SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-K and ANNUAL REPORT
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1998
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. 0-795
BADGER PAPER MILLS, INC.
(Exact name of registrant as specified in its charter)
200 West Front Street WISCONSIN
P.O. Box 149 (State of incorporation)
Peshtigo, Wisconsin 54157-0149 39-0143840
(Address of principal executive office) (I.R.S. Employer
Identification Number)
Registrant's telephone number, including area code: (715) 582-4551
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, Without Nominal or Par Value
Indicate by checkmark 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 checkmark 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 the 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 23, 1999, 1,963,764 shares of common stock were outstanding, and the
aggregate market value of the common stock (based upon the closing sale price of
the shares on the Nasdaq National Market) held by non-affiliates was
approximately $14,052,695. Determination of stock ownership by affiliates was
made solely for the purpose of responding to this requirement, and registrant is
not bound by this determination for any other purpose.
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Proxy Statement for its 1999 Annual Meeting of Shareholders to be
filed with the Commission under Regulation 14A is herein incorporated by
reference into Part III of this Form 10-K to the extent indicated in Part III
hereof.
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Statement Regarding Forward-Looking Information
This Form 10-K, each of the Company's annual report to shareholders, Forms 8-K
and 10-Q, proxy statements, and any other written or oral statement made by or
on behalf of the Company subsequent to the filing of this Form 10-K may include
one or more "forward-looking statements" within the meaning of Sections 27A of
the Securities Act of 1933 and 21E of the Securities Exchange Act of 1934 as
enacted in the Private Securities Litigation Reform Act of 1995 (the "Reform
Act"). In making forward-looking statements within the meaning of the Reform
Act, the Company undertakes no obligation to publicly update or revise any such
statement.
Forward-looking statements of the Company are based on information available to
the Company as of the date of such statements and reflect the Company's
expectations as of such date, but are subject to risks and uncertainties that
may cause actual results to vary materially. In addition to specific factors
which may be described in connection with any of the Company's forward-looking
statements, factors which could cause actual results to differ materially
include, but are not limited to the following:
o Increased competition from either domestic or foreign paper producers or
providers of alternatives to the Company's products, including increases
in competitive production capacity, resulting in sales declines from
reduced shipment volume and/or lower net selling prices in order to
maintain shipment volume.
o Changes in demand for the Company's products due to overall economic
activity affecting the rate of consumption of the Company's paper
products, growth rates of the end markets for the Company's products,
technological or consumer preference changes or acceptance of the products
by the markets served by the Company.
o Changes in the price of pulp, the Company's main raw material. All of the
Company's pulp needs are purchased on the open market and price changes
for pulp have a significant impact on the Company's costs. Pulp price
changes can occur due to worldwide consumption levels of pulp, pulp
capacity additions, expansions or curtailments affecting the supply of
pulp, inventory building or depletion at pulp consumer levels which affect
short-term demand, and pulp producer cost changes related to wood
availability, environmental issues, or other variables.
o Unforeseen operational problems at any of the Company's facilities causing
significant lost production and/or cost issues.
o Changes in laws or regulations which affect the Company.
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<TABLE>
Five-Year Comparison of Selected Financial Data
<CAPTION>
Year ended December 31
1998 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C>
Earnings (in thousands):
Net sales $65,727 $70,427 $76,276 $92,648 $73,674
Cost of sales 58,505 67,600 72,411 83,890 72,949
Gross profit 7,222 2,827 3,865 8,758 725
Selling and administrative expenses 4,331 4,085 4,136 3,852 3,872
Restructuring provision - 850 7,430 504 -
Pulp mill impairment charge - 783 - - -
Profit (loss) from operations 2,891 (2,891) (7,701) 4,402 (3,147)
Other income 946 650 4,842 414 1,068
Interest expense 1,196 1,354 894 1,305 1,315
Unrealized holding gain or (loss)
on trading securities - - 307 549 (846)
Earnings (loss) before income taxes 2,641 (3,595) (3,446) 4,060 (4,240)
Income tax expense (benefit) 897 (1,153) (1,234) 1,312 (1,713)
Net earnings (loss) 1,744 (2,442) (2,212) 2,748 (2,527)
Common stock:
Number of shareholders of record 470 515 518 568 613
Weighted average shares outstanding 1,955,772 1,947,128 1,944,699 1,953,868 1,957,163
Earnings (loss) per share $0.89 $(1.25) $(1.14) $1.41 $(1.29)
Cash dividends declared per share - $ - $ 0.22 $0.10 $ -
Book value per share $9.33 $ 8.42 $ 9.68 $11.04 $ 9.77
Financial position (in thousands)
Working capital $7,346 $7,196 $9,923 $10,459 $(1,276)
Capital expenditures 3,004 4,686 6,856 2,705 1,654
Total assets 47,999 48,356 51,952 52,578 54,382
Long-term debt 16,126 20,394 18,617 17,236 10,651
Shareholders' equity 18,257 16,444 18,832 21,443 19,120
</TABLE>
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PART I
Item 1. Business
Badger Paper Mills, Inc. ("Badger" or the "Company") was incorporated under the
laws of the State of Wisconsin in 1929. It has been producing paper for over 69
years. The industry segment in which the Peshtigo, Wisconsin paper mill operates
is in the production of paper products. The Oconto Falls, Wisconsin facility is
operated by the Company's Badger Paper Flexible Packaging Division subsidiary in
the printing and converting industry segment.
Products and Distribution
Badger operates an ISO 9001 certified paper mill, consisting of two paper
machines located in Peshtigo, Wisconsin. Converting facilities contiguous to the
papermaking facilities include punching equipment, sheeters, trimmers, sealers,
perforators, rewinders, waxers, paper drilling and die-cutting equipment. Badger
also has a wholly-owned flexographic printing and converting operation in Oconto
Falls, Wisconsin.
The products produced on Badger's Fourdrinier machine represented 78 percent of
the paper products manufactured by the Company in 1998, and contributed more
than 68 percent of 1998 revenue from the sale of paper products. Fine paper
grades are produced utilizing fiber purchased on the open market, including pre
and post consumer recycled fibers. These paper grades include multi-purpose
business papers, offset, opaque, endleaf, ledger, reply card, watermarked,
water-oil-grease resistant papers (WOGR), electrostatic copier, text and cover,
and technical and specialty papers. Badger offers a wide range of colored papers
and specializes in color matching. Badger sells a portion of these products
under certain trademarks and trade names, including Ta-Non-Ka(R), Copyrite(R),
ENVIROGRAPHIC(R), Northern Brights(R), Artopaque(R) and Marks of Distinction(R).
These products are sold through paper merchants, brokers and value-added
converters who in turn sell to other value-adding entities or direct to the
consumer. Consumers of Badger fine paper products can be found in principal
cities throughout North America.
The Company's Yankee machine produced 22 percent of the paper products
manufactured by Badger in 1998, representing 32 percent of the 1998 revenue from
the sale of paper products. These products consist of converted plain or printed
waxed papers, laminating grades, machine-glazed, colors, specialty-coated base
papers, twisting papers and various other specialty papers. These products are
sold nationally and internationally to manufacturers, consumers and converters
by Badger's own sales personnel and commissioned brokers.
Badger Paper Flexible Packaging Division operates a printing and converting
facility that compliments Badger's packaging paper products. The Oconto Falls
facility is capable of processing various substrates of film and paper and
enhances the capabilities of the Peshtigo packaging paper operations, resulting
in opportunities to expand business growth for both. The facility also has
rewinding and polyethylene bag making equipment. Oconto Falls contributed 10
percent of the consolidated revenues in 1998.
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Competition
Badger's manufactured paper products are highly sensitive to competition from
numerous sources, including other paper products and products of other
composition. Product quality, price, volume and service are all competitive
factors.
Badger's production of fine papers from the Fourdrinier paper machine represents
less than one percent of the production capacity in the United States.
Competition for these papers comes from other specialty mills in North America
and imports from other countries. Competition for flexible packaging and
specialty papers produced from the Yankee paper machine comes from other
specialty mills; some of the mills are similarly constituted as Badger, others
have greater capacity. Backlogs are maintained by offering quality products,
prompt service and technical assistance, including a research and development
program to develop new products to meet customer product design specifications.
Inventories; Raw Materials
Badger's principal raw material used for papermaking operations is purchased
pulp. Badger utilizes a variety of fibers to meet the formulation requirements
of the papers it produces. Pre-consumer and post-consumer recycled pulp,
northern and southern softwood and hardwood pulps, and hard white rolls make up
the total fiber requirements. Since the closure of it's sulphite mill in 1996,
Badger has purchased all its fiber requirements on the open market.
Other raw materials are purchased directly from manufacturers and distributors.
Badger has at least two sources of supply for major items. Shortages of
purchased pulp or certain chemicals (including petrochemicals) could have an
adverse effect on Badger's ability to manufacture its products, and could
adversely affect product mix.
The Flexible Packaging Division's primary raw materials are paper, polyethylene
and printing inks. They are purchased directly from manufacturers, including
paper purchases from the Peshtigo mill.
In-process and finished goods inventory at the end of 1998 was equivalent to
approximately 38 days of production.
Energy
Badger is a large consumer of electricity and natural gas. Prior to 1997, Badger
utilized an on-site 2,000 kilowatt electrical co-generation system. However, as
a result of Badger's restructuring during 1996 and 1997, production steam
requirements declined to a point where it has become more cost effective to
purchase its entire electrical requirements. Badger's current electrical
requirements are purchased from local public utilities. Badger's heat
requirements are supplied by two dual-fueled boilers capable of burning natural
gas or fuel oil, and one natural gas boiler. Natural gas is purchased from
various sources in the United States and Canada. Management believes current
sources of natural gas, fuel oil and electricity are adequate to meet Badger's
needs.
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Patents
Badger owns certain patents and licenses used in connection with its business,
none of which are individually considered material to its business.
Research and Development
Badger's technical staff researches and develops new products, although outside
consultants are utilized from time to time. The amounts spent on product
research and development activities were $2,971,000 in 1998, $5,287,00 in 1997,
and $862,000 in 1996. The significant increase in research and development
expenditures in 1997 was directed to new product introductions and the
development of specialty products designed to meet the needs of our customers
and the industry.
Backlog
As of December 31, 1998, Badger's backlog of orders was approximately
$2,106,000, as compared to $3,550,000 and $875,000 at December 31, 1997 and 1996
respectively. Soft market conditions that existed at the end of each of these
years allowed our customers to order closer to their actual needs.
Customers
In 1998 and 1997, no customers represented over 10 percent of Badger's net
sales. Sales to a paper products operating segment customer were $12,030,000, or
15.8 percent of Badger's net sales, in 1996.
Environmental Matters
In August, 1997, the Wisconsin Department of Natural Resources (WDNR) met with
Badger to discuss finalization of the Title V Air Operating Permit at Badger's
Peshtigo, Wisconsin facility. Since that date, substantial changes have been
made to Peshtigo's operation. A joint meeting with the WDNR and Dames & Moore
(contracted environmental engineering firm) to discuss the modifications at
Badger is scheduled in the second quarter of 1999. Compliance with the new
requirements is expected.
All effluent flow from Badger's Peshtigo operations is directed into the joint
municipal waste water treatment plant, which Badger operates under contract with
the City of Peshtigo. The water treatment plant continues to meet or exceed all
applicable environmental requirements.
Negotiations continue with the WDNR regarding final closure cover of the Harbor
Road landfill. Badger and the WDNR have discussed various proposals and expect
final resolution to the closure proposal in 1999. The costs related to such
closure are expected to be within the amount reserved for such closure.
Badger Paper Flexible Packaging Division in Oconto Falls, Wisconsin, currently
complies with its air operating permit.
Badger has in force all of the necessary environmental permits from federal,
state and local authorities, and does not anticipate any problem with reissuance
of any permits.
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Employees
As of December 31, 1998, the Company had 295 employees. Of the 248 employees at
the Peshtigo facility, 184 were covered by six-year collective bargaining
contracts running through May 2001. The Oconto Falls facility employs 47
personnel, none of whom are covered by a collective bargaining contract.
Item 2. Properties
The Company considers its manufacturing facilities to be in good repair and
suitable for the purpose intended.
The Company's approximately 3,750 square foot headquarters and approximately
88,500 square foot paper manufacturing facility are located in Peshtigo,
Wisconsin. Badger Paper Flexible Packaging Division's approximately 40,000
square foot facility is located in Oconto Falls, Wisconsin.
Item 3. Legal Proceedings
The Company has no pending material legal proceedings.
Item 4. Submission of matters to a vote of security holders
No matters were submitted to a vote of security holders in the fourth quarter of
1998.
PART II
Item 5. Market for the registrant's common stock and related security holder
matters.
