cumulative and are not exclusive
of any rights or remedies which the Banks or the holder
of any of the Notes would otherwise have.
10.7 Survival. All agreements,
representations and warranties made herein shall
survive the execution of this Agreement, the making of
the loans hereunder and the execution and delivery of
the Notes.
10.8 Wisconsin Law. This Agreement and the
Notes issued hereunder shall be governed by and
construed in accordance with the internal laws of the
State of Wisconsin, except to the extent superseded by
federal law.
10.9 Counterparts. This Agreement may be
signed in any number of counterparts with the same
effect as if the signatures thereto and hereto were
upon the same instrument.
10.10 Notices. All communications or
notices required under this Agreement shall be deemed
to have been given on the date when deposited in the
United States mail, postage prepaid, and addressed as
follows (unless and until any of such parties advises
the other in writing of a change in such address): (a)
if to the Company, with the full name and address of
the Company as shown on this Agreement below;
and (b) if to any of the Banks with the full name and
address of such Bank as shown on this Agreement above,
to the attention of the officer of the Bank executing
the form of acceptance of this Agreement.
10.11 Participations. With the prior written
consent of the Company and the Agent, each Bank may
sell to another financial institution or institutions
interests in its Notes (except that each Bank may sell
such interests without such consent to other financial
institutions owned directly or indirectly by it or by
its controlling corporation) and, in connection with
each such sale, and thereafter, disclose to any
purchaser or potential purchaser of such interest any
financial information such Bank may have concerning the
Company and its Subsidiaries.
10.12 Entire Agreement; No Agency. This
Agreement and the other documents referred to herein
contain the entire agreement between the Banks and the
Company with respect to the subject matter hereof,
superseding all previous communications and
negotiations, and no representation, undertaking,
promise or condition concerning the subject matter
hereof shall be binding upon the Banks unless clearly
expressed in this Agreement or in the other documents
referred to herein. Nothing in this Agreement or in
the other documents referred to herein and no action
taken pursuant hereto shall cause the Company to be
treated as an agent of any Bank, or shall be deemed to
constitute the Banks and the Company a partnership,
association, joint venture or other entity.
10.13 Consent to Jurisdiction. The
Company hereby consents to the jurisdiction of any
state or federal court situated in Milwaukee County,
Wisconsin, and waives any objection based on lack of
personal jurisdiction, improper venue or forum non
conveniens, with regard to any actions, claims,
disputes or proceedings relating to this Agreement, any
Note, any of the Collateral Documents, or any other
document delivered hereunder or in connection herewith,
or any transaction arising from or connected to any of
the foregoing. Nothing herein shall affect the right
of the Banks, or any of them, to serve process in any
manner permitted by law, or limit the right of any
Banks, or any of them, to bring proceedings against the
Company or its property or assets in the competent
courts of any other jurisdiction or jurisdictions.
If the foregoing is satisfactory to you, please sign
the form of acceptance below and return a signed
counterpart hereof to the Company. When this
instrument has been executed and delivered by all of
the Banks, it will evidence a binding agreement between
the Banks and the Company.
Very truly yours,
OSHKOSH B'GOSH, INC.
Address: 112 Otter Avenue
Oshkosh, WI 54901-5008
By: /S/ DAVID L. OMACHINSKI
(CORPORATE SEAL) Vice President of Finance
The foregoing Agreement is hereby confirmed
and accepted as of the date thereof.
FIRSTAR BANK MILWAUKEE,
NATIONAL ASSOCIATION, as
the Agent and as a Bank
By: /S/ STEVE CARLTON
Title: Assistant Vice President
BANK ONE, MILWAUKEE, NA
By: /S/ A.F. MAGGORIE
Title: Vice President
HARRIS TRUST AND SAVINGS BANK
By: /S/ GEORGE M. DELUHY
Title: Vice President
NORWEST BANK WISCONSIN,
NATIONAL ASSOCIATION
By: /S/ DANIEL G. FRAZIER
Title: Vice President
EXHIBIT 1.1
REVOLVING CREDIT NOTE
$ 19-
FOR VALUE RECEIVED, OshKosh B'Gosh, Inc., a Wisconsin
corporation, promises to pay to the order of ,
the principal sum of Dollars ($ )
at the Main Office of Firstar Bank Milwaukee, National
Association in Milwaukee, Wisconsin, on June 24, 1997.
The unpaid principal balance hereof shall bear
interest, payable on the dates specified in the Credit
Agreement referred to below, computed at the Applicable
Rate as defined in such Credit Agreement.
Principal amounts unpaid at the maturity hereof
(whether by fixed maturity or acceleration) shall bear
interest from and after maturity until paid computed at
a rate equal to 2% per annum plus the rate otherwise
payable hereunder. Principal of and interest on this
Note shall be payable in lawful money of the United
States of America.
This Note constitutes one of the Revolving Credit
Notes issued under a Credit Agreement dated as of June
24, 1994, among the undersigned and Firstar Bank
Milwaukee, National Association, for itself and as
Agent, and the other banks party thereto, to which
Agreement reference is hereby made for a statement of
the terms and conditions on which loans in part
evidenced hereby were or may be made, and for a
description of the conditions upon which this Note may
be prepaid, in whole or in part, or its maturity
accelerated.
OSHKOSH B'GOSH, INC.
By: Vice President of Finance
(CORPORATE SEAL)
EXHIBIT 1.2
DEMAND NOTE
$ 19-
FOR VALUE RECEIVED, OshKosh B'Gosh, Inc., a
Wisconsin corporation, promises to pay to the order of
, the principal sum of Dollars
($ ) at the Main Office of Firstar Bank Milwaukee,
National Association, in Milwaukee, Wisconsin, ON
DEMAND. The unpaid principal balance hereof shall bear
interest, payable on the dates specified in the Credit
Agreement referred to below, computed at the Applicable
Rate as defined in such Credit Agreement.
Principal amounts unpaid at the maturity thereof (whether by
fixed maturity or acceleration) shall bear interest from and
after demand until paid computed at a rate equal to 2% per annum
plus the rate otherwise payable
hereunder. Principal of and interest on this Note shall be
payable in lawful money of the United States.
This Note constitutes one of the Demand Notes issued
under a Credit Agreement dated as of June 24, 1994 among the
undersigned and Firstar Bank Milwaukee, National Association,
for itself and as Agent, and the other banks party thereto, to
which Agreement reference is hereby made for a statement of the
terms and conditions on which loans in part evidenced hereby
were made and for a description of the terms and conditions upon
which this Note may be prepaid, in whole or in part, or its
maturity accelerated.
OSHKOSH B'GOSH, INC.
By: Vice President of Finance
(CORPORATE SEAL)
EXHIBIT 2.1
COMMERCIAL PAPER REPORT/LOAN REQUEST
19-
Memorandum to:
Firstar Bank Milwaukee,
National Association, as Agent
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Re: Credit Agreement Dated as of June 24, 1994
(the "Credit Agreement")
Part 1: Commercial Paper Report
The aggregate principal amount of all Commercial
Paper (including for this purpose all Nicolet Funding Corp.
Loans) of the Company now outstanding is $
Part 2: Loan Request
The Company hereby applies to the Agent for a loan under the
Credit Agreement to be made on 19 in the principal amount of
$ . If such loan is to be subject to a LIBOR Pricing Option,
the LIBOR Interest Period is months.
The Company hereby certifies as follows:
(a) All of the representations and
warranties set forth in Article IV of the Credit
Agreement continue to be true on the date hereof,
except that the financial statements referred to in
section 4.5 of the Credit Agreement shall be deemed to
be the most recent consolidated financial statements of
the Company delivered pursuant to section 6.6(a) or (b)
of the Credit Agreement.