Badger Paper Mills, Inc. common shares are traded on the Nasdaq National Market
under the symbol BPMI. There were 455 registered shareholders of record as of
March 23, 1999. Stock price and dividend information is found on page 37 of this
report.
Item 6. Selected financial data
Information regarding selected financial data of the Company is presented on
page 3 of this report.
Item 7. Management's discussion and analysis of financial condition and results
of operations
Result of Operations
Review of Operations
1998 began with the layoff of 71 employees, or 23.5 percent of the workforce, as
the Company implemented the restructuring of its operations. The underlying
strategy of the restructuring was to continue to accept orders at profitable
margins, and to incur downtime when profit margins did not allow full operation.
New product development was a focal point in 1998 as part of the long-term
strategy of trending away from commodity type grades and moving sales and
products toward specialty, niche grades.
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Significant success in new product development contributed to attaining an
average of 53 percent specialty grades sales dollars in 1998 compared to 37
percent in 1997. Development of oil and grease resistant papers, lighter weight
printing papers, high-end laser papers and coated packaging papers also
contributed to the increased level of specialty business in 1998.
The year was difficult for employees because of the speed and magnitude of
change introduced in Badger's operations as the business was revamped. The
required changes were completed successfully based, to a large extent, on the
hard work and skill levels of the entire production staff. Throughout this
period, accident rates were at all time lows; rejections from customers were at
all time lows, and most production equipment operated at higher production rates
compared to previous years. Investments were made to contribute to these
accomplishments, but the underlying strength of our business is directly tied to
the character and integrity of our employees.
The operations group continues to concentrate on safety and quality in 1999. As
the business grows and more specialty grades are developed, the operations group
will focus on quicker grade changes, reducing waste, improving the flexibility
of the paper machines and the capabilities of the converting equipment.
1998 vs. 1997
In 1998 sales decreased $4,700,000 or 7 percent to $65,727,000 from $70,427,000
during 1997. Weak market conditions continued in the industry, especially in the
commodity market. This resulted in a decline of 11 percent in the volume of
shipments. The average selling price increased slightly despite the volume
decrease, primarily due to increased percentage of higher margin products sold
in 1998. Specialty products increased to approximately 53 percent of our gross
sales dollars in 1998 from 37 percent in 1997.
Cost of sales of $58,505,000 for 1998 decreased by $9,095,000 or 13 percent from
$67,600,000 in 1997. This reduction was the result of a 12% decrease in
production due to the weak market conditions in 1998. Our strategy was to take
downtime when market conditions warranted, versus running low margin commodity
products. Cost reductions were also achieved by the reduction of our
administrative and production workforce by approximately 71 employees. We also
experienced declining prices for the cost of purchased fiber during 1998.
Production rates at the Peshtigo facility were at record levels, while the
start-up of the new Chadwick printing press at the Oconto Falls plant
experienced some difficulties. These problems were resolved with the efforts of
engineering staffs at both facilities during the fourth quarter of 1998.
Gross profit in 1998 improved to $7,222,000 from $2,827,000 reported in 1997.
This primarily is a result of concentrating on higher profit margin specialty
products. Workforce reductions and cost saving initiatives that were implemented
on the manufacturing floor also contributed to the higher gross profit.
Selling and administration expenses increased $246,000 to $4,331,000 in 1998.
The additional expenses were in part associated with development costs in the
specialty market and consultants providing professional services relative to our
product restructuring during 1998.
The Company recorded a second quarter non-recurring capital gain of $611,000 on
the sale of its offsite training facility. Additionally, non-recurring executive
termination expenses of $286,000 associated with the
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resignations of the Company's former President and Vice President were also
recorded in the second quarter of 1998.
Interest expense during 1998 decreased 12 percent to $1,196,000 compared to
$1,354,000 in 1997. The decrease in interest expense was attributable to lower
average borrowings under the Company's revolving credit facility. Badger's
effective tax rate was a 34 percent provision in 1998, compared to a 32.1
percent benefit for the year 1997.
The Flexible Packaging Division, which contributed approximately 10 percent to
the consolidated revenue of Badger, was profitable.
1997 vs. 1996
Net sales for 1997 of $70,427,000 compared to $76,276,000 reported in 1996, or
an 8 percent decrease. Weak market conditions have existed in the industry since
the third quarter of 1995. This resulted in a decline of 4 percent in the volume
of shipments, 10 percent higher production downtime and a decrease in average
selling price of 5 percent for 1997 when compared to a year earlier.
Cost of sales for 1997 decreased 7 percent to $67,600,000 from $72,411,000 for
1996. Production from operations decreased 5 percent in 1997 when compared to a
year earlier due to machine downtime scheduled because of soft market
conditions. The cost of purchased fiber remained relatively stable throughout
1997 and equaled the cost incurred during 1996. Energy, operating and
maintenance supplies, and environmental expenses decreased 19 percent from a
year earlier due to the closure of Badger's pulp mill in May 1996, and lower
energy costs and cost reduction initiatives realized during 1997. Costs were
impacted in 1997 by $5,287,000 of research and product development costs
compared with $862,000 for 1996. The increased spending related to development
of new manufacturing techniques, new products and new applications that
management believed were necessary to implement the Company's strategy to
transition from a producer of commodity products and reposition itself in the
marketplace as a specialty products manufacturer.
Gross margins for 1997 of $2,827,000 compared to $3,865,000 a year earlier,
reflecting impact of the soft market conditions which existed throughout the
year. Selling and administrative expenses totaled $4,085,000 and $4,136,000 in
1997 and 1996, respectively.
Badger recorded a charge of $850,000 in 1997 in recognition of the
discontinuance of manufacturing certain products and elimination of certain
converting operations. Badger also recorded a 1997 charge of $783,000 primarily
related to the remaining unsold assets from the May 1996 pulp mill closure.
Plas-Techs (now known as Badger Paper Flexible Packaging Division) contributed
approximately 7 percent to the consolidated revenue of Badger and was profitable
for each of the years 1997 and 1996.
Interest expense for 1997 totaled $1,354,000 compared to $894,000 for 1996. The
increase in interest expense was attributable to higher average borrowings under
the Company's revolving credit facility. Badger's effective tax rate was a 32.1
percent benefit for 1997 compared to a 35.8 percent benefit for the year 1996.
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Liquidity and Capital Resources
Capital Expenditures
Capital expenditures for 1998 totaled $3,004,000 compared to $4,686,000 in 1997
and $6,856,000 in 1996. Depreciation totaled $2,752,000 in 1998 compared to
$2,790,000 and $2,743,000 in 1997 and 1996, respectively.
Major capital projects during 1998 included the metalizing of the Yankee dryer
surface, installation of helper drives on both paper machines, installation of a
cross direction moisture control system on the Yankee paper machine, and a wax
plant ramp and enclosure at Peshtigo. A Chadwick eight-color central impression
flexographic press was also installed at Badger Paper Flexible Packaging
Division's Oconto Falls facility. The 1997 and 1996 capital spending included
the new $7,500,000 stock preparation project at Peshtigo, which was completed in
early 1997.
In 1999, Badger plans to continue investment in upgrading its facilities,
including improvements and upgrades to both paper machines. The planned capital
expenditures are primarily geared toward product development support in our
drive toward specialty products.
Capital Resources
In January 1999, Badger refinanced its revolving credit facility with its
existing lender. The refinanced facility extends through November 2001, and
provides for borrowings up to $12,000,000.
Certain covenants require Badger to maintain a fixed charge ratio, a debt
leverage ratio, minimum tangible net worth, provide for limitations on capital
expenditures, and require the Company to make principal payments on its
outstanding Industrial Development Revenue Bonds. Further detail is presented in
Note F to the Company's Consolidated Financial Statements.
At December 31, 1998, $10,200,000 was outstanding under the revolving credit
agreement referenced above, a $1,200,000 decrease from the balance outstanding
at December 31, 1997.
Cash Flows
Cash provided from operations was $2,079,000 in 1998 and $399,000 in 1997. The
improved cash flow is attributed to the increased income generated in 1998.
Net cash provided by investing activities was $171,000 in 1998, which is a
substantial improvement over the $4,951,000 of cash used in 1997. The increase
relates to the proceeds from the sale of the Company's training facility and the
maturity of certificates of deposit. The Company also received the reimbursement
from General Electric Capital Corporation (GE Capital) of $1,572,000 advanced by
Badger in connection with the installation of the Chadwick press at the Flexible
Packaging Division's Oconto Falls facility. The Flexible Packaging Division
entered into a nine-year operating lease with GE Capital for the Chadwick press
on May 1, 1998.
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Cash used in financing activities in 1998 was $1,323,000, compared to $1,775,000
provided in 1997. The primary use of these funds was the reduction of long-term
debt by $2,323,000 in 1998.
Year 2000
Badger has a Year 2000 Committee that has been assigned the task of assuring
Year 2000 ("Y2K") compliance for all information technology and non -IT systems.
The Committee is committed to ensuring Badger is Y2K compliant by September 1,
1999.
The Company's State of Readiness - Information Technology
Our internal information technology staff has been assigned the responsibility
of assuring Year 2000 compliance for the Peshtigo and Oconto Falls facilities
for all information technology systems. This includes the main frame computer,
personal computers, network servers, telephone system and related software. The
staff has identified and is testing all hardware and software for Y2K
compliance. The highest priority will be assigned to hardware and software that
have date sensitive components.
Our main frame computer is Y2K compliant for its hardware and operating system.
It is estimated we have completed 10 to 15 percent of necessary programming
changes to the business systems to become Y2K compliant. We will be utilizing
outside resources to review, test and complete the required programming changes
on the software for our business systems.
We will be using specially purchased software to test compliance on all personal
computers. It is estimated that 10 percent, or 12 of our personal computers will
have to be upgraded or replaced. All other hardware and software will be tested
individually by our staff with support from the manufacturer and local service
companies. As the systems are being reviewed, consideration will be made for
upgrading and/or replacement.
Our network servers are relatively new and we do not anticipate any hardware or
software problems during the Y2K review process. The phone system was upgraded
to be Y2K compliant in 1998.
The Company's State of Readiness - Non-information Technology
Our engineering staff has assigned two employees the responsibility of assuring
Year 2000 compliance for all manufacturing aspects of the Peshtigo and Oconto
Falls facilities for all non-information technology systems. All equipment that
has computerized process controllers or any date sensitive data in computer
chips will be reviewed. This includes the paper machines, converting equipment,
boilers, waste treatment facilities, printing presses, lab equipment, and all
related software. The staff has identified and is testing all hardware and
software for Y2K compliance.
The most critical manufacturing equipment for a paper mill are the paper
machines themselves. Each paper machine is controlled by an independent process
control computer. In 1998 we replaced the process computer on the Yankee Paper
Machine and it was made Y2K compliant by the manufacturer. The Fourdrinier Paper
machine has a replacement process computer ordered for installation in July 1999
and it will be Y2K compliant.
The new Chadwick press at our Oconto Falls facility is also Y2K compliant.
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All hardware and software will be tested individually by our staff with support
from the manufacturer and local service companies. The highest priority will be
assigned to manufacturing equipment that is the most critical to our operations
and to any hardware and software that have date sensitive components. The
Company is surveying our key suppliers on the status of their Y2K compliance to
assure our continued source of raw materials and other critical components for
our manufacturing process. Their response to the survey will be used to
determine readiness of key suppliers.
The Costs to Address the Company's Year 2000 Issues
The Company has not incurred any additional expenses to address Y2K issues other
than normal wages and benefits of our IT and engineering staffs. Additional
costs will be incurred for contract programming and system upgrades and/or
replacement. We anticipate this total cost to be less than $200,000.
As mentioned previously, we replaced the process control computer on the Yankee
paper machine for $741,000, and have ordered a replacement computer for the
Fourdrinier paper machine. The Fourdrinier process computer has a cost of
$1,194,000, and will be leased. While the costs are significant, they have not
been included in the above cost estimates. In both cases , the process computers
were obsolete and had to be replaced. There was no acceleration of the project
due to Y2K issues.
The telephone system was replaced in 1998 in order to upgrade our telephone
capabilities. We have not included the costs in the above estimate because the
replacement was not accelerated due to Y2K issues.
The Risks of the Company's Year 2000 Issues
Risks of the Company must be divided by information technology and
non-information technology systems.
The primary risk for information technology is the main frame computer and our
business system software. As stated previously, the IBM RS-6000 computer is
compliant and we have upgraded to the latest operating system. The risk to the
Company is that the outside programming resources we intend to use to upgrade
other business software may not have adequate staff to program in the COBOL
language used in the Company's business systems. There is also the risk they may
not complete their task per our schedule. Their priorities will be date
sensitive software that processes data. Current discussions with these
contractors have indicated that the required programming will be completed on
time.
The primary risk for non-information technology relates to our boilers and paper
machines. Both paper machines use steam produced by the boilers. There are two
risks associated with the boilers -- the Y2K status of all process controls and
the availability of natural gas. We have begun to review the process controls on
the boilers to determine to what extent upgrades or replacements will be needed.
If natural gas is not available, the boilers will be able to burn fuel oil to
meet all steam requirements. As stated previously, the process computers on the
paper machines have been or are scheduled to be replaced.
At the Flexible Packaging Division the primary risk is the Y2K status of the
printing presses. The manufacturer of the newly-installed Chadwick press has
informed the Company that it is Y2K compliant. The Company is testing the other
two presses used at this facility.
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The Company's Contingency Plan
Contingency plans will be developed in the second quarter of 1999 as testing
proceeds and results are reviewed.
Risks described above for information technology can be temporarily handled
manually. One example would be hand typing customer invoices, purchase orders,
payroll checks and vendor checks. The other option would be to use less
sophisticated personal computer software on a short term basis.
Non-information technology risks were described above. The primary concern is
the control of specification of our manufacturing process. This would be handled
with additional staffing to manually control the manufacturing process in the
absence of computerized process controls.
In Oconto Falls we have three printing presses and would divert production to
the Chadwick press, which is Y2K compliant.
Item 7A. Quantitative and Qualitative Disclosure About Market Risk
The Company is exposed to market risk from changes in interest on its long-term
debt. The Company's revolving credit facility provides for borrowings up to $12
million and extends to November 2001. A commitment fee of 1/2 percent is payable
for unused amounts. Interest on borrowings is at the LIBOR rate plus 2.0 percent
(totaling 7.54 percent at December 31, 1998).
Certain of the IDRBs require aggregate quarterly installments of $140,000 plus
interest beginning March 31, 1999 through March 31, 2002. The Company is
required to make a principal payment of not less than $1,885,000 in March 1999.
Principal installments of $495,000, $400,000 and $35,000 are due June 30, 1999,
2000 and 2001, respectively, and $65,000 due January 31, 2001. These
installments are in addition to the quarterly installments. Interest on the
IDRBs is payable at floating rates determined by remarketing agents (4.1 percent
at December 31, 1998). The remaining IDRBs are due in monthly installments of
$5,555 plus interest through maturity in 1999.
Even though a majority of the Company's debt is at variable interest rates, it
is felt the Company's exposure to interest rate fluctuations is immaterial to
the consolidated financial statements. A hypothetical 1 percent increase in
interest rates would cause an estimated $175,000 increase in annual interest
expense.
The Company does not use financial instruments for trading purposes and is not a
party to any leveraged derivatives.
13
<PAGE>
Item 8. Financial statements and supplementary data
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
To the Board of Directors and Shareholders of
Badger Paper Mills, Inc. and Subsidiary
We have audited the accompanying consolidated balance sheets of Badger Paper
Mills, Inc. (a Wisconsin corporation) and Subsidiaries as of December 31, 1998
and 1997 and the related consolidated statements of operations, shareholders'
equity and cash flows for the years then ended. These financial statements are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audit. The consolidated
statement of operations, shareholders' equity and cash flows of Badger Paper
Mills, Inc. and Subsidiaries for the year ended December 31, 1996, were audited
by other auditors whose report dated February 4, 1997 expressed an unqualified
opinion on those statements.
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 our audits provide a reasonable basis for our opinion.
In our opinion, the 1998 and 1997 financial statements referred to above,
present fairly, in all material respects, the consolidated financial position of
Badger Paper Mills, Inc. and Subsidiaries as of December 31, 1998 and 1997 and
the consolidated results of their operations and their consolidated cash flows
for the years then ended in conformity with generally accepted accounting
principles.
/s/ GRANT THORNTON LLP
Appleton, Wisconsin
January 29, 1999
14
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Shareholders and
Board of Directors
Badger Paper Mills, Inc.
Peshtigo, Wisconsin
We have audited the accompanying consolidated statements of operations, of
changes in shareholders' equity, and of cash flows and the financial statement
schedule listed in the index of this Form 10-K of Badger Paper Mills, Inc. and
Subsidiaries for the year ended December 31, 1996, prior to the adoption and
application of Financial Accounting Standards Board Statement No. 131, as
discussed in Note H. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audit. We have not audited the consolidated
financial statements of the Company for any period subsequent to December 31,
1996, nor have we examined any adjustments or disclosures related to the 1996
information contained in Note H.
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 audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above, prior to the
adoption and application of Financial Accounting Standards Board Statement No.
131, as discussed in Note H, present fairly, in all material respects, the
consolidated results of operations of Badger Paper Mills, Inc. and Subsidiaries
and their cash flows for the year ended December 31, 1996, in conformity with
generally accepted accounting principles. In addition, in our opinion, the
financial statement schedule referred to above, when considered in relation to
the basic consolidated financial statements taken as a whole, presents fairly,
in all material respects, the information to be included therein.
/s/ PRICEWATERHOUSE COOPERS LLP
Milwaukee, Wisconsin
February 4, 1997
15
<PAGE>
Badger Paper Mills, Inc. And Subsidiaries
CONSOLIDATED BALANCE SHEETS
December 31, 1998 and 1997
(dollars in thousands)
ASSETS 1998 1997
Current Assets
Cash and cash equivalents $2,229 $1,302
Certificates of deposit 996 1,382
Marketable securities 1,361 1,318
Accounts receivable, net 5,262 5,120
Inventories 6,201 4,844
Refundable income taxes 27 385
Deferred income taxes 1,220 1,291
Prepaid expenses and other 558 298
------- -------
Total current assets 17,854 15,940
PROPERTY, PLANT, EQUIPMENT AND TIMBERLANDS, NET 27,291 29,287
OTHER ASSETS
Trade credits 696 996
Other 2,158 2,133
------- -------
2,854 3,129
Total assets $47,999 $48,356
======= =======
LIABILITIES
CURRENT LIABILITIES
Current portion of long-term debt $3,068 $123
Accounts payable 3,913 4,313
Accrued liabilities 3,357 4,308
Income taxes payable 170 -
------- -------
Total current liabilities 10,508 8,744
LONG-TERM DEBT 16,126 20,394
DEFERRED INCOME TAXES 1,700 1,185
OTHER LIABILITIES 1,408 1,589
COMMITMENTS AND CONTINGENCIES - -
SHAREHOLDERS' EQUITY
Common stock, no par value; 4,000,000
shares authorized, 2,160,000 shares issued 2,700 2,700
Additional paid in capital 200 190
Retained earnings 17,296 15,552
Treasury stock, at cost, 199,278 and 208,145
shares in 1998 and 1997, respectively (1,939) (1,998)
------- -------
Total shareholders' equity 18,257 16,444
------- -------
Total liabilities and shareholders' equity $47,999 $48,356
======= =======
The accompanying notes are an integral part of these consolidated financial
statements.
16
<PAGE>
<TABLE>
Badger Paper Mills, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF OPERATIONS
For Years Ended December 31, 1998, 1997 and 1996
(dollars in thousands, except per share data)
<CAPTION>
1998 1997 1996
<S> <C> <C> <C>
Net sales $65,727 $70,427 $76,276
Cost of sales 58,505 67,600 72,411
------- ------- -------
Gross profit 7,222 2,827 3,865
Selling and administrative expenses 4,331 4,085 4,136
Restructuring provision - 850 7,430
Pulp mill asset impairment charge - 783 -
------- ------- -------
4,331 5,718 11,566
------- ------- -------
Operating income (loss) 2,891 (2,891) (7,701)
Other income (expense):
Interest and dividend income 237 236 224
Interest expense (1,196) (1,354) (894)
Executive termination costs (286) - -
Unrealized holding gain on
trading securities - - 307
Gain (loss) on disposal of property,
plant, equipment and timberlands 632 (14) 4,871
Miscellaneous, net 363 428 (253)
------- ------- -------
(250) (704) 4,255
------- ------- -------
Income (loss) before income taxes 2,641 (3,595) (3,446)
Provision (benefit) for income taxes 897 (1,153) (1,234)
------- ------- -------
Net income (loss) $1,744 $(2,442) $(2,212)
======= ======= =======
Net earnings (loss) per share $0.89 $(1.25) $(1.14)
======= ======= =======
The accompanying notes are an integral part of these consolidated financial
statements.
</TABLE>
17
<PAGE>
Badger Paper Mills, Inc. and Subsidiaries
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
For Years ended December 31, 1998, 1997 and 1996
(dollars in thousands)
1998 1997 1996
Common stock
Balance, December 31 $ 2,700 $ 2,700 $ 2,700
------- ------- -------
Additional paid-in capital
Balance, January 1 190 178 168
Treasury stock issued 10 12 10
------- ------- -------
Balance, December 31 200 190 178
------- ------- -------
Retained earnings
Balance, January 1 15,552 17,994 20,633
Net income (loss) 1,744 (2,442) (2,212)
Cash dividend of $.22 in 1996 -- -- (427)
------- ------- -------
Balance, December 31 17,296 15,552 17,994
------- ------- -------
Treasury stock
Balance, January 1 (1,998) (2,040) (2,058)
Shares acquired (920 shares in 1997) -- (8) --
Shares issued (8,867, 7,645 and 2,800
shares in 1998, 1997 and 1996,
respectively) 59 50 18
------- ------- -------
Balance, December 31 (1,939) (1,998) (2,040)
------- ------- -------
Shareholders' equity
Balance, December 31 $ 18,257 $ 16,444 $ 18,832
======= ======= =======
The accompanying notes are an integral part of these consolidated financial
statements.
18
<PAGE>
<TABLE>
Badger Paper Mills, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
For Years ended December 31, 1998, 1997 and 1996
(dollars in thousands)
<CAPTION>
1998 1997 1996
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) 1,744 $(2,442) $(2,212)
Adjustments to reconcile to net cash provided by operating activities:
Depreciation and depletion 2,752 2,790 2,743
Pulp mill closure provision, net of cash expenditures - - 6,923
Pulp mill impairment charge - 783 -
Director's fees paid in stock 69 60 -
Deferred income taxes 586 (746) (905)
Net proceeds from sales of marketable securities trading - - 2,533
Unrealized holding loss on marketable securities trading - - (307)
Realized loss (gain) on sale of marketable securities 48 (8) 468
(Gain) loss on disposal of property, plant, equipment and
timberlands (632) 14 (4,871)
Changes in assets and liabilities
Accounts receivable, net (142) (564) 2,399
Inventories (1,357) 1,993 (113)
Accounts payable and accrued liabilities (1,351) (2,250) 719
Income taxes refundable (payable) 528 1,081 (1,293)
Other (166) (312) (753)
------- ------- --------
Net cash provided by operating activities 2,079 399 5,331
Cash flows from investing activities:
Additions to property, plant, equipment and timberlands (3,004) (4,686) (6,856)
Proceeds from sale of property, plant, equipment and timberlands 2,880 627 5,133
Net acquisition of certificates of deposit 386 (1,382) -
Purchases of marketable securities (1,927) (1,192) (3,601)
Proceeds from sale of marketable securities 1,836 1,682 2,245
Restricted funds from Industrial Development Revenue Bond - - 34
------- ------- --------
Net cash provided by (used in) investing activities 171 (4,951) (3,045)
Cash flows from financing activities:
Payments on long-term debt (2,323) (119) (115)
Increase in revolving notes payable 1,000 1,900 1,500
Dividends paid - - (427)
Acquisition of treasury stock - net - (6) -
------- ------- --------
Net cash used in (provided by) financing activities (1,323) 1,775 958
------- ------- --------
NET INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS 927 (2,777) 3,244
Cash and cash equivalents:
Beginning of year 1,302 4,079 835
------- ------- --------
End of year $2,229 $1,302 $4,079
======= ======= ========
The accompanying notes are an integral part of these statements.
</TABLE>
19
<PAGE>
Badger Paper Mills, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1998 and 1997
NOTE A - SUMMARY OF ACCOUNTING POLICIES
Badger Paper Mills, Inc. and Subsidiaries ("Company") manufactures paper and
paper products and provides converting and printing services to customers
throughout North America. In February 1998, Peshtigo Power, LLC ("Peshtigo") was
incorporated to produce steam for Badger Paper Mills, Inc. Peshtigo Power is
wholly owned by the Company.
A summary of the significant accounting policies applied in the preparation of
the accompanying consolidated financial statements follows.
1. Consolidation Principles
The consolidated financial statements include the accounts of Badger Paper
Mills, Inc. and its wholly-owned Subsidiaries. All significant intercompany
accounts and transactions have been eliminated.