(b) At the date hereof, no Default or Event
of Default under the Credit Agreement has occurred and
is continuing.
OSHKOSH B'GOSH, INC.
By:
Title:
AMENDMENT NO. 1 TO CREDIT AGREEMENT
As of June 30, 1994
Firstar Bank Milwaukee,
National Association
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Bank one, Milwaukee, NA
111 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
Norwest Bank Wisconsin,
National Association
100 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Gentlemen:
Please refer to that certain Credit Agreement
dated as of June 24, 1994 (the "Credit Agreement")
between the undersigned Oshkosh B'Gosh, Inc., a
Delaware corporation (the "Company") and you (the
"Banks"). All capitalized terms used and not otherwise
defined herein shall have the meanings given to such
terms by the Credit Agreement.
1. Amendments to Credit Agreement. The Company
requests that the Banks agree to amend the Consolidated Fixed
Charge Coverage Ratio covenant set forth in section 6.1(c) of the
Credit Agreement as set forth below. Subject to all of the terms
and conditions hereof, the Banks agree to amend such covenant as
set forth below.
Therefore, subject to the terms and conditions set forth
herein, the Credit Agreement shall be amended, as of the date
first written above, as follows:
(a) All references to the Credit Agreement in the
Credit Agreement and in any of the Collateral Documents shall
refer to the Credit Agreement as amended hereby.
(b) Section 6.1(c) of the Credit Agreement is amended
to read in its entirety as follows:
(c) At the end of each fiscal quarter set forth in the table
below, a Consolidated Fixed Charge Coverage Ratio for the four
consecutive fiscal quarters then ended of at least the amount set
forth opposite such fiscal quarter:
Consolidated Fixed
Fiscal Quarter Ending Charge Coverage Ratio
1. June 30, 1994 and 1.5:1.0
September 30, 1994
2. December 31, 1994, 2.0:1.0
March 31, 1995,
June 30, 1995 and
September 30, 1995
3. December 31, 1995, 2.5:1.0
March 31, 1996,
June 30, 1996 and
September 30, 1996
4. December 31, 1996 3.0:1.0
and thereafter
2. Representations. The Company repeats and reaffirms the
representations and warranties set forth in Article IV of the
Credit Agreement. The Company also represents and warrants that
the execution, delivery and performance of this Amendment are
within the corporate powers of the Company, have been duly
authorized by all necessary corporate action and do not and will
not (i) violate any provision of the certificate of incorporation
or by-laws of the Company or of any law, regulation, order, or
judgment presently in effect having applicability to the Company
or (ii) require the consent or approval of, or filing or
registration with, any governmental body, agency or authority; or
(iii) result in any breach of or constitute a default under any
indenture or other agreement or instrument under which the
Company is a party.
3. Confirmation of Credit Agreement. Except as
expressly provided above, the Credit Agreement shall
remain in full force and effect.
4. Fees and Expenses. The Company shall be
responsible for the payment of all fees and out-of-
pocket disbursements incurred by the Banks in
connection with the preparation, execution, delivery,
administration and enforcement of this Amendment and
including without limitation the reasonable fees and
disbursements of counsel for the Agent.
5. Miscellaneous. The provisions of this Amendment
shall inure to the benefit of and be binding upon any
successor to any of the parties hereto. All
agreements, representations and warranties made herein
shall survive the execution of this Amendment and the
extension of credit under the Credit Agreement, as so
amended. This Amendment shall be governed by and
construed in accordance with the internal laws of the
State of Wisconsin. This Amendment may be signed in
any number of counterparts with the same effect as if
the signatures thereto and hereto were upon the same
instrument.
If the foregoing is satisfactory to you, please
sign the form of acceptance below and return a signed
counterpart hereof to the Company.
Very truly yours,
OSHKOSH B'GOSH, INC.
By: /S/ DAVID L. OMACHINSKI
Vice President of Finance
(Corporate Seal)
Agreed to as of the date first above written.
FIRSTAR BANK MILWAUKEE,
NATIONAL ASSOCIATION
By: /S/STEVE CARLTON
Title: Assistant Vice President
BANK ONE, MILWAUKEE, NA
By: /S/ A.F. MAGGIORE
Title: Vice President
HARRIS TRUST AND SAVINGS BANK
By: /S/GEORGE M. DELUHY
Title: Vice President
NORWEST BANK WISCONSIN,
NATIONAL ASSOCIATION
By: /S/ DANIEL G. FRAZIER
Title: Vice President
AMENDMENT NO. 2 TO CREDIT AGREEMENT
As of December 31, 1994
Firstar Bank Milwaukee,
National Association
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Bank One, Milwaukee, NA
111 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
Norwest Bank Wisconsin,
National Association
100 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Gentlemen:
Please refer to that certain Credit Agreement dated as
of June 24, 1994, as amended by Amendment No. 1
thereto dated as of June 30, 1994 (the "Credit
Agreement") between the undersigned Oshkosh B'Gosh, Inc., a
Delaware corporation (the "Company") and you (the
Banks"). All capitalized terms used and not otherwise
defined herein shall have the meanings given to such
terms by the Credit Agreement.
I. Amendments to Credit Agreement. The Company
requests that the Banks agree to amend clause (ii)
of section 5.7 of the Credit Agreement (Contingent
Liabilities) permitting certain outstanding letters
of credit issued for the account of the Company by
Republic National Bank of New York. Subject to all
of the terms and conditions hereof, the Banks agree
to amend such covenant as set forth below.
Therefore, subject to the terms and conditions set
forth herein, the Credit Agreement shall be amended,
as of the date first written above, as follows:
(a) All references to the Credit Agreement in the
Credit Agreement and in any of the Collateral
Documents shall refer to the Credit Agreement as
amended hereby.
(b) Clause (ii) of section 5.7 of the Credit
Agreement is amended to read in its entirety as
follows:
(ii) in connection with letters of
credit issued for the account of the
Company from time to time by Republic
National Bank of New York, provided that
(A) such letters of credit shall not
exceed $15,000,000 in aggregate face
amount at any time outstanding and (B)
none of such letters of credit shall
remain outstanding on or after October 1,
1995, and
2.Representations. The Company repeats and reaffirms
the representations and warranties set forth in
Article IV of the Credit Agreement as if made on and
as of the date hereof. The Company also represents
and warrants that the execution, delivery and
performance of this Amendment are within the
corporate powers of the Company, have been duly
authorized by all necessary corporate action and do
not and will not (i) violate any provision of the
certificate of incorporation or by-laws of the
Company or of any law, regulation, order, or
judgment presently in effect having applicability to
the Company or (ii) require the consent or approval
of, or filing or registration with, any governmental
body, agency or authority; or (iii) result in any
breach of or constitute a default under any
indenture or other agreement or instrument under
which the Company is a party.
3.Confirmation of Credit Agreement. Except as expressly
provided above, the Credit Agreement shall remain in full
force and effect.
4.Fees and Expenses. The Company shall be responsible for the
payment of all fees and out-of-pocket disbursements incurred
by the Banks in connection with the preparation, execution,
delivery, administration and enforcement of this Amendment and
including without limitation the reasonable fees and
disbursements of counsel for the Agent.
5.Miscellaneous. The provisions of this Amendment shall inure
to the benefit of and be binding upon any successor to any of
the parties hereto. All agreements, representations and
warranties made herein shall survive the execution of this
Amendment and the extension of credit under the Credit
Agreement, as so amended. This Amendment shall be governed by
and construed in accordance with the internal laws of the
State of Wisconsin. This Amendment may be signed in any
number of counterparts with the same effect as if the
signatures thereto and hereto were upon the same instrument.