2. Operating Segments
The Company has adopted the provisions of Statement of Financial Accounting
Standards (SFAS) No. 131, "Disclosures About Segments of an Enterprise and
Related Information". SFAS 131 requires public companies to use a "management
approach" to defining and reporting the activities of operating segments. The
management approach defines operating segments along the lines used by
management to assess performance and make operating and capital decisions. The
adoption of SFAS 131 did not affect the Company's results of operations or
financial position, but did affect the disclosure of segment information.
See Note H.
3. Concentration of Credit Risk
Financial instruments which potentially subject the Company to concentrations of
credit risk consist principally of cash and cash equivalents and trade accounts
receivable. The Company places its cash and cash equivalents with high quality
financial institutions. The Company provides credit in the normal course of
business to its customers. These customers are located throughout North America.
The Company performs ongoing credit evaluations of its customers and maintains
allowances for potential credit losses and generally does not require collateral
to support the accounts receivable balances.
4. Estimates
Preparation of the consolidated financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reported period. Actual
results could differ from those estimates.
The valuation of trade credits involves a significant estimate. The Company
regularly evaluates the recoverability of its trade credits. The Company has
looked at several factors in determining the recoverability. These factors
included: 1) prior experience in utilizing trade credits; 2) current
negotiations with vendors which would involve the utilization of trade credits;
3) existing contractual agreements with vendors which utilize trade credits; and
4) the likelihood of renewing and extending existing agreements which utilize
trade credits. It is reasonably possible that the Company's estimate of the
recoverability of these trade credits will change significantly, with the result
that the carrying value may have to be reduced.
20
<PAGE>
5. Cash Equivalents and Certificates of Deposit
For financial reporting purposes, the Company considers all highly liquid debt
instruments purchased with a maturity of three months or less to be cash
equivalents.
6. Marketable Securities
The investment portfolio at December 31, 1998 and 1997, which consists of
taxable United States agency bonds, corporate bonds, tax-exempt bonds and equity
securities are classified as available for sale. The difference between cost and
fair value is insignificant. The specific identification method is used to
compute realized gains and losses. The bonds mature at various dates as follows:
1 year to 5 years, $58,843, and after 10 years, $1,142,531. The balance of
marketable securities consists of equity securities of $160,000.
7. Receivables
Accounts receivable are stated net of an allowance for sales returns, discounts
and doubtful accounts.
8. Trade Credits
Trade credits represent credits issued by an international barter firm in
exchange for surplus inventory. Trade credits are recorded at the lower of cost
or market of the inventory exchanged. Gain is recognized upon utilization of the
trade credits with the Company's suppliers and vendors.
9. Inventories
Substantially all inventories are valued at the lower of cost or market with
cost being determined on the last-in, first-out (LIFO) basis.
10. Property, Plant, Equipment and Timberlands
These assets are stated at cost, less depreciation and depletion. Depreciation
of plant and equipment is provided on the straight-line basis over the estimated
useful lives of the assets. Accelerated depreciation is used for income tax
purposes. Depletion on timberlands is determined on the cost method.
11. Income Taxes
Deferred income taxes are recognized for the tax consequences in future years of
differences between the tax bases of assets and liabilities and their financial
reporting amounts at each year-end based on enacted tax laws and statutory tax
rates applicable to the periods in which the differences are expected to affect
taxable income. Valuation allowances are established when necessary to reduce
deferred tax assets to the amount expected to be realized. Income tax expense is
the tax payable for the period and the change during the period in deferred tax
assets and liabilities.
12. Research and Product Development Costs
Research and product development costs related to potential new products and
applications are expensed when incurred. These costs totaled $2,971,000,
$5,287,000 and $862,000 for 1998, 1997 and 1996, respectively, and are included
in cost of sales.
21
<PAGE>
13. Net Earnings Per Share
Net earnings per share are computed based on the weighted average number of
shares of common stock outstanding during the year (1,955,772 shares, 1,947,128
shares and 1,944,699 shares in 1998, 1997 and 1996, respectively). The
contingently issued stock options discussed in Note M have not been considered
in this calculation.
14. Revenue Recognition
Revenue is recognized by the Company when goods are shipped.
15. Environmental Expenditures
Accruals for remediation costs are recorded when it is probable that a liability
has been incurred and the amount of the costs can be reasonable estimated.
16. Financial Instruments
For cash and certificates of deposit, the carrying amount approximates fair
value because of the short maturity of these instruments. For long-term debt,
the carrying amount approximates fair value based on comparison with current
rates offered to the Company for debt with similar remaining maturities.
17. Reclassifications
Certain reclassifications have been made to the 1997 and 1996 consolidated
financial statements to conform to the 1998 presentation.
NOTE B - RECEIVABLE ALLOWANCES
The receivable allowances at December 31, 1998 and 1997 are as follows (in
thousands):
1998 1997
------ ------
Sales returns and allowances $154 $208
Cash discounts 31 35
Doubtful accounts 59 75
----- -----
$244 $318
===== =====
NOTE C - INVENTORIES
The major classes of inventories, valued on the LIFO cost method, at December
31, 1998 and 1997 are as follows (in thousands):
1998 1997
---- ----
Raw materials $1,858 $1,281
Work-in-process and finished stock 4,343 3,563
----- -----
$6,201 $4,844
===== =====
22
<PAGE>
The FIFO cost of raw materials, work-in-process and finished stock inventories
approximated $10,150,000 and $9,050,000 at December 31, 1998 and 1997,
respectively. It is not practical to separate finished stock and work-in-process
inventories.
NOTE D - PROPERTY, PLANT, EQUIPMENT AND TIMBERLANDS
The major classes of property, plant, equipment and timberlands at December 31,
are as follows (in thousands):
1998 1997
Land $ 120 $ 120
Buildings 8,297 8,268
Machinery, equipment and
railroad siding 56,044 56,105
Timberlands 79 79
Construction-in-progress -
equipment 549 1,757
------ ------
65,089 66,329
Accumulated depreciation and depletion 37,798 37,042
------ ------
$27,291 $29,287
====== ======
At December 31, 1998 and 1997, $18,184,000 and $17,650,000, respectively, of
fully depreciated assets were still in use. In December 1997, the Company
evaluated the remaining fixed assets held for resale relating to the closure of
the pulp mill by comparing the asset's carrying amount with its fair value less
cost to sell. As a result, the Company recorded an impairment charge of
$783,000.
During 1998, the Company sold its off-site training facility for $725,000
resulting in a gain of $611,000.
During 1996, the Company sold timberlands for $5,051,000 resulting in a gain of
$4,873,000.
NOTE E - ACCRUED LIABILITIES
Accrued liabilities at December 31, 1998 and 1997 are as follows (in thousands):
1998 1997
Compensation and related taxes $1,539 $1,975
Profit sharing 496 587
Restructuring 15 810
Environmental remediation 121 200
Other 1,186 736
------ -----
$3,357 $4,308
===== =====
23
<PAGE>
NOTE F - LONG-TERM DEBT
Long-term debt at December 31, 1998 and 1997 consisted of the following (in
thousands):
1998 1997
---- ----
Revolving Credit Agreement $10,200 $11,400
Industrial Development Revenue Bonds (IDRBs) 7,417 7,483
Urban Development Action Grant 1,577 1,634
------ ------
19,194 20,517
Less: current portion 3,068 123
------ ------
$16,126 $20,394
====== =======
In January 1999, the Company refinanced its revolving credit facility. The
Company's refinanced revolving credit facility provides for borrowings up to $12
million and extends to November, 2001. A commitment fee of 1/2 percent is
payable for unused amounts. Interest on borrowings is at the LIBOR rate plus 2.0
percent (totaling 7.54 percent at December 31, 1998). Borrowings are
collateralized by cash and cash equivalents, certificates of deposit, marketable
securities, accounts receivable, inventory and certain property, plant and
equipment.
Certain of the IDRBs require varying quarterly installments of $140,000 plus
interest beginning March 31, 1999 through March 31, 2006. The Company is
required to make a principal payment of not less than $1,885,000 in March 1999.
Principal installments of $495,000, $400,000 and $35,000 are due June 30, 1999,
2000 and 2001, respectively, and $65,000 is due January 31, 2001. These
installments are in addition to the quarterly installments. Interest on the
IDRBs is payable at floating rates determined by remarketing agents (4.1 percent
at December 31, 1998). The remaining IDRBs are due in monthly installments of
$5,555 plus interest through maturity in 1999.
The revolving credit facility and certain IDRBs require, among other items, the
Company to maintain a fixed charge coverage ratio of 1.15 and 1.50 for periods
ending June 29, 2000 and 2001, respectively and 2.0 for periods subsequent to
June 29, 2001; a debt leverage ratio of 3.50 for 1999 and 2.75 for periods after
1999. Capital expenditures are limited to not more than $3,700,000, $6,000,000
and $4,800,000 in 1999, 2000 and 2001, respectively.
The Urban Development Action Grant is due in monthly installments of $15,437,
including interest at an effective rate of approximately 8.0 percent, through
maturity in April, 2000, at which time a final payment of $1,499,490 is due.
This grant is collateralized by certain machinery and equipment.
Future maturities of all long-term debt are as follows:
Year ended December 31,
1999 $ 3,068
2000 2,476
2001 10,860
2002 560
2003 560
2004 and thereafter 1,670
------
$19,194
======
24
<PAGE>
NOTE G - INCOME TAXES
The provision (benefit) for income taxes consists of the following (in
thousands):
1998 1997 1996
---- ---- ----
Currently payable (refundable):
Federal $179 $ (438) $ (359)
State 132 31 30
---- ---- ----
311 (407) (329)
Deferred:
Federal 336 (746) (915)
State 250 - 10
---- ---- ----
586 (746) (905)
---- ---- ----
$897 $(1,153) $(1,234)
==== ====== ======
The significant differences between the effective tax rate and the statutory
federal tax rates are as follows:
1998 1997 1996
Statutory Federal tax rate 34.0% (34.0)% (34.0)%
Tax-exempt interest - - (0.4)
State taxes - - 0.8
Other - 1.9 (2.2)
---- ----- -----
Effective tax rate 34.0% (32.1)% (35.8)%
==== ===== =====
The components of the deferred tax assets and liabilities as of December 31 are
as follows (in thousands):
1998 1997
Deferred tax assets:
Accounts receivable $ 143 $ 108
Inventories 311 436
Accrued expenses 766 763
Deferred compensation 95 118
Postretirement benefits 290 344
Tax credit carryforwards 2,938 2,710
State net operating loss carryforwards 362 550
State credit carryforwards 2,099 1,766
Valuation allowance (2,692) (2,075)
------- -------
4,312 4,720
Deferred tax liabilities:
Fixed assets (4,792) (4,614)
------- -------
Net asset (liability) $ (480) $ 106
======= =======
25
<PAGE>
For Federal income tax purposes, the Company has research and development credit
carryovers and alternative minimum tax credit carryovers of $1,099,000 and
$1,840,000, respectively. For state income tax purposes, the Company has net
operating loss and tax credit carryovers of $11,796,000 and $2,098,000,
respectively. Certain carryforwards expire at various times over the next 10-15
year period. For financial reporting purposes, a valuation allowance has been
established to the extent that state carryforwards, absent future taxable
income, will expire unused. The valuation allowance increased $617,000 based on
management's reevaluation of the likelihood of realization.
NOTE H - OPERATING SEGMENTS
The Company adopted SFAS 131 in 1998. Prior years' information has been restated
to present segment information for the Company's two business segments, paper
products and printing and converting services. The paper products segment
produces a variety of paper products including fine paper, business paper,
colored paper, waxed paper, specialty coated base papers and twisting papers.
The printing and converting segment prints and converts flexible packaging
materials for the paper products segment as well as films and non-woven
materials from other customers.
The accounting policies of the segments are the same as those described in Note
A, Summary of Significant Accounting Policies. Intersegment revenue relates to
the transfer of material or provision of services between the two segments. The
Company evaluates the performance of its segments and allocates resources to
them based on net earnings. There are no jointly used or allocated assets
between the segments.
Total segment income, assets and other significant items are the same as the
consolidated information.
All operations of the Company are located in the United States. Revenues from
foreign countries are primarily from Canada and Mexico, and are immaterial to
total revenues.
26
<PAGE>
The following provides information on the Company's segments (in thousands):
<TABLE>
<CAPTION>
Paper Products Printing and Converting Total
1998 1997 1996 1998 1997 1996 1998 1997 1996
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues from external
customers $ 61,236 $ 66,260 $ 72,244 $ 6,709 $ 5,177 $ 5,280 $ 67,945 $ 71,437 $ 77,524
Intersegment revenues 588 38 31 1,630 972 1,217 2,218 1,010 1,248
Depreciation and
depletion 2,560 2,617 2,581 192 173 162 2,752 2,790 2,743
Restructuring provision - 850 7,430 - - - - 850 7,430
Pulp mill asset
impairment charge - 783 - - - - - 783 -
Interest expense 1,097 1,250 795 99 104 99 1,196 1,354 894
Executive termination
costs 286 - - - - - 286 - -
Gain (loss) from
disposal of long-lived
assets 632 (14) 4,871 - - - 632 (14) 4,871
Income tax (benefit)
provision 862 (1,325) (1,492) 35 172 258 897 (1,153) (1,234)
Segment income (loss) 1,490 (2,771) (2,968) 254 329 756 1,744 (2,442) (2,212)
Segment assets 42,779 43,184 47,574 5,220 5,172 4,378 47,999 48,356 51,952
Expenditures for
long-lived assets 2,498 3,502 6,158 506 1,184 698 3,004 4,686 6,856
</TABLE>
The following is a reconciliation of segment information to consolidated
information:
Revenues: 1998 1997 1996
Total revenues for segments $67,945 $71,437 $77,524
Elimination of intersegment revenues (2,218) (1,010) (1,248)
------- ------- -------
$65,727 $70,427 $76,276
======= ======= =======
NOTE I - EMPLOYEE BENEFITS
The Company has profit sharing plans covering substantially all employees.
Contribution expenses associated with these plans were $496,000, $587,000 and
$723,000 in 1998, 1997 and 1996, respectively.
27
<PAGE>
NOTE J - SUPPLEMENTAL CASH FLOW INFORMATION
Cash paid for interest and income taxes was as follows (in thousands):
1998 1997 1996
Interest $1,235 $1,345 $876
Income taxes 57 5 937
Noncash investing and financing activity:
At December 31, 1998, 1997 and 1996, accounts payable included $22,000, $134,000
and $732,000, respectively, for property and equipment additions.
NOTE K - MAJOR CUSTOMERS
In 1998 and 1997, no customers represented over 10 percent of the Company's net
sales. Sales to a customer, which represents over 10 percent of the Company's
net sales, were $12,030,000 in 1996. These sales were from the Paper Products
operating segment.
NOTE L - DIRECTOR STOCK GRANT PLAN
In 1997, in order to attract and retain competent directors to serve as
Directors of the Company, the Company established a Director Stock Grant Plan
(the "Director Plan"). An aggregate of 25,000 shares of Common Stock was
reserved for issuance under the Director Plan. Under the Director Plan, each
Director of the Company receives a grant of Common Stock in partial payment of
his or her annual retainer. During 1998 and 1997, 8,867 and 7,345 shares,
respectively, were issued from treasury stock, at a value of $69,000 and
$60,000, respectively.
NOTE M B STOCK OPTION PLAN SUBJECT TO SHAREHOLDER APPROVAL
On May 12, 1998, the Board of Directors approved an incentive stock option plan
(the Plan) as a mechanism to attract and retain its officers and key employees
by providing additional performance incentives and the opportunity to share
ownership in the Company. The Plan allows the Company to grant options or shares
of restricted stock not to exceed more than an aggregate of 130,000 common
shares. The exercise price for any stock option is equal to the fair market
value of a share of common stock on the date of grant. The term of any option
may not exceed ten years. The Plan is subject to approval by the Company's
stockholders at their next annual meeting in May 1999. As of December 31, 1998,
the Board of Directors had conditionally granted 115,000 options to officers and
key employees at an exercise price of $8.09 per common share, subject to the
approval of the Company's stockholders.
If the Company stockholders approve this plan, the Company will account for the
stock-based compensation using the intrinsic value method prescribed by
Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees."
28
<PAGE>
NOTE N - RESTRUCTURING PROVISIONS
In December 1997, the Company recorded a charge of $850,000 in connection with a
plan to discontinue manufacturing certain products and eliminate certain
converting operations. The charge includes employee termination benefits
($297,000), write down of equipment ($313,000), write down of inventory
($152,000), and a provision for other miscellaneous costs ($88,000).
During 1996, the Company recorded a charge of $7,430,000 resulting from the
closure of the pulp mill. The charge includes the write down of pulp mill assets
and inventories ($5,294,000), costs associated with the early retirement or
severance of certain workers ($1,672,000) and provision for other miscellaneous
costs ($464,000).
NOTE O - COMMITMENTS AND CONTINGENCIES
Rental Agreements
The Company leases certain equipment under various agreements, classified as
operating leases, expiring through April 2007. Total rent expense amounted to
approximately $222,200, $123,000 and $85,000 for the years ended December 31,
1998, 1997 and 1996, respectively.
Future minimum rental payments are as follows (in thousands):
Year ended December 31,
1999 $ 235
2000 235
2001 235
2002 235
2003 235
2004 and thereafter 786
------
$1,961
======
Environmental Matters
The Company has accrued for certain remediation costs associated with the
closure of a solid waste landfill. The Company's estimated potential exposure
ranges from $121,000 to $471,000, based on the remediation methods and material
used to close the site. At December 31, 1998, the Company accrued $121,000 based
on its selected remediation method and materials. Currently, the Wisconsin
Department of Natural Resources (WDNR) and the Company are negotiating the
requirements for appropriate site monitoring and further remediation efforts if
additional environmental problems are detected at the site. Also, WDNR may
require the Company to escrow approximately $250,000 over a five-year period for
additional remediation costs if environmental problems are detected. The Company
does not expect that the outcome of this matter will have a material adverse
effect on its consolidated financial position or results of operations in any
one year.
PART III
Item 9. Changes in and disagreements with accountants on accounting and
financial disclosure
On July 10, 1997, Badger changed its certifying accountant. Badger's Board of
Directors approved the dismissal of the accounting firm Coopers and Lybrand LLP,
and concurrently resolved to engage Grant Thornton LLP in their place.
29
<PAGE>
Grant Thornton, who currently serves as Badger's principal accountant, audited
the Company's financial statements for the fiscal years ended December 31, 1998
and 1997.
The reports made by Coopers and Lybrand on Badger's financial statements for
1996 contained no adverse opinion or disclaimer of opinion, nor were such
reports qualified or modified as to uncertainty, audit scope, or accounting
principles. During the fiscal year 1996, and for the interim period ended July
10, 1997, Badger had no disagreement with Coopers and Lybrand on any matter of
accounting principles or practices, financial statement disclosure, or auditing
scope or procedure, which, if not resolved to the satisfaction of Coopers and
Lybrand, would have caused them to make reference to the matter in their report.
No other reportable events occurred within Badger's two most recent fiscal
years.
Item 10. Directors and executive officers of the registrant
(a) Directors of the registrant
The information required by this item is incorporated by reference from the
information included under the captions, "Election of Directors" and "Compliance
with Section 16(a) of the Securities Exchange Act of 1934" set forth in the
Company's definitive proxy statement for its 1999 Annual Meeting of
Shareholders.
(b) Executive officers of registrant
Period Served
Name Age Office In This Office
Michael J. Bekes 41 Vice President/COO of the Company 3 years
Vice President/COO, Fletcher Paper Co. 1 1/2 years
Mill Manager, Fletcher Paper Co. 1/2 year
Manager of Operations, Fletcher Paper Co. 5 1/2 years
Thomas W. Cosgrove 58 President of the Company 3/4 year
General Manager, Kimberly Clark
Corporation (Scott Paper Co.),
Marinette Division 8 years
Thomas J. Kuber 58 Chairman of the Board of the Company 12 years
President, K&K Warehousing 26 years
Chief Executive Officer, Great
Lakes Pulp & Fibre, Inc. 4 years
Clifton A. Martin 47 Vice President, General Manager, Badger
Paper Flexible Pkg. 2 3/4 years
General Manager, Badger Paper Flexible
Packaging 3 3/4 years
Sales Representative of the Company 6 1/2 years
Mark C. Neumann 39 Vice President/Sales of the Company 3 3/4 years
Director of Marketing of the Company 2 3/4 years
Sales Representative of the Company 7 1/2 years
George J. Zimmerman 52 Treasurer of the Company 3/4 year
Controller of the Company 3 years
Division Accounting Manager, Pope & Talbot 7 years
Officers are elected to hold office until the next annual meeting of
shareholders following the annual meeting of shareholders or until their
successors are elected and qualified. There is no arrangement or understanding
between any
30
<PAGE>
of the above officers or any other person pursuant to which such officer was
selected for the office held. No family relationship of any kind exists between
the officers.
Item 11. Executive compensation
The information required by this item is incorporated by reference from the
information included under the captions "Executive Compensation", "Report of
Compensation Committee on Annual Executive Management Compensation" and
"Compensation Committee Interlocks and Insider Participation" set forth in the
Company's definitive proxy statement for its 1999 Annual Meeting of
Shareholders.
Item 12. Security ownership of certain beneficial owners and management
(a) Security ownership of certain beneficial owners
The information required by this item is incorporated by reference from the
information included under the caption, "Stock Ownership of Certain Beneficial
Owners and Management," set forth in the Company's definitive proxy statement
for its 1999 Annual Meeting of Shareholders.
(b) Security ownership of management
The information required by this item is incorporated by reference from the
information included under the captions, "Stock Ownership of Certain Beneficial
Owners and Management," and "Election of Directors", set forth in the Company's
definitive proxy statement for its 1999 Annual Meeting of Shareholders.
Item 13. Certain relationships and related transactions
The information required by this item is incorporated by reference from the
information included under the caption, "Certain Transactions," set forth in the
Company's definitive proxy statement for its 1999 Annual Meeting of
Shareholders.
31
<PAGE>
PART IV
Item 14. Exhibits, financial statement schedules and reports on Form 8-K
(a) (1) List of financial statements:
The following is a list of the financial statements of Badger Paper Mills, Inc.,
together with the report of independent accountant, included in this report:
Pages
Reports of Independent Accountant
Consolidated balance sheets, December 31, 1998 and 1997............16
Consolidated statements of operations for the years ended
December 31, 1998, 1997 and 1996.................................17
Consolidated statements of changes in shareholders'
equity for the years ended
December 31, 1998, 1997 and 1996.................................18
Consolidated statements of cash flows for the years
ended December 31, 1998, 1997 and 1996...........................19
Notes to financial statements......................................20
(a) (2) List of financial schedules:
The following is a listing of data submitted herewith:
Reports of independent accountant on financial statement
schedule
Schedule for the years ended December 31, 1998, 1997 and 1996:
II Valuation and qualifying accounts and reserves...............36
Financial statement schedules other than that listed above are omitted for the
reason that they are either not applicable, not required, or that equivalent
information has been included in the financial statements, the notes thereto or
elsewhere herein.
(a) (3) Exhibits
(3) (i) Restated Articles of Incorporation, as amended (Incorporated by
reference to Exhibit 3(i) to the Company's Annual Report on Form
10-K for the year ended December 31, 1996).
(ii) By-laws as amended through March 13, 1997 (Incorporated by
reference to Exhibit 3(ii) to the Company's Annual Report on
Form 10-K for the year ended December 31, 1996).
(4) (i) U. S. $12,000,000 Credit Agreement dated January 29, 1999, by and
among the Company, Badger Paper Mills Flexible Packaging Division,
Inc.(formerly known as Plas-Techs, Inc.) and Harris Trust and
Savings Bank, individually and as agent, and the lenders from time
to time party thereto.
(10) Material Contracts:**
(i) Supplemental Executive Retirement Plan dated December 18, 1992
(Incorporated by reference to Exhibit 10 (ii) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1992).
(ii) Executive Employment Agreement dated March 1, 1995, between the
Company and Claude L. Van Hefty (Incorporated by reference to
Exhibit 10(vii) to the Company's Annual Report on Form 10-K for
the year ended December 31, 1994).
(iii)Health Insurance Retirement Benefit Agreement dated January 1,
1996 between the Company and Claude L. Van Hefty (Incorporated by
reference to Exhibit 10(v) to the Company's Annual Report on Form
10-K for the year ended December 31, 1996).
32
<PAGE>
(iv) Director Stock Grant Plan dated July 23, 1997 (Incorporated by
reference to Exhibit 10 to the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 1997).
(v) Employee Resignation and Release Agreement dated as of March 12,
1998 between Badger Paper Mills, Inc. and Claude L. Van Hefty
(Incorporated by reference to Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1998).
(vi) Employee Resignation and Release Agreement dated as of March 12,
1998 between Badger Paper Mills, Inc. and Miles L. Kresl, Jr.
(Incorporated by reference to Exhibit 10.2 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1998).