If the foregoing is satisfactory to you, please sign the form
of acceptance below and return a signed counterpart hereof to
the Company.
Very truly yours,
OSHKOSH B'GOSH, INC.
By: /S/ DAVID L. OMACHINSKI
Vice President of Finance
(Corporate Seal)
Agreed to as of the date first above written.
FIRSTAR BANK MILWAUKEE,
NATIONAL ASSOCIATION
By: /S/ STEVE CARLTON
Title: Assistant Vice President
BANK ONE, MILWAUKEE, NA
By: /S/ A.F. MAGGORIE
Title: Vice President
HARRIS TRUST AND SAVINGS BANK
By: /S/ GEORGE M. DELUHY
Title: Vice President
NORWEST BANK WISCONSIN,
NATIONAL ASSOCIATION
By: /S/ DANIEL G. FRAZIER
Title: Vice President
AMENDMENT NO. 3 TO CREDIT AGREEMENT
As of December 21, 1995
Firstar Bank Milwaukee,
National Association
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Bank One, Milwaukee, NA
111 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
Norwest Bank Wisconsin,
National Association
100 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Gentlemen:
Please refer to that certain Credit Agreement dated
as of June 24, 1994, as amended through Amendment No. 2
thereto dated as of December 31, 1994 (the "Credit Agreement")
between the undersigned Oshkosh B'Gosh, Inc., a Delaware
corporation (the "Company") and you (the "Banks"). All
capitalized terms used and not otherwise defined herein
shall have the meanings given to such terms by the
Credit Agreement.
1.Amendments to Credit Agreement. The Company requests
that the Banks agree to amend the Consolidated Fixed
Charge Coverage Ratio covenant set forth in section
6.1(c) of the Credit Agreement as set forth below.
Subject to all of the terms and conditions hereof, the
Banks agree to amend such covenant as set forth below.
Therefore, subject to the terms and conditions set forth
herein, the Credit Agreement shall be amended, as of the
date first written above, as follows:
(a) All references to the Credit Agreement in the Credit
Agreement and in any of the Collateral Documents shall
refer to the Credit Agreement as amended hereby.
(b) Section 6.1(c) of the Credit Agreement is amended to read
in its entirety as follows:
(c) At the end of each fiscal quarter during each period set
forth in the table below, a Consolidated Fixed Charge Coverage
Ratio for the four consecutive fiscal quarters then ended of
at least the amount set forth opposite such period:
Consolidated Fixed
Period Charge Coverage Ratio
1. From December 31, 2.0:1.0
1994 through and
including December 31, 1996
2. From January 1, 2.5:1.0
1997 through and
including September 30, 1997
3. From October 1, 3.0:1.0
1997 and thereafter
2. Representations. The Company repeats and reaffirms the
representations and warranties set forth in Article IV of the
Credit Agreement. The Company also represents and warrants
that the execution, delivery and performance of this Amendment
are within the corporate powers of the Company, have been duly
authorized by all necessary corporate action and do not and
will not (i) violate any provision of the certificate of
incorporation or by-laws of the Company or of any law,
regulation, order, or judgment presently in effect having
applicability to the Company or (ii) require the consent or
approval of, or filing or registration with, any governmental
body, agency or authority; or (iii) result in any
breach of or constitute a default under any
indenture or other agreement or instrument under
which the Company is a party.
3. Confirmation of Credit Agreement. Except as
expressly provided above, the Credit Agreement shall
remain in full force and effect.
4. Fees and Expenses. The Company shall be
responsible for the payment of all fees and out-of-
pocket disbursements incurred by the Banks in
connection with the preparation, execution,
delivery, administration and enforcement of this
Amendment and including without limitation the
reasonable fees and disbursements of counsel for the
Agent.
5. Miscellaneous. The provisions of this Amendment
shall inure to the benefit of and be binding upon
any successor to any of the parties hereto. All
agreements, representations and warranties made
herein shall survive the execution of this Amendment
and the extension of credit under the Credit
Agreement, as so amended. This Amendment shall be
governed by and construed in accordance with the
internal laws of the State of Wisconsin. This
Amendment may be signed in any number of
counterparts with the same effect as if the
signatures thereto and hereto were upon the same
instrument.
If the foregoing is satisfactory to you, please
sign the form of acceptance below and return a
signed counterpart hereof to the Company.
Very truly yours,
OSHKOSH B'GOSH, INC.
By: /S/ DAVID L. OMACHINSKI
Vice President of Finance
(Corporate Seal)
Agreed to as of the date first above written.
FIRSTAR BANK MILWAUKEE,
NATIONAL ASSOCIATION
By: /S/STEVE CARLTON
Title: Assistant Vice President
BANK ONE, MILWAUKEE, NA
By: /S/ A. F. MAGGORIE
Title: Vice President
HARRIS TRUST AND SAVINGS BANK
By: /S/ GEORGE M. DELUHY
Title: Vice President
NORWEST BANK WISCONSIN,
NATIONAL ASSOCIATION
By: /S/ DANIEL G. FRAZIER
Title: Vice President
AMENDMENT NO. 4 TO CREDIT AGREEMENT
As of January 30, 1996
Firstar Bank Milwaukee,
National Association
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Bank One, Milwaukee, NA
111 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
Norwest Bank Wisconsin,
National Association
100 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
The First National Bank of Boston
100 Federal Street
Boston, Massachusetts 02110
Gentlemen:
Oshkosh B,Gosh, Inc., a Delaware corporation (the
"Company"), hereby agrees with each of you as
follows:
I. Definitions. Reference is made to that certain
Credit Agreement dated as of June 24, 1994, as
amended through Amendment No. 3 thereto dated as of
December 21, 1995 (the "Credit Agreement") between
the Company and each of you other than The First
National Bank of Boston, pursuant to which the
Company has issued (i) its Revolving Credit Notes to
each of you other than The First National Bank of
Boston in the aggregate principal amount of
$60,000,000, and (ii) its Demand Notes to each of
you other than The First National Bank of Boston in
the aggregate principal amount of $40,000,000, each
dated as of June 24, 1994 (collectively, the
"Existing Notes"). All capitalized terms used and
not otherwise defined herein shall have the meanings
given to such terms by the Credit Agreement as
amended hereby.
2. Addition of The First National Bank of Boston;
New Notes. The Company has informed each of you
that it wishes, and The First National Bank of
Boston has informed the Company and each of you
other than itself that it wishes, that The First
National Bank of Boston become a party to the Credit
Agreement on the terms and conditions herein and therein set forth.
On the effective date of this Amendment, all loans
made or continued pursuant to the Credit Agreement,
including the unpaid balances of the Existing Notes,
shall be evidenced by (i) new Revolving Credit Notes
of the Company in the form of Exhibit 1.1 annexed
hereto in the aggregate principal amount of
$60,000,000, and (ii) new Demand Notes of the
Company in the form of Exhibit 1.2 annexed hereto in
the aggregate principal amount of $40,000,000, each
to be dated as of the date hereof (collectively, the
"New Notes"). The New Notes shall be executed by
the Company and delivered to each of you on the date
hereof against the return of the Existing Notes to
the Company. Accrued interest on the Existing Notes
outstanding on the date of issuance of the New Notes
shall be included in the interest due on the New
Notes issued in replacement of such Existing Notes
on the first interest payment date specified
therein.