(23) (i) Consent of Current Independent Public Accountant
(ii) Consent of Former Independent Public Accountant
(27) Financial Data Schedule (EDGAR version only)
(99) Definitive Proxy Statement for 1999 Annual Meeting of ShareholderS
(to be filed with the Commission under Regulation 14A and
incorporated by reference herein to the extent indicated in this
Form 10-K).
**Each of the "material contracts" represents a management compensatory
agreement or arrangement.
(b) Reports on Form 8-K:
(i) No reports on Form 8-K were filed during the fourth quarter of
1998.
33
<PAGE>
Pursuant to the requirements of Section 13 or 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.
DATE: March 31, 1999
BADGER PAPER MILLS, INC.
By: /s/ Thomas W. Cosgrove
Thomas W. Cosgrove
President
(Chief Operating Officer)
By: /s/ George J. Zimmerman
George J. Zimmerman
Treasurer
(Chief Accounting 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:
/s/ L. Harvey Buek Director March 31, 1999
L. Harvey Buek
/s/ Mark D. Burish Director March 31, 1999
Mark D. Burish
/s/ Thomas W. Cosgrove Director March 31, 1999
Thomas W. Cosgrove
/s/ James L. Kemerling Director March 31, 1999
James L. Kemerling
/s/ Thomas J. Kuber Director March 31, 1999
Thomas J. Kuber
/s/ John R. Peterson Director March 31, 1999
John R. Peterson
34
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
To the Shareholders and
Board of Directors
Badger Paper Mills, Inc.
and Subsidiaries
Peshtigo, Wisconsin
Our report on the 1998 and 1997 financial statements of Badger Paper Mills, Inc.
and Subsidiaries is included on page 14 of this Form 10-K. In connection with
our audit of such financial statements, we have also audited the related
financial statement schedule listed in the index on page 31 of this Form 10-K.
The 1996 financial statements and schedules of Badger Paper Mills, Inc. and
Subsidiaries were audited by other auditors.
In our opinion, the 1998 and 1997 financial statement schedule referred to
above, when considered in relation to the basic consolidated financial
statements taken as a whole, presents fairly, in all material respects, the
information required to be included therein.
/s/ Grant Thornton LLP
Appleton, Wisconsin
January 29, 1999
35
<PAGE>
Schedule II - Valuation and Qualifying Accounts and Reserves for the years ended
December 31, 1998, 1997 and 1996 (in thousands)
<TABLE>
<CAPTION>
Column A Column B Column C Column D Column E
Additions
Balance at charged to Balance
beginning costs and Deduc- at end of
Description of year expenses tions year
<S> <C> <C> <C> <C>
Deducted in the balance sheet from
the assets to which they apply:
Allowance for discounts,
doubtful accounts and claims/
allowances:
Year ended December 31, 1998:
Doubtful accounts and
claims/allowances $283 $780 $ 850 (A) $213
Discounts 35 661 665 (B) 31
---- ------ ------ ----
$318 $1,441 $1,515 $244
==== ====== ====== ====
Year ended December 31, 1997:
Doubtful accounts and
claims/allowances $127 $791 $635 (A) $283
Discounts 38 814 817 (B) 35
---- ------ ------ ----
$165 $1,605 $1,452 $318
==== ====== ====== ====
Year ended December 31, 1996:
Doubtful accounts and
claims/allowances $136 $1,249 $1,258 (A) $127
Discounts 54 896 912 (B) 38
---- ------ ------ ----
$190 $2,145 $2,170 $165
==== ======= ======= ====
(A) Write-off of uncollectible accounts and claims for products
(B) Discounts taken and allowed
Column C(2) has been omitted as the answer would be "None."
</TABLE>
36
<PAGE>
Shareholders' Information
Market makers: Stock transfer agent:
Robert W. Baird & Co., Inc. (BARD) Harris Trust & Savings Bank
Herzog, Heine, Geduld, Inc. (HRZG) 111 West Monroe Street
Chicago, Illinois 60690
Stock Price and Dividend Information:
The following table presents high and low sales prices of the Company's Common
Stock in the indicated calendar quarters, as reported on the Nasdaq National
Market System.
Quarterly Price Ranges of Stock:
1998 1997
Quarter High Low High Low
First $8.875 $6.750 $10.250 $7.750
Second $10.750 $6.875 $9.250 $7.250
Third $9.750 $7.250 $11.250 $7.750
Fourth $8.500 $6.500 $11.000 $6.630
Quarterly Dividends Per Share:
Dividend rates are established by the Board of Directors. During the first
quarter 1997, the Board suspended payment of quarterly dividends. The Company's
line of credit maintains certain covenants which limit the Company's ability to
pay dividends. See "Management's Discussion and Analysis -- Liquidity and
Capital Resources -- Capital Resources."
Annual Meeting of Shareholders:
The Annual Meeting of Shareholders of Badger Paper Mills, Inc. will be held at
The Best Western Riverfront Inn, 1821 Riverside Avenue, Marinette, Wisconsin, on
Tuesday, May 11, 1999, at 10:00 a.m.
37
<PAGE>
DIRECTORS AND OFFICERS
Board of Directors:
Thomas J. Kuber - Chairman
President
K&K Warehousing
L. Harvey Buek
LHB - O & M Consulting
Mark D. Burish
President
Hurley, Burish & Milliken, SC
Thomas W. Cosgrove
President
Badger Paper Mills, Inc.
James L. Kemerling
Consultant
John R. Peterson
Managing Director
Cleary Gull Reiland & McDevitt, Inc.
Corporate Officers:
Thomas J. Kuber
Chairman of the Board
Thomas W. Cosgrove
President
Michael J. Bekes
Vice President and COO
Clifton A. Martin
Vice President
Badger Paper Flexible Packaging Div.
Mark C. Neumann
Vice President/Sales
George J. Zimmerman
Treasurer
Mark D. Burish
Secretary
Susan A. Rudolph
Assistant Secretary
38
<PAGE>
EXHIBIT INDEX
BADGER PAPER MILLS, INC.
ANNUAL REPORT ON FORM 10-K
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1998
Exhibit No. Description
(3) (i) Restated Articles of Incorporation, as amended (Incorporated by
reference to Exhibit 3(i) to the Company's Annual Report on Form
10-K for the year ended December 31, 1996).
(ii) By-laws as amended through March 13, 1997 (Incorporated by
reference to Exhibit 3(ii) to the Company's Annual Report on
Form 10-K for the year ended December 31, 1996).
(4) (i) U. S. $12,000,000 Credit Agreement dated January 29, 1999, by and
among the Company, Badger Paper Mills Flexible Packaging Division,
Inc.(formerly known as Plas-Techs, Inc.) and Harris Trust and
Savings Bank, individually and as agent, and the lenders from time
to time party thereto.
(10) Material Contracts:**
(i) Supplemental Executive Retirement Plan dated December 18, 1992
(Incorporated by reference to Exhibit 10 (ii) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1992).
(ii) Executive Employment Agreement dated March 1, 1995, between the
Company and Claude L. Van Hefty (Incorporated by reference to
Exhibit 10(vii) to the Company's Annual Report on Form 10-K for
the year ended December 31, 1994).
(iii)Health Insurance Retirement Benefit Agreement dated January 1,
1996 between the Company and Claude L. Van Hefty (Incorporated by
reference to Exhibit 10(v) to the Company's Annual Report on Form
10-K for the year ended December 31, 1996).
(iv) Director Stock Grant Plan dated July 23, 1997 (Incorporated by
reference to Exhibit 10 to the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 1997).
(v) Employee Resignation and Release Agreement dated as of March 12,
1998 between Badger Paper Mills, Inc. and Claude L. Van Hefty
(Incorporated by reference to Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1998).
(vi) Employee Resignation and Release Agreement dated as of March 12,
1998 between Badger Paper Mills, Inc. and Miles L. Kresl, Jr.
(Incorporated by reference to Exhibit 10.2 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1998).
(23) (i) Consent of Current Independent Public Accountant
(ii) Consent of Former Independent Public Accountant
(27) Financial Data Schedule (EDGAR version only)
(99) Definitive Proxy Statement for 1999 Annual Meeting of ShareholderS
(to be filed with the Commission under Regulation 14A and
incorporated by reference herein to the extent indicated in this
Form 10-K).
**Each of the "material contracts" represents a management compensatory
agreement or arrangement.
================================================================================
U.S. $12,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
by and among
BADGER PAPER MILLS, INC.,
BADGER PAPER MILLS FLEXIBLE PACKAGING DIVISION, INC.
(formerly known as PLASTECHS, INC.)
and
HARRIS TRUST AND SAVINGS BANK
individually and as Agent
and
THE FROM TIME TO TIME LENDERS PARTY HERETO
Dated as of January 29, 1999
================================================================================
<PAGE>
TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. THE CREDIT...............................................1
Section 1.1. Revolving Credit.........................................1
Section 1.2. The Loans................................................2
Section 1.3. Manner of Borrowing Loans................................2
SECTION 2. INTEREST.................................................3
Section 2.1. Options..................................................3
Section 2.2. Domestic Rate Portion....................................3
Section 2.3. LIBOR Portions...........................................3
Section 2.4. Manner of Rate Selection.................................4
Section 2.5. Change of Law............................................4
Section 2.6. Unavailability of Deposits or Inability to
Ascertain the Adjusted LIBOR Rate....................5
Section 2.7. Taxes and Increased Costs................................5
Section 2.8. Funding Indemnity........................................6
Section 2.9. Lending Branch...........................................6
Section 2.10. Discretion of Lenders as to Manner of Funding............6
Section 2.11. Computation of Interest..................................7
Section 2.12. Capital Adequacy.........................................7
SECTION 3. FEES, PAYMENTS, REDUCTIONS, APPLICATIONS
AND NOTATIONS........................................7
Section 3.1. Commitment Fee...........................................7
Section 3.2. Voluntary Prepayments....................................7
Section 3.3. Voluntary Terminations...................................7
Section 3.4. Place and Application....................................8
Section 3.5. Notations and Requests...................................9
SECTION 4. THE COLLATERAL...........................................9
Section 4.1. Collateral...............................................9
Section 4.2. Reaffirmation of Collateral Documents...................10
SECTION 5. REPRESENTATIONS AND WARRANTIES..........................10
Section 5.1. Organization, Power and Compliance......................10
Section 5.2. Subsidiaries............................................11
Section 5.3. Good Title..............................................11
Section 5.4. Regulation U............................................11
Section 5.5. Financial Reports.......................................11
Section 5.6. Litigation and Taxes....................................12
Section 5.7. Affiliates..............................................12
-i-
<PAGE>
Section 5.8. ERISA...................................................12
Section 5.9. Not an Investment Company...............................12
Section 5.10. Compliance with Environmental Laws......................12
Section 5.11. Reliance................................................14
SECTION 6. CONDITIONS PRECEDENT....................................14
Section 6.1. All Advances............................................14
Section 6.2. Initial Advance.........................................15
SECTION 7. COVENANTS...............................................16
Section 7.1. Maintenance of Business and Compliance with Laws........16
Section 7.2. Maintenance of Property.................................16
Section 7.3. Taxes...................................................17
Section 7.4. Insurance...............................................17
Section 7.5. Financial Reports.......................................17
Section 7.6. Fixed Charge Coverage Ratio.............................18
Section 7.7. Consolidated Tangible Net Worth.........................19
Section 7.8. Leverage................................................19
Section 7.9. Year 2000 Assessment....................................19
Section 7.10. Liens...................................................19
Section 7.11. Indebtedness............................................20
Section 7.12. Capital Expenditures....................................21
Section 7.13. Acquisitions, Investments, Loans, Advances
and Guaranties......................................21
Section 7.14. Dividends and Certain Other Restricted Payments.........21
Section 7.15. Mergers, Consolidations, Leases and Sales...............22
Section 7.16. Environmental Laws......................................22
Section 7.17. Disclosure of Environmental Matters.....................22
Section 7.18. Maintenance of Subsidiaries.............................23
Section 7.19. Formation of Subsidiaries...............................23
Section 7.20. ERISA...................................................23
Section 7.21. Change in Fiscal Year...................................23
Section 7.22. Change in the Nature of Business........................23
Section 7.23. Use of Loan Proceeds....................................24
SECTION 8. EVENTS OF DEFAULT AND REMEDIES..........................24
SECTION 9. THE GUARANTEES..........................................26
Section 9.1. The Guarantees..........................................26
Section 9.2. Guarantee Unconditional.................................26
Section 9.3. Discharge Only Upon Payment in Full;
Reinstatement in Certain Circumstances..............27
Section 9.4. Subrogation.............................................27
Section 9.5. Waivers.................................................27
Section 9.6. Stay of Acceleration....................................28
-ii-
<PAGE>
SECTION 10. DEFINITIONS.............................................28
SECTION 11. THE AGENT...............................................35
Section 11.1. Appointment and Authorization...........................35
Section 11.2. Rights as a Lender......................................35
Section 11.3. Standard of Care........................................36
Section 11.4. Costs and Expenses......................................36
Section 11.5. Indemnity...............................................37
SECTION 12. MISCELLANEOUS...........................................37
Section 12.1. Payments Free of Withholding............................37
Section 12.2. Holidays................................................37
Section 12.3. No Waiver, Cumulative Remedies..........................38
Section 12.4. Waivers, Modifications and Amendments...................38
Section 12.5. Costs and Expenses......................................38
Section 12.6. Documentary Taxes.......................................38
Section 12.7. Survival of Representations, Indemnities and
Agent Provisions....................................39
Section 12.8. Construction............................................39
Section 12.9. Accounting Principles...................................39
Section 12.10. Addresses for Notices...................................39
Section 12.11. Headings................................................40
Section 12.12. Severability of Provisions..............................40
Section 12.13. Counterparts............................................40
Section 12.14. Binding Nature and Governing Law........................40
Section 12.15. Entire Understanding....................................40
Section 12.16. Sharing of Set-Off and Information......................40
Section 12.17. Participations..........................................41
Section 12.18. Assignment of Commitments by Lenders....................41
Section 12.19. Set Off.................................................41
Section 12.20. Terms of Collateral Documents not Superseded............41
Section 12.21. PERSONAL JURISDICTION...................................41
SECTION 12.22. WAIVER OF JURY TRIAL....................................42
SECTION 12.23. ADVICE OF COUNSEL.......................................42
Signature Page................................................................43
EXHIBIT A - Revolving Credit Note
EXHIBIT B - The Subsidiaries
EXHIBIT C - Form of Opinion
EXHIBIT D - Compliance Certificate
EXHIBIT E - Existing Investments
EXHIBIT F - Litigation and Governmental Proceedings
-iii-
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
Harris Trust and Savings Bank
Chicago, Illinois
The from time to time lenders party hereto
Ladies and Gentlemen:
The undersigned, Badger Paper Mills, Inc., a Wisconsin corporation
("Badger"), and Badger Paper Mills Flexible Packaging Division, Inc., a
Wisconsin corporation (formerly known as PlasTechs, Inc., a Wisconsin
corporation) ("PlasTechs") (collectively Badger and PlasTechs are hereinafter
sometimes referred to as the "Borrowers" and individually each is sometimes
referred to as a "Borrower"), refer to that certain Credit Agreement dated as of
June 30, 1993, as amended and currently in effect among the Borrowers, NEW
Riverview Holdings, Inc, Harris Trust and Savings Bank, as agent, and the
lenders party thereto (the "Original Credit Agreement"). The Borrowers hereby
request that certain amendments be made to the Original Credit Agreement and,
for the sake of clarity and convenience, that the Original Credit Agreement be
restated in its entirety as so amended. This Amended and Restated Credit
Agreement amends and replaces in its entirety the Original Credit Agreement, and
from the Effective Date all references made to the Original Credit Agreement in
any Loan Document or in any other instrument or document shall, without more, be
deemed to refer to this Amended and Restated Credit Agreement. This Amended and
Restated Credit Agreement shall become effective as of January 29, 1999 (the
"Effective Date"), and supersedes all provisions of the Original Credit
Agreement as of such date, upon the execution of this Amended and Restated
Credit Agreement by each of the parties hereto and the fulfillment of the
conditions precedent contained in Section 6.2 hereof. Harris Trust and Savings
Bank in its individual capacity is referred to herein as "Harris", and in its
capacity as agent for the Banks hereunder is hereinafter referred to as the
"Agent."
SECTION 1. THE CREDIT.
Section 1.1. Revolving Credit. Subject to all of the terms and conditions
hereof, each Lender, by its acceptance hereof, severally agrees to extend a
revolving credit (the "Revolving Credit") to the Borrowers in the amount of its
commitment to extend the Revolving Credit set forth on the applicable signature
page hereof (its "Commitment" and cumulatively for all the Lenders, the
"Commitments") (subject to any reductions thereof pursuant to the terms hereof)
prior to the Termination Date. Such Revolving Credit may be availed of by the
Borrowers in their discretion from time to time, be repaid and used again,
during the period from the date hereof to and including the Termination Date.
The Revolving Credit, subject to all of the terms and conditions hereof, may be
utilized by the Borrowers in the form of Loans, all as more fully
<PAGE>
hereinafter set forth; provided, however, that the aggregate amount of Loans
available to all the Borrowers outstanding at any one time shall not at any time
exceed the Commitments. The obligations of the Lenders hereunder are several and
not joint and no Lender shall under any circumstances be obligated to extend
credit hereunder in excess of its Commitment.
Section 1.2. The Loans. Subject to all of the terms and conditions
hereof, the Revolving Credit may be availed of in the form of loans
(individually a "Loan" and collectively the "Loans"). Each Loan which
constitutes part of the Domestic Rate Position shall be in the amount of
$100,000 or such greater amount which is a multiple of $100,000 and each Loan
which constitutes part of a LIBOR Portion shall be in the amount of $1,000,000
or such greater amount which is a multiple of $100,000. Each Loan shall be made
pro rata by the Lenders in accordance with the amounts of their Commitments. All
Loans made to a Borrower by a Lender shall be evidenced by a Note of such
Borrower (individually a "Note" and collectively the "Notes") payable to the
order of such Lender in the amount of its Commitment, each Note to be in the
form (with appropriate insertions) attached hereto as Exhibit A. Without regard
to the face principal amount of each Note, the actual principal amount at any
time outstanding and owing by such Borrower on account thereof during the period
ending on the Termination Date shall be the sum of all advances then or
theretofore made thereon less all payments actually received thereon during the
same period.
Section 1.3. Manner of Borrowing Loans. (a) The relevant Borrower shall
give the Agent notice (which may be written or oral, but if oral, promptly
confirmed in writing) by 12:00 Noon Chicago time on any Business Day of each
request that any Loan be made to such Borrower under the Commitments specifying
the amount of each such Loan, and the Agent shall notify (which may be written
or oral, but if oral, promptly confirmed in writing) each Lender of its receipt
of each such notice and the contents thereof no later than 2:00 p.m. Chicago
time on the Business Day any Loan constituting part of the Domestic Rate Portion
is to be made and by 2:00 p.m. Chicago time on the Business Day it receives such
a request for any Loan constituting a part of a LIBOR Portion. Each Loan from
each Lender shall initially constitute part of a Domestic Rate Portion except to
the extent the relevant Borrower has otherwise timely elected otherwise as
provided in Section 2 hereof. Not later than 3:00 p.m. Chicago time on the date
specified for any Loan to be made by a Lender hereunder, such Lender shall make
the proceeds of its Loan available to the Agent in Chicago in immediately
available funds. Subject to all of the terms and conditions hereof, the proceeds
of each Loan shall be made available to the relevant Borrower at the office of
the Agent in Chicago upon receipt by the Agent from each Lender of its pro rata
share of such Loan. The Agent shall give prompt telephonic or telecopy notice to
the Borrower and each Lender by like means of the interest rate applicable to
each Eurodollar Loan (but, if such notice is given by telephone, the Agent shall
confirm such rate in writing) promptly after the Agent has made such
determination.
(b) Unless the Agent shall have been notified by a Lender prior to 3:00
p.m. Chicago time on the date a Loan is to be made hereunder that such Lender
does not intend to make its pro rata share of such Loan available to the Agent,
the Agent may assume that such Lender has made such share available to the Agent
on such date and the Agent may in reliance upon such assumption make available
to the relevant Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Agent by such Lender and the Agent
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has made such amount available to the relevant Borrower, the Agent shall be
entitled to receive such amount from such Lender forthwith upon its demand,
together with interest thereon in respect of each day during the period
commencing on the date such amount was made available to the relevant Borrower
and ending on but excluding the date the Agent recovers such amount at a rate
per annum equal to the effective rate charged to the Agent for overnight federal
funds transactions with member banks of the Federal Reserve System for each day
as determined by the Agent (or in the case of a day which is not a Business Day,
then for the preceding day).
SECTION 2. INTEREST.
Section 2.1. Options. Subject to all of the terms and conditions of this
Section 2.1, portions of the principal indebtedness evidenced by the Notes
("Portions") may, at the option of the relevant Borrower, bear interest with
reference to the Domestic Rate (the "Domestic Rate Portion") or with reference
to the Adjusted LIBOR Rate ("LIBOR Portions"), and Portions may be converted
from time to time from one basis to the other. All of the indebtedness evidenced
by the Notes which is not part of a LIBOR Portion shall constitute a single
Domestic Rate Portion. All of the indebtedness evidenced by the Notes which
bears interest with reference to a particular Adjusted LIBOR Rate for a
particular Interest Period shall constitute a single LIBOR Portion. Anything
contained herein to the contrary notwithstanding, there shall not be more than
four LIBOR Portions applicable to the Revolving Credit at any one time and each
Lender shall have a ratable interest in each Portion. The Borrowers promise to
pay interest on each Portion at the rates and times specified in this Section 2.
Section 2.2. Domestic Rate Portion. The Domestic Rate Portion shall bear
interest (which the Borrowers promise to pay at the times herein provided) at
the rate per annum equal to the Domestic Rate as in effect from time to time,
provided that if a Domestic Rate Portion is not paid when due (whether by lapse
of time, acceleration or otherwise), such Portion shall bear interest (which the
Borrowers promise to pay at the times hereinafter provided), whether before or
after judgment, and until payment in full thereof, at the rate per annum
determined by adding 4% to the Domestic Rate as in effect from time to time.
Interest on the Domestic Rate Portions shall be payable monthly on the first day
of each calendar month in each year and at maturity of the Notes and interest
after maturity shall be due and payable upon demand.
Section 2.3. LIBOR Portions. Each LIBOR Portion shall bear interest
(which the Borrowers promise to pay at the times herein provided) for each
Interest Period selected therefor at a rate per annum equal to the sum of the
Adjusted LIBOR Rate for such Interest Period plus the Eurodollar Margin,
provided that if any LIBOR Portion is not paid when due (whether by lapse of
time, acceleration or otherwise), such Portion shall bear interest (which the
Borrowers promise to pay at the times hereinafter provided), whether before or
after judgment, and until payment in full thereof, through the end of the
Interest Period then applicable thereto at the rate per annum determined by
adding 4% to the interest rate otherwise applicable thereto and effective at the
end of such Interest Period, and such LIBOR Portion shall automatically be
converted into and added to the Domestic Rate Portion and shall thereafter bear
interest at the interest rate applicable to the Domestic Rate Portion after
default. Interest on each LIBOR Portion shall be due and payable on the last day
of each Interest Period applicable thereto, and interest after maturity shall be
due and payable upon demand. The relevant Borrower shall notify
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the Agent on or before 12:00 noon Chicago time on the third Business Day
preceding the end of an Interest Period applicable to a LIBOR Portion whether
such LIBOR Portion is to continue as a LIBOR Portion, in which event the
relevant Borrower shall notify the Agent of the new Interest Period selected
therefor, and in the event the relevant Borrower shall fail to so notify the
Agent, such LIBOR Portion shall automatically be converted into and added to the
Domestic Rate Portion as of and on the last day of such Interest Period. The
Agent shall notify each Lender of each notice received from a Borrower pursuant
to the foregoing provisions no later than 2:00 p.m. Chicago time. Anything
contained herein to the contrary notwithstanding, the obligation of the Lenders
to create, continue or effect by conversion any LIBOR Portion shall be
conditioned upon the fact that at the time no Default or Event of Default shall
have occurred and be continuing. Each LIBOR Portion shall be in the amount of
$1,000,000 or such greater amount which is an integral multiple of $100,000.
Section 2.4. Manner of Rate Selection. The relevant Borrower shall notify
the Agent by 12:00 Noon Chicago time at least three Business Days prior to the
date upon which it requests that any LIBOR Portion be created or that any part
of the Domestic Rate Portion be converted into a LIBOR Portion (such notice to
specify in each instance the amount thereof and the Interest Period selected
therefor) and the Agent shall advise each Lender of each such notice by 2:00
p.m. Chicago time on the same Business Day it receives such notice. If any
request is made to convert a LIBOR Portion into the Domestic Rate Portion, such
conversion shall only be made so as to become effective as of the last day of
the Interest Period applicable thereto. All requests for the creation,
continuance or conversion of Portions under this Agreement shall be irrevocable.
Such requests may be written or oral and the Agent is hereby authorized to honor
telephonic requests for creations, continuances and conversions received by it
from any person the Agent reasonably believes to be a person authorized to act
on behalf of such Borrower hereunder, the Borrowers hereby indemnifying the
Agent and the Lenders from any liability or loss ensuing from so acting.