3. Amendments to Credit Agreement. Subject to the
terms and conditions set forth herein, the Credit
Agreement shall be amended, as of the date first
written above, as follows:
(a) All references in the Credit Agreement to the
Notes issued thereunder and the loans evidenced
thereby shall refer to the New Notes issued
hereunder and the loans evidenced thereby (including
the unpaid balances of the Existing Notes).
(b) All references to the Credit Agreement in the
Credit Agreement and in any other agreements
relating thereto shall refer to the Credit
Agreement as amended hereby.
(c) The first page of the Credit Agreement is
amended by adding The First National Bank of Boston,
at its address set forth on the first page of this
Amendment, as an additional addressee. The First
National Bank of Boston shall be included as one of
the Banks for all purposes of the Credit Agreement,
and all references to the Banks in the Credit
Agreement and all other agreements relating thereto
shall hereafter be deemed to refer collectively to
Firstar Bank Milwaukee, National Association, Bank
One, Milwaukee, NA, Harris Trust and Savings Bank,
Norwest Bank Wisconsin, National Association, and
The First National Bank of Boston.
(d) The table set forth in Section 1.1 of the
Credit Agreement (Revolving Credit) is amended to
read in its entirety as follows:
Percentage
Name of Bank Commitment Interest
Firstar Bank Milwaukee,
National Association $18,000,000 30.0%
Bank one, Milwaukee, NA $12,000,000 20.0%
Harris Trust and
Savings Bank $10,500,000 17.5%
Norwest Bank Wisconsin,
National Association $10,500,000 17.5%
The First National
Bank of Boston $ 9,000,000 15.0%
TOTAL $60,000,000 100.0%
(e) The table set forth in Section 1.2 of the
Credit Agreement (Demand Line of Credit)is
amended to read in its entirety as follows:
Name of Bank Demand Line
Firstar Bank Milwaukee,
National Association $12,000,000
Bank One, Milwaukee, NA $ 8,000,000
Harris Trust and Savings Bank $ 7,000,000
Norwest Bank Wisconsin,
National Association $ 7,000,000
The First National Bank of Boston $ 6,000,000
TOTAL $40,000,000
(f) The first clause of the definition of "Business
Day" prior to the semicolon) set forth in Section
l0.l(b) of the Credit Agreement is hereby amended to
read in its entirety as follows:
(g) the term "Business Day" means any day other
than a Saturday or Sunday on which banks in the
States of Wisconsin, Illinois and Massachusetts
are open for the transaction of substantially all
of their banking functions;
4. Representations. The Company repeats and
reaffirms the representations and warranties set forth in
Article IV of the Credit Agreement. The Company also
represents and warrants that the execution, delivery and
performance of this Amendment are within the corporate
powers of the Company, have been duly authorized by all
necessary corporate action and do not and will not (i)
violate any provision of the certificate of incorporation
or by-laws of the Company or of any law, regulation, order,
or judgment presently in effect having applicability to the
Company or (ii) require the consent or approval of, or filing
or registration with, any governmental body, agency or
authority; or (iii) result in any breach of or constitute a
default under any indenture or other agreement or instrument
under which the Company is a party.
5. Related Transactions; Computations. Upon
issuance of the New Notes, (i) The First National Bank of
Boston shall become a party to the Credit Agreement as
amended hereby with the same force and effect as if a
signatory thereto and shall have (a) the Commitment and
Percentage Interest in the revolving credit loans to be made
under the Credit Agreement set forth opposite its name in
Section 1.1 of the Credit Agreement as amended hereby, and (b)
its respective share of the Demand Line set forth in Section
1.2 of the Credit Agreement as amended hereby, (ii) each of
you will make such adjustments among yourselves as are
necessary so that after giving effect to such adjustments,
the Percentage Interest of each of you in the revolving
credit loans outstanding under the Credit Agreement will
be the Percentage Interest set forth under Section 1.1 of the
Credit Agreement as amended hereby, and your respective
shares of the outstanding portion of the Demand Line will
be as set forth under Section 1.2 of the Credit Agreement as
amended hereby, and (iii) the obligations of the Company to The
First National Bank of Boston under the Credit Agreement as
amended hereby shall begin to accrue. The interest and
commitment fees due each of you other than The First National
Bank of Boston with respect to periods prior to the date
hereof shall be determined in accordance with the Credit
Agreement as in effect prior to the date hereof, and the
interest and commitment fees due each of you with respect to
the periods beginning on or after the date hereof shall be
determined in accordance with the Percentage Interests in
effect on and after the date hereof.
6. Conditions. Without limiting any of the other terms of the
Credit Agreement as amended hereby, this Amendment
shall not become effective, and the Banks shall not be
required to make any further loans to the Company
unless and until:
(a) No Default or Event of Default shall
have occurred and be continuing and neither the
business nor the assets nor the financial condition of
the Company shall have been materially adversely
affected as the result of any event or development
since December 31, 1994.
(b) The Banks shall have received such
documents concerning the corporate status of the
Company and the authorization of the transactions
contemplated hereby as may be reasonably requested, and
such other matters as the Banks shall reasonably
require; and
(c) All proceedings taken in connection with
the transactions contemplated by this Amendment and all
instruments, authorizations and other documents
applicable thereto shall be satisfactory in form and
substance in the reasonable opinion of the Banks and
their counsel.
7. Confirmation of Credit Agreement.
Except as expressly provided above, the Credit
Agreement shall remain in full force and effect.
8. Fees and Expenses. The Company shall be
responsible for the payment of all fees and out-of-
pocket disbursements incurred by the Banks in
connection with the preparation, execution, delivery,
administration and enforcement of this Amendment and
including without limitation the reasonable fees and
disbursements of counsel for the Agent.
9. Miscellaneous. The provisions of this
Amendment shall inure to the benefit of and be binding
upon any successor to any of the parties hereto. All
agreements, representations and warranties made herein
shall survive the execution of this Amendment and the
extension of credit under the Credit Agreement, as so
amended. This Amendment shall be governed by and
construed in accordance with the internal laws of the
State of Wisconsin. This Amendment may be signed in
any number of counterparts with the same effect as if
the signatures thereto and hereto were upon the same
instrument.
If the foregoing is satisfactory to you,
please sign the form of acceptance below and return a
signed counterpart hereof to the Company.
Very truly yours,
OSHKOSH B'GOSH, INC.
By: /S/ DAVID L. OMACHINSKI
Vice President of Finance
(Corporate Seal)
Agreed to as of the date first above written.
FIRSTAR BANK MILWAUKEE,
NATIONAL ASSOCIATION
By: /S/ STEVE CARLTON
Title: Vice President
BANK ONE, MILWAUKEE, NA
By: /S/ A.F. MAGGORIE
Title: Vice President
HARRIS TRUST AND SAVINGS BANK
By: /S/ GEORGE M. DELUHY
Title: Vice President
NORWEST BANK WISCONSIN,
NATIONAL ASSOCIATION
By: /S/ DANIEL G. FRAZIER
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: /S/ PETER GRISWOLD
Title: Director
AMENDMENT NO. 5 TO CREDIT AGREEMENT
As of June 28, 1996
Firstar Bank Milwaukee, NA
777 East Wisconsin Ave.
Milwaukee, WI 53202
Bank One, Milwaukee, NA
111 East Wisconsin Ave.
Milwaukee, WI 53202
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, IL 60603
Norwest Bank Wisconsin, NA
100 East Wisconsin Ave.
Milwaukee, WI 53202
The First National Bank of Boston
100 Federal Street
Boston, MA 02110
Gentlemen:
OshKosh B'Gosh, Inc., a Delaware corporation (the
"Company"), hereby agrees with each of you as follows:
1. Definitions. Reference is made to that certain
Credit Agreement dated as of June 24, 1994, as amended
through Amendment No. 4 thereto dated as of January 30, 1996
(the "Credit Agreement") between the Company and each of
you, pursuant to which the Company has issued its Revolving
Credit Notes to each of you in the aggregate principal
amount of $60,000,000, each dated as of January 20, 1996
(collectively, the "Existing Notes"). All capitalized terms
used and not otherwise defined herein shall have the
meanings given to such terms by the Credit Agreement as
amended hereby.
2. New Notes. The Company has informed each of you
that it wishes to (I) extend the Termination Date to June
24, 1999, (ii) incorporate Competitive Bid Loans (as defined
below) into the Credit Agreement, and (iii) make certain
other changes in the Credit Agreement as set forth below.
Subject to all of the terms and conditions hereof, you have
agreed to such amendments to the Credit Agreement as
provided below. On the effective date of this Amendment,
all loans made or continued pursuant to the Revolving Credit
established pursuant to section 1.1 of the Credit Agreement,
including the unpaid balances of the Existing Notes, shall
be evidenced by new Revolving Credit Notes of the Company in
the form of Exhibit 1.1 annexed hereto in the aggregate
principal amount of $60,000,000, each to be dated as of the
date hereof (collectively, the "New Notes"). The New Notes
shall be executed by the Company and delivered to each of
you on the date hereof against the return of the Existing
Notes to the Company. Accrued interest on the Existing
Notes outstanding on the date of issuance of the New Notes
shall be included in the interest due on the New Notes
issued in replacement of such Existing Notes on the first
interest payment date specifed therein.
3. Amendments to Credit Agreement. Subject to the
terms and conditions set forth herein, the Credit Agreement
shall be amended, as of the date first written above, as
follows:
(a) All references in the Credit Agreement to the
Revolving Credit Notes issue thereunder and the loans
evidenced thereby shall refer to the New Notes issued
hereunder and the loans evidenced thereby (including the
unpaid balances of the Existing Notes).
(b) All references to the Credit Agreement in the
Credit Agreement and in any other agreements relating
thereto shall refer to the Credit Agreement as amended
hereby.
(c) The date of June 24, 1997 set forth in Section 1.1
of the Credit Agreement is amended to June 24, 1999.
(d) The amount of $35,000,000 set forth in Section
1.4(a) of the Credit Agreement (relating to import Letters
of Credit) is amended to $50,000,000.
(e) The letter of credit fee of three-quarters of one
percent (3/4%) per annum set forht in Section 1.4(b) of the
Credit Agreement is amended to five-eighths of one percent
(5/8%) per annum.
(f) Section 1.9(e) is deleted from the Credit
Agreement in its entirety. In addition, all references to
"Nicolet Funding Corp. Loans" throughout the Credit
Agreement are deleted and shall be of no further force or
effect.
(g) A new Section 1.10 is hereby added to the Credit
Agreement reading in its entirety as follows:
1.10 Competitive Bid Loans. The Company may obtain
loans under Sections 1.1 and 1.2 pursuant to the competitive
bid procedures set forth in the Section 1.10 ("Competitive
Bid Loans"), subject to the terms and conditions of Section
1.1 or 1.1 (as the case may be), except as otherwise
provided in this Section 1.10. Each Bank may make such
Competitive Bid Loans to the Company, subject to the terms
and conditions hereof, in such amounts as such Bank, in its
sole discretion, desires to make to the Company.
Notwithstanding any contrary provision of Section 1.1, the
aggregate outstanding amount of Competitive Bid Loans made
against the Aggregate Commitment shall reduce each Bank's
Commitment pro rata in accordance with its respective
Percentage Interest, regardless of which Bank makes such
Competitive Bid Loans. Any Competitive Bid Loan made under
the Demand Line shall be due and payable upon demand in
accordance with the terms of this Agreement, notwithstanding
any of the terms of such Competitive Bid Loan. The
procedure for making Competitive Bid Loans shall be as
follows:
(a) The Company may make requests for bids from the
Banks to make Competitive Bid Loans ("Competitive Bids") not
later than 9:00 a.m., Milwaukee time, on the proposed
borrowing date for one or more Competitive Bid Loans. Each
such request shall be given directly to each of the Banks,
shall be given in writing (which may be a facsimile
transmission) signed by the Company, and shall specify (I)
the proposed borrowing date, which shall be a Business Day,
(ii) the aggregate amount of the requested Competitive Bid
Loans, which shall not be less than $1,000,000 or, for
amounts in excess thereof, an integral multiple of $100,000,
(iii) the interest period for each Competitive Bid Loan
("Loan Period"), which shall commence on the applicable
borrowing date and end on a specified date thereafter not
exceeding 180 days from such borrowing date (up to three (3)
Loan Periods may be requested pursuant to each Competitive
Bid), and the last day of each such Loan Period, and (iv) if
more than one Loan Period is so specified, the principal
amount allocable to each such Loan Period.
(b) Each Bank in its sole discretion may (but is not
obligated to) submit one or more Competitive Bids to the
Company not later than 11:00 a.m., Milwaukee time, on the
proposed borrowing date specified in such request for
Competitive Bids (such 11:00 a.m. time being herein called
the "Submission Deadline") by facsimile or in writing, and
thereby irrevocably offer to make all or any part (any such
part referred to as a "Portion") of any Competitive Bid Loan
described in the relevant request for Competitive Bids at a
fixed rate of interest per annum (each a "Bid Rate")
specified therein, without reference to the LIBOR Rate or
other basis for interest rates, in an aggregate principal
amount of not less than $1,000,000 and, for amounts in
excess thereof, an integral multiple of $100,000. Multiple
Competitive Bids may be delivered by any Bank.
(c) The Company shall, in its sole discretion but
subject to paragraph (d) below, irrevocably accept or reject
any such Competitive Bid (or any Portion thereof) not later
than 12:00 noon on the proposed borrowing date by notice to
the appropriate Bank by telephone (confirmed in writing
promptly delivered to such Bank and the Agent the same day).
If a Bank fails to receive notice from the Company of its
acceptance or rejection of any Competitive Bids made by such
Bank at or prior to 12:00 noon on such day, all such
Competitive Bids shall be deemed to have been rejected by
the Company. The Company's written acceptance of any
Competitive Bid shall constitute a borrowing notice of the
Company, and shall specify the amount, maturity date and Bid
Rate for each Competitive Bid Loan. The Company will give
written notice to the Agent in the form of Part 3 to Exhibit
2.1 hereto on each Business Day on which there is any change
in the aggregate outstanding principal amount of Competitive
Bid Loans, setting forth the aggregate principal amount of
all Competitive Bid Loans then outstanding after giving
effect to any Competitive Bid Loans made on such Business
Day.
(d) If the Company accepts a Portion of a proposed
Competitive Bid Loan for a single Loan Period at the Bid
Rate provided therefor in a Bank's Competitive Bid, such
Portion shall be in a principal amount of $1,000,000 or, for
amounts in excess thereof, an integral multiple of $100,000.
If the Company accepts any Competitive Bid Loan or Portion
offered in any Competitive Bid, the Company must accept
Competitive Bids (and Competitive Bid Loans and Portions
thereby offered) based exclusively upon the successively
lowest Bid Rates within each Loan Period an no other
criteria. If two (2) or more Banks submit Competitive Bids
with identical Bid Rates for the same Loan Period and the
Company accepts any thereof, the Company shall accept all
such Competitive Bids as nearly as possible in proportion to
the amounts of such Banks' respective Competitive Bids with
identical Bid Rates for such Loan Period, provided, that if
the amount of Competitive Bid Loans to be so allocated is
not sufficient to enable each such Bank to make such
Competitive Bid Loan (or Portions thereof) in an aggregate
principal amount of $1,000,000, or for amounts in excess
thereof, an integral multiple of $100,000, the Company shall
round the Competitive Bid Loans (or Portions thereof)
allocated to such Bank or Banks as the Company shall select
as necessary to a minimum of $1,000,000 and, if greater than
$1,000,000 the nearest multiple of $100,000, or select the
Competitive Bid of only one of such Banks.
(e) Not later than 1:30 p.m., Milwaukee time, on the
relevant borrowing date, each Bank whose Competitive Bid was
accepted by the Company shall make available to the Agent,
in immediately available funds, the proceeds of such Bank's
Competitive Bid Loan(s). Upon fulfillment of the applicable
borrowing conditions, the Agent shall deposit in the
Company's account maintained with the Agent or as the
Company may otherwise direct in writing on the relevant
borrowing date the proceeds of such Competitive Bid Loans,
in immediately available funds.
(h) Section 2.2(b) of the Credit Agreement is amended
by adding an additional subparagraph (3) thereto, reading in
its entirety as follows:
(3) With respect to any portion of the
indebtedness evidenced by the Notes which consists of
Competitive Bid Loans made pursuant to Section 1.10, the
applicable Bid Rate determined pursuant to the procedure set
forth in Section 1.10.
(i) Section 5.4 of the Credit Agreement is amended by
adding an additional clause (v) at the end of subparagraph
(a) thereor, reading in its entirety as follows: and
(v) other short-term fixed income investments of
high credit quality selected by the Company;
(j) Section 6.1(c) of the Credit Agreement is
amended to read in its entirety as follows:
(k) At the end of each fiscal quarter during each
period set forth in the table below, a Consolidated Fixed
Charge Coverage Ratio for the four consecutive fiscal
quarters then ended of at least the amount set forth
opposite such period:
Consolidated
Fixed Charge
Period Coverage Ratio
From December 31, 1994 through and
including December 31, 1997 2.0:1.0
From January 1, 1998 through and
including December 31, 1998 2.5:1.0
From January 1, 1999 and thereafter 3.0:1.0
(1) Clause (i) of Section 10.1(f) of the Credit
Agreement (definition of "Consolidated Fixed Charge Coverage
Ratio") is amended to read in its entirety as follows:
(i) the Consolidated Net Earnings of the Company for
such period (without taking into account any effects of the
$20.9 million pre-tax charge against income taken by the
Company in the fiscal quarter ending June 30,1996) plus the
sum of (A) depreciation, amortization and all other non-cash
deductions arising in the normal course of operations and
shown on the Company's financial statements for such period,
(B) net (including the interest component of Capitalized
Leases) for such period and (C) rental expense under leases
other than Capitalized Leases for such period; and
(m) Exhibit 2.1 to the Credit Agreement is amended to
read as set forth in Exhibit 2.1 attached to this Amendment.
4. Representations. The Company repeats and
reaffirms the representations and warranties set forth in
Article IV of the Credit Agreement. The Company also
represents and warrants that the execution, delivery and
performance of this Amendment are within the corporate
powers of the Company, have been duly authorized by all
necessary corporate action and do not and will not (i)
violate any provision of the certificate of incorporation or
by-laws of the Company or of any law, regulation, order, or
judgment presently in effect having applicability to the
Company of (ii) require consent or approval of, or filing or
registration with, any governmental body, agency or
authority; or (iii) result in any breach of or constitute a
default under any indenture or other agreement or instrument
under which the Company is a party.
5. Conditions. Without limiting any of the other
terms of the Credit Agreement as amended hereby, this
Amendment shall not become effective, and the Banks shall
not be required to make any further loans to the Company
unless and until:
(a) No Default or Event of Default shall have occurred
and be continuing and neither the business nor the assets
nor the adversely affected as the result of any event or
development since December 31, 1995.
(b) The Banks shall have received such documents
concerning the corporate status of the Company and the
authorization of the transactions contemplated hereby as may
be reasonably requested, and such other matters as the Banks
shall reasonably require; and
(c) All proceedings taken in condition with the
transactions contemplated by this Amendment and all
instruments, authorizations and other documents applicable
thereto shall be satisfactory in form and substance in the
reasonable opinion of the Banks and their counsel.
6. Confirmation of Credit Agreement. Except as
expressly provided above, the Credit Agreement shall remain
in full force and effect.
7. Fees and Expenses. The Company shall be
responsible for the payment of all fees and out-of-pocket
disbursements incurred by the Banks in connection with the
preparation, execution, delivery, administration and
enforcement of this Amendment and including without
limitation the reasonable fees and disbursements of counsel
for the Agent.
8. Miscellaneous. The provisions of this Amendment
shall inure to the benefit of and be binding upon any
successor to any of the parties hereto. All agreements,
representations and warranties made herein shall survive the
execution of this Amendment and the extension of credit
under the Credit Agreement, as so amended. This Amendment
shall be governed by and construed in accordance with the
internal laws of the State of Wisconsin. This Amendment may
be signed in any number of counterparts with the same effect
as if the signatures thereto and hereto were upon the same
instrument.
If the foregoing is satisfactory to you, please sign
the form of acceptance below and return a signed counterpart
hereof to the Company.
Very truly yours,
OSHKOSH B'GOSH, INC.
BY: /s/David L. Omachinski
Vice President of Finance
(Corporate Seal)
Agreed to as of the date fist above written.
FIRSTAR BANK MILWAUKEE, NA
BY: /s/Stephen Carlton
Title: Vice President
BANK ONE, MILWAUKEE, NA
BY: /s/A.F. Maggiore
Title: Vice President
HARRIS TRUST AND SAVINGS BANK
BY:
Title: Vice President
NORWEST BANK WISCONSIN, NA
BY: /s/Daniel Frazier
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
BY:
Title: Director
EXHIBIT 1.1
PROMISSORY NOTE
$ , 19
FOR THE VALUE RECEIVED, OshKosh B'Gosh, Inc., a
Delaware corporation, promises to pay to the order of
, the principal sum of
Dollars ($ ) at the Main Office of
Firstar Bank Milwaukee, National Association in Milwaukee,
Wisbonsin, on June 24, 1999. The unpaid principal balance
hereof shall bear interest, payable on the dates specified
in the Credit Agreement referred to below, computed at the
Applicable Rate as defined in such Credit Agreement.
Principal amounts unpaid at the maturity hereof
(whether by fixed maturity or acceleration) shall bear
interest from and after maturity until paid computed at a
rate equal to 2% per annum plus the rate otherwise payable
hereunder. Principal of and interest on this Note shall be
payable in lawful money of the United States of America.
This Note constitutes one of the Revolving Credit Notes
issued under a Credit Agreement dated as of June 24, 1994,
as amended, among the undersigned and Firstar Bank
Milwaukee, National Association, for itself and as Agent,
and the other banks party thereto, to which Agreement
reference is hereby made for a statement of the terms and
conditions on which loans in part evidenced hereby were or
may be made, and for a description of the conditions upon
which this Note may be prepaid, in whole or in part, or its
maturity accelerated.
OSHKOSH B'GOSH, INC.
BY:
Vice President of Finance
(CORPORATE SEAL)
EXHIBIT 2.1
COMMERCIAL PAPER AND COMPETITIVE BID LOAN
REPORT/LOAN REQUEST
, 19
Memorandum to:
Firstar Bank Milwaukee, NA, as Agent
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Re: Credit Agreement Dated as of June 24, 1994, as
amended (the "Credit Agreement")
Part 1: Commercial Paper Report
The aggregate principal amount of all Commercial
Paper of the Company now outstanding is $ .
Part 2: Loan Request
The Company hereby applies to the Agent for a loan
under the Credit Agreement to be made on , 19 ,
in the principal amount of $ . If such loan
is to be subject to a LIBOR Pricing Option, the LIBOR
Interest Period is months.
The Company hereby certifies as follows:
(a) All of the representations and warranties set
forth in Article IV of the Credit Agreement continue to be
true on the date hereof, except that the financial
statements referred to in Section 4.5 of the Credit
Agreement shall be deemed to be the most recent consolidated
financial statements of the Company delivered pursuant to
Section 6.6(a) or (b) of the Credit Agreement.
(b) At the date hereof, no Default or Event of Default
under the Credit Agreement has occurred and is continuing.
Part 3: Competitive Bid Loan Report
The aggregate principal amount of all Competitive
Bid Loans now outstanding is $ . The
Portions of outstanding Competitive Bid Loans held by each
of the Banks are as follows:
Firstar Bank Milwaukee, NA $
Bank One, Milwaukee, NA $
Harris Trust and Savings Bank $
Norwest Bank Wisconsin, NA $
The First National Bank of Boston $
OSHKOSH B'GOSH, INC.
By:
Title:
AMENDMENT NO. 6 TO CREDIT AGREEMENT
As of November 21, 1997
Firstar Bank Milwaukee,
National Association
777 East Wisconsin Avenue
Milwaukee, WI 53202
Bank One, Wisconsin
111 East Wisconsin Avenue
Milwaukee, WI 53202
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, IL 60603
Norwest Bank Wisconsin,
National Association
100 East Wisconsin Avenue
Milwaukee, WI 53202
BankBoston, N.A.
100 Federal Street
Boston, MA 02110
Gentlemen:
OshKosh B'Gosh, Inc., a Delaware corporation (the
"Company"), hereby agrees with each of you as follows:
1. Definitions. Reference is made to that certain Credit
Agreement dated as of June 24, 1994, as amended through Amendment
No. 5 thereto dated as of June 28, 1996 (the "Credit Agreement")
between the Company and each of you, pursuant to which the
Company has issued its Revolving Credit Notes to each of you in
the aggregate principal amount of $60,000,000, each dated as of
June 28, 1996 (collectively, the "Existing Notes"). All
capitalized terms used and not otherwise defined herein shall
have the meanings given to such terms by the Credit Agreement as
amended hereby.
2. New Notes. The Company has informed each of you that
it wishes to (I) extend the Termination Date to June 24, 2000,
and (ii) make certain other changes in the Credit Agreement as
set forth below. Subject to all of the terms and conditions
hereof, you have agreed to such amendments to the Credit
Agreement as provided below. On the effective date of this
Amendment, all loans made or continued pursuant to the Revolving
Credit established pursuant to Section 1.1 of the Credit
Agreement, including the unpaid balances of the Existing Notes,
shall be evidenced by new Revolving Credit Notes of the Company
in the form of Exhibit 1.1 annexed hereto in the aggregate
principal amount of $60,000,000, each to be dated as of the date
hereof (collectively, the "New Notes"). The New Notes shall be
executed by the Company and delivered to each of you on the date
hereof against the return of the Existing Notes to the Company.
Accrued interest on the Existing Notes outstanding on the date of
issuance of the New Notes shall be included in the interest due
on the New Notes issued in replacement of such Existing Notes on
the first interest payment date specified therein.
3. Amendments to Credit Agreement. Subject to the terms
and conditions set forth herein, the Credit Agreement shall be
amended, as of the date first written above, as follows:
(a) All references in the Credit Agreement to the
Revolving Credit Notes issued thereunder and the loans evidenced
thereby shall refer to the New Notes issued hereunder and the
loans evidenced thereby (including the unpaid balances of the
Existing Notes).
(b) All references to the Credit Agreement in the
Credit Agreement and in any other agreements relating thereto
shall refer to the Credit Agreement as amended hereby.
(c) The date of June 24, 1999 set forth in Section 1.1
of the Credit Agreement is amended to June 24, 2000.
(d) Section 6.1(c) of the Credit Agreement is amended
to read in its entirety as follows:
(c) At the end of each fiscal quarter during each
period set forth in the table below, a Consolidated Fixed Charge
Coverage Ratio for the four consecutive fiscal quarters then
ended of at least the amount set forth opposite such period:
Period Consolidated Fixed
Charge Coverage Ratio
1. From December 31, 1994 2.0:1.0
through and including
December 31, 1997.
2. From January 1, 1998 2.5:1.0
through and including
December 31, 1999.
3. From January 1, 2000 and 2.75:1.0
thereafter.
4. Representations. The Company repeats and reaffirms the
representations and warranties set forth in Article IV of the
Credit Agreement. The Company also represents and warrants that
the execution, delivery and performance of this Amendment are
within the corporate powers of the Company, have been duly
authorized by all necessary corporate action and do not and will
not (i) violate any provision of the certificate of incorporation
or by-laws of the Company or of any law, regulation, order, or
judgment presently in effect having applicability to the Company
or (ii) require the consent or approval of, or filing or
registration with, any governmental body, agency or authority; or
(iii) result in any breach of or constitute a default under any
indenture or other agreement or instrument under which the
Company is a party.
5. Conditions. Without limiting any of the other terms of
the Credit Agreement as amended hereby, this Amendment shall not
become effective, and the Banks shall not be required to make any
further loans to the Company unless and until:
(a) No Default or Event of Default shall have occurred and
be continuing and neither the business nor the assets nor the
financial condition of the Company shall have been materially
adversely affected as the result of any event or development
since December 31, 1996.
(b) The Banks shall have received such documents concerning
the corporate status of the Company and the authorization of the
transactions contemplated hereby as may be reasonably requested,
and such other matters as the Banks shall reasonably require; and
(c) All proceedings taken in conjunction with the
transactions contemplated by this Amendment and all instruments,
authorizations and other documents applicable thereto shall be
satisfactory in form and substance in the reasonable opinion of
the Banks and their counsel.
6. Confirmation of Credit Agreement. Except as expressly
provided above, the Credit Agreement shall remain in full force
and effect.
7. Fees and Expenses. The Company shall be responsible
for the payment of all fees and out-of-pocket disbursements
incurred by the Banks in connection with the preparation,
execution, delivery, administration and enforcement of this
Amendment and including without limitation the reasonable fees
and disbursements of counsel for the Agent.
8. Miscellaneous. The provisions of this Amendment shall
inure to the benefit of and be binding upon any successor to any
of the parties hereto. All agreements, representations and
warranties made herein shall survive the execution of this
Amendment and the extension of credit under the Credit Agreement,
as so amended. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of Wisconsin.
This Amendment may be signed in any number of counterparts with
the same effect as if the signatures thereto and hereto were upon
the same instrument.
If the foregoing is satisfactory to you, please sign the
form of acceptance below and return a signed counterpart hereof
to the Company.
Very truly yours,
OSHKOSH B'GOSH, INC.
By: /s/David L. Omachinski
Vice President of Finance
(Corporate Seal)
Agreed to as of the date first above written.
FIRSTAR BANK MILWAUKEE,
NATIONAL ASSOCIATION
By:
Title:
BANK ONE, WISCONSIN
By:
Title:
AMENDMENT NO. 7 TO CREDIT AGREEMENT
As of December 31, 1998
Firstar Bank Milwaukee,
National Association
777 East Wisconsin Avenue
Milwaukee, WI 53202
Bank One, Wisconsin
111 East Wisconsin Avenue
Milwaukee, WI 53202
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, IL 60603
Norwest Bank Wisconsin,
National Association
100 East Wisconsin Avenue
Milwaukee, WI 53202
BankBoston, N.A.
100 Federal Street
Boston, Massachusetts 02110
Gentlemen:
OshKosh B'Gosh, Inc., a Delaware corporation (the
"Company"), hereby agrees with each of you as follows:
1. Definitions. Reference is made to that certain Credit
Agreement dated as of June 24, 1994, as amended through
Amendment No. 6 thereto dated as of November 21, 1997 (the
"Credit Agreement") between the Company and each of you,
pursuant to which the Company has issued its Revolving Credit
Notes to each of you in the aggregate principal amount of
$60,000,000, each dated as of November 21, 1997 (collectively,
the "Existing Notes"). All capitalized terms used and not
otherwise defined herein shall have the meanings given to such
terms by the Credit Agreement as amended hereby.
2. New Notes. The Company has informed each of you that it
wishes to (i) extend the Termination Date to June 24, 2001,
and (ii) make certain other changes in the Credit Agreement as
set forth below. Subject to all of the terms and conditions
hereof, you have agreed to such amendments to the Credit
Agreement as provided below. On the effective date of this
Amendment, all loans made or continued pursuant to the
Revolving Credit established pursuant to Section 1.1 of the
Credit Agreement, including the unpaid balances of the
Existing Notes, shall be evidenced by new Revolving Credit
Notes of the Company in the form of Exhibit 1.1 annexed hereto
in the aggregate principal amount of $60,000,000 each to be
dated as of the date hereof (collectively, the "New Notes").
The New Notes shall be executed by the Company and delivered
to each of you on the date hereof against the return of the
Existing Notes to the Company. Accrued interest on the
Existing Notes outstanding on the date of issuance of the New
Notes shall be included in the interest due on the New Notes
issued in replacement of such Existing Notes on the first
interest payment date specified therein.
3. Amendments to Credit Agreement. Subject to the terms and
conditions set forth herein, the Credit Agreement shall be
amended, as of the date first written above, as follows:
a) All references in the Credit Agreement to the Revolving
Credit Notes issued thereunder and the loans evidenced
thereby shall refer to the New Notes issued hereunder and
the loans evidenced thereby (including the unpaid balances
of the Existing Notes).
b) All references to the Credit Agreement in the Credit
Agreement and in any other agreements relating thereto shall
refer to the Credit Agreement as amended hereby.
c) The date of June 24, 2000 set forth in Section 1.1 of the
Credit Agreement is amended to June 24, 2001.
d) Section 6.1(a) of the Credit Agreement is deleted in its
entirety from the Credit Agreement. The Banks hereby waive
all violations of Section 6.1(a) for all periods prior to
the date of this Amendment.
4. Representations. The Company repeats and reaffirms the
representations and warranties set forth in Article IV of the
Credit Agreement. The Company also represents and warrants
that the execution, delivery and performance of this Amendment
are within the corporate powers of the Company, have been duly
authorized by all necessary corporate action and do not and
will not (i) violate any provision of the certificate of
incorporation or by-laws of the Company or of any law,
regulation, order, or judgment presently in effect having
applicability to the Company or (ii) require the consent or
approval of, or filing or registration with, any governmental
body, agency or authority; or (iii) result in any breach of or
constitute a default under any indenture or other agreement or
instrument under which the Company is a party.
5. Conditions. Without limiting any of the other terms of the
Credit Agreement as amended hereby, this Amendment shall not
become effective, and the Banks shall not be required to make
any further loans to the Company unless and until:
a) No Default or Event of Default shall have occurred and be
continuing and neither the business nor the assets nor the
financial condition of the Company shall have been
materially adversely affected as the result of any event or
development since December 31, 1997.
b) The Banks shall have received such documents concerning
the corporate status of the Company and the authorization of
the transactions contemplated hereby as may be reasonably
requested, and such other matters as the Banks shall
reasonably require; and
c) All proceedings taken in connection with the transactions
contemplated by this Amendment and all instruments,
authorizations and other documents applicable thereto shall
be satisfactory in form and substance in the reasonable
opinion of the Banks and their counsel.
6. Confirmation of Credit Agreement. Except as expressly
provided above, the Credit Agreement shall remain in full
force and effect.
7. Fees and Expenses. The Company shall be responsible for the
payment of all fees and out-of-pocket disbursements incurred
by the Banks in connection with the preparation, execution,
delivery, administration and enforcement of this Amendment and
including without limitation the reasonable fees and
disbursements of counsel for the Agent.
8. Miscellaneous. The provisions of this Amendment shall inure
to the benefit of and be binding upon any successor to any of
the parties hereto. All agreements, representations and
warranties made herein shall survive the execution of this
Amendment and the extension of credit under the Credit
Agreement, as so amended. This Amendment shall be governed by
and construed in accordance with the internal laws of the
State of Wisconsin. This Amendment may be signed in any
number of counterparts with the same effect as if the
signatures thereto and hereto were upon the same instrument.
If the foregoing is satisfactory to you, please sign the
form of acceptance below and return a signed counterpart hereof
to the Company.
Very truly yours,
OSHKOSH B'GOSH, INC.
By:
Vice President of Finance
(Corporate Seal)
Agreed to as of the date first above written.
FIRSTAR BANK MILWAUKEE
NATIONAL ASSOCIATION
By: /s/ Jeffrey J. Janza
Title: Assistant Vice President
BANK ONE, WISCONSIN
By: /s/ A.F. Maggiore
Title: Vice President
HARRIS TRUST AND SAVINGS BANK
By: /s/ George M. Dluhy
Title: Vice President
NORWEST BANK WISCONSIN,
NATIONAL ASSOCIATION
By: /s/ Joan F. Kinate
Title: Vice President
BANKBOSTON, N.A.
By: /s/ Kathleen Dimock
Title: Vice President
EXHIBIT 1.1
PROMISSORY NOTE
$ , 19
FOR VALUE RECEIVED, OshKosh B'Gosh, Inc., a Delaware
corporation, promises to pay to the order of ,
the principal sum of Dollars ($ )
at the Main Office of Firstar Bank, Milwaukee, National
Association in Milwaukee, Wisconsin, on the Termination Date (as
defined in the Credit Agreement referred to below). The unpaid
principal balance hereof shall bear interest, payable on the
dates specified in the Credit Agreement referred to below,
computed at the Applicable Rate as defined in such Credit
Agreement.
Principal amounts unpaid at the maturity hereof (whether by
fixed maturity or acceleration) shall bear interest from and
after maturity until paid computed at a rate equal to 2% per
annum plus the rate otherwise payable hereunder. Principal of
and interest of this Note shall be payable in lawful money of the
United States of America.
This Note constitutes one of the Revolving Credit Notes
issued under a Credit Agreement dated as of June 24, 1994, as
amended, among the undersigned and Firstar Bank Milwaukee,
National Association, for itself and as Agent, and the other
banks party thereto, to which Agreement reference is hereby made
for a statement of the terms and conditions on which loans in
part evidenced hereby were or may be made, and for a description
of the conditions upon which this Note may be prepaid, in whole
or in part, or its maturity accelerated.
OSHKOSH B'GOSH, INC.
By:
Vice President of Finance
(CORPORATE SEAL)
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