Section 2.5. Change of Law. Notwithstanding any other provisions of this
Agreement or the Notes, if at any time a Lender shall determine in good faith
that any change in applicable laws, treaties or regulations or in the
interpretation thereof makes it unlawful for such Lender to create or continue
to maintain LIBOR Portions, it shall promptly so notify the Agent (which shall
in turn promptly notify the Borrowers and the other Lenders) and the obligation
of such Lender to create, continue or maintain any LIBOR Portion under this
Agreement shall terminate until it is no longer unlawful for such Lender to
create, continue or maintain LIBOR Portions. The Borrowers on demand, shall, if
the continued maintenance of a LIBOR Portion is unlawful, thereupon prepay the
outstanding principal amount of the LIBOR Portions, together with all interest
accrued thereon and all other amounts payable to the affected Lenders with
respect thereto under this Agreement, provided, however, that the Borrowers may
instead elect to convert the principal amount of the affected LIBOR Portion into
the Domestic Rate Portion, subject to the terms and conditions of this
Agreement. If the Lender or Lenders affected by a change in law or regulation
can avoid the effect of such change by changing its lending or funding branch it
shall do so, provided that the same can be accomplished without disadvantage to
it.
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Section 2.6. Unavailability of Deposits or Inability to Ascertain the
Adjusted LIBOR Rate. Notwithstanding any other provision of this Agreement or
the Notes, if prior to the commencement of any Interest Period, the Lenders
shall determine that United States dollar deposits in the amount of any LIBOR
Portion scheduled to be outstanding during such Interest Period are not readily
available to such Lenders in the offshore interbank market after reasonable
effort to determine whether such deposits are so available, the Agent shall
promptly give notice thereof to the Borrowers and each other Lender and the
obligations of the Lenders to create, continue or effect by conversion any LIBOR
Portion in such amount and for such Interest Period shall terminate until United
States dollar deposits in such amount and for the Interest Period selected by a
Borrower shall again be readily available in the offshore interbank market.
Section 2.7. Taxes and Increased Costs. With respect to the LIBOR
Portions, if any Lender shall determine in good faith that any change in any
applicable law, treaty, regulation or guideline (including, without limitation,
Regulation D of the Board of Governors of the Federal Reserve System) or any new
law, treaty, regulation or guideline, or any interpretation of any of the
foregoing by any governmental authority charged with the administration thereof
or any central bank or other fiscal, monetary or other authority having
jurisdiction over such Lender or its lending branch or the Portions contemplated
by this Agreement (whether or not having the force of law) shall:
(i) impose, increase, or deem applicable any reserve, special
deposit or similar requirement against assets held by, or deposits in or
for the account of, or loans by, or any other acquisition of funds or
disbursements by, such Lender which is not in any instance already
accounted for in computing the Adjusted LIBOR Rate;
(ii) subject such Lender, the LIBOR Portions or a Note to the
extent it evidences such Portions, to any tax (including, without
limitation, any United States interest equalization tax or similar tax
however named applicable to the acquisition or holding of debt
obligations and any interest or penalties with respect thereto), duty,
charge, stamp tax, fee, deduction or withholding in respect of this
Agreement, any LIBOR Portion or a Note to the extent it evidences such a
Portion, except such taxes as may be measured by the overall net income
or gross receipts of such Lender or its lending branches and imposed by
the jurisdiction, or any political subdivision or taxing authority
thereof, in which such Lender's principal executive office or its lending
branch is located;
(iii) change the basis of taxation of payments of principal and
interest due from the Borrowers to such Lender hereunder or under a Note
to the extent it evidences any LIBOR Portion (other than by a change in
taxation of the overall net income or gross receipts of such Lender); or
(iv) impose on such Lender any penalty with respect to the
foregoing or any other condition regarding this Agreement, its
disbursement, any LIBOR Portion or a Note to the extent it evidences
any LIBOR Portion;
and such Lender shall determine that the result of any of the foregoing is to
increase the cost (whether by incurring a cost or adding to a cost) to such
Lender of creating or maintaining any
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LIBOR Portion hereunder or to reduce the amount of principal or interest
received or receivable by such Lender (without benefit of, or credit for, any
prorations, exemption, credits or other offsets available under any such laws,
treaties, regulations, guidelines or interpretations thereof), then the
Borrowers shall pay on demand to the Agent for the account of such Lender from
time to time as specified by such Lender such additional amounts as such Lender
shall reasonably determine are sufficient to compensate and indemnify it for
such increased cost or reduced amount. If a Lender makes such a claim for
compensation, it shall provide to the Borrowers a certificate setting forth the
computation of the increased cost or reduced amount as a result of any event
mentioned herein and such certificate shall be deemed prima facie correct. If a
Lender can avoid the effect of any such change by changing its lending or
funding branch, it shall do so provided that it will not, in the judgment of
such Lender, be otherwise disadvantageous to such Lender.
Section 2.8. Funding Indemnity. In the event any Lender shall incur any
loss, cost or expense (including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired or contracted to be acquired by such Lender to fund or maintain its
part of any LIBOR Portion or the relending or reinvesting of such deposits or
other funds or amounts paid or prepaid to such Lender), as a result of:
(i) any payment of a LIBOR Portion on a date other than the last
day of the then applicable Interest Period for any reason, whether before
or after default, and whether or not such payment is required by any
provisions of the Agreement; or
(ii) any failure by any Borrower to create, borrow, continue or
effect by conversion a LIBOR Portion on the date specified in a notice
given pursuant to this Agreement;
then upon the demand of such Lender, the relevant Borrower shall pay to the
Agent for the account of such Lender such amount as will reimburse such Lender
for such loss, cost or expense. If a Lender requests such a reimbursement, it
shall provide the relevant Borrower with a certificate setting forth the
computation of the loss, cost or expense giving rise to the request for
reimbursement and such certificate shall be deemed prima facie correct.
Section 2.9. Lending Branch. Each Lender may, at its option, elect to
make, fund or maintain its loans hereunder at the branches or offices specified
on the signature pages hereof or at such other of its branches or offices as
such Lender may from time to time elect.
Section 2.10. Discretion of Lenders as to Manner of Funding.
Notwithstanding any provision of this Agreement to the contrary, each Lender
shall be entitled to fund and maintain its funding of all or any part of its
share of its Notes in any manner it sees fit, it being understood, however, that
for the purposes of this Agreement all determinations hereunder (including
determinations under Sections 2.6, 2.7 and 2.8 hereof) shall be made as if each
such Lender had actually funded and maintained each LIBOR Portion during each
Interest Period applicable thereto through the purchase of deposits in the
offshore interbank market in the amount of its share of such LIBOR Portion,
having a maturity corresponding to such Interest Period and bearing an interest
rate equal to LIBOR for such Interest Period.
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Section 2.11. Computation of Interest. All interest on the Notes and
unless otherwise stated herein, all fees, charges and commissions due hereunder,
shall be computed on the basis of a year of 360 days for the actual number of
days elapsed.
Section 2.12. Capital Adequacy. If any Lender shall determine that the
adoption, after the date hereof, of any applicable law, rule, regulation,
guideline or order regarding capital adequacy, or any change in any existing
law, rule, regulation, guideline or order, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof or
compliance by such Lender (or its lending office) with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's capital as a consequence of its
obligations hereunder or credit extended by it hereunder to a level below that
which such Lender could have achieved but for such law, rule, regulation,
guideline, order, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time as specified by such Lender the Borrowers
shall pay such additional amount or amounts as will compensate such Lender for
such reduction. A certificate of any Lender claiming compensation under this
Section 2.12 and setting forth the additional amount or amounts to be paid to it
hereunder in reasonable detail shall be prima facie evidence thereof. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
SECTION 3. FEES, PAYMENTS, REDUCTIONS, APPLICATIONS AND NOTATIONS.
Section 3.1. Commitment Fee. For the period from the date hereof to and
including the Termination Date, the Borrowers shall pay to the Agent for the
account of the Lenders a commitment fee at the rate of 1/2 of 1% per annum
(computed on the basis of a year of 360 days for the actual number of days
elapsed) on the average daily unused amount of the Commitments hereunder. Such
fee shall be payable quarterly in arrears on the last day of each March, June,
September and December in each year (commencing March 31, 1999) and on the
Termination Date, unless the Commitments are terminated in whole on an earlier
date, in which event the commitment fee for the period to but not including the
date of such termination in whole shall be paid on the date of such termination.
Section 3.2. Voluntary Prepayments. The Borrowers shall have the
privilege of prepaying the Notes in whole or in part (but if in part then in a
minimum amount of $100,000 and in an amount such that the minimum amount
required pursuant to Section 1.2 hereof remains outstanding) at any time upon
one Business Day's prior notice to the Agent (such notices, if received
subsequent to 12:00 Noon Chicago time on a given day, to be treated as though
received at the opening of business on the next Business Day), which shall
promptly so notify the Lenders, by paying to the Agent for the account of the
Lenders the principal amount to be prepaid and (i) if such prepayment prepays a
Note in full, accrued interest thereon to the date fixed for prepayment and (ii)
any amount due the Lenders under Section 2.8 hereof.
Section 3.3. Voluntary Terminations. The Borrowers shall have the
privilege at any time, upon five (5) Business Days' prior written joint notice
to the Agent (which shall promptly
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notify the Lenders) to ratably terminate the Commitments in whole or in part
(but if in part then in a minimum amount of $1,000,000 or an integral multiple
thereof). Not later than the termination date stated in such notice, there shall
be made such payments to the Agent as may be necessary to reduce the sum of the
aggregate outstanding principal amounts of the Notes to the amount to which the
Commitments have been reduced, together with (x) any amount due under Section
2.8 hereof and (y) in the case of a termination in whole, all interest, fees and
other amounts due on the Obligations. No termination of the Commitments may be
reinstated.
Section 3.4. Place and Application. All payments of principal, interest
and fees shall be made to the Agent at its office 111 West Monroe Street,
Chicago, Illinois (or at such other place as the Agent may specify) in
immediately available and freely transferable funds at the place of payment. All
such payments shall be made without setoff or counterclaim and without reduction
for, and free from, any and all present or future taxes, levies, imposts,
duties, fees, charges, deductions, withholdings, restrictions or conditions of
any nature imposed by any government or political subdivision or taxing
authority thereof. Payments received by the Agent after 12:00 Noon Chicago time
shall be deemed received as of the opening of business on the next Business Day.
Badger hereby authorizes the Agent, if and to the extent any payment by any
Borrower is not made when due under this Agreement or under any of the Notes, to
charge from time to time against Badger's account number 182-080-2 with Harris
Trust and Savings Bank any amount so due. Except as herein provided, all
payments shall be received by the Agent for the ratable account of the Lenders
and shall be promptly distributed by the Agent ratably to the Lenders. Unless
the relevant Borrower otherwise directs, payments shall be deemed first applied
to the Domestic Rate Portion until payment in full thereof, with any balance
applied to the applicable LIBOR Portions in the order in which their Interest
Periods expire. Any amount prepaid on the Notes may, subject to all of the terms
and conditions hereof, be borrowed, repaid and borrowed again. All payments
(whether voluntary or required) shall be accompanied by any amount due the
Lenders under Section 2.8 hereof, but no acceptance of such a payment without
requiring payment of amounts due under Section 2.8 shall preclude a later demand
by the Lenders for any amount due them under Section 2.8 in respect of such
payment.
Anything contained herein to the contrary notwithstanding, all payments
and collections received in respect of the indebtedness evidenced by the Notes
and all proceeds of the Collateral received, in each instance, by the Agent or
any of the Lenders after the occurrence of an Event of Default shall be remitted
to the Agent and distributed as follows:
(a) first, to the payment of any reasonable outstanding costs and
expenses incurred by the Agent in monitoring, verifying, protecting,
preserving or enforcing the liens on the Collateral or in protecting,
preserving or enforcing rights under this Agreement, the Collateral
Documents, and the Notes and in any event including all reasonable costs
and expenses of a character which the Borrowers have agreed to pay under
Section 11.4 hereof (such funds to be retained by the Agent for its own
account unless it has previously been reimbursed for such costs and
expenses by the Lenders, in which event such amounts shall be remitted to
the Lenders to reimburse them for payments theretofore made to the
Agent);
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(b) second, to the payment of any outstanding interest or other
fees or amounts due under the Notes or this Agreement other than for
principal, ratably as among the Agent and the Lenders in accord with the
amount of such interest and other fees or amounts owing each; provided
that any proceeds derived from the sale or other disposition of the (i)
Oconto Falls Facility shall first be applied to reduce the indebtedness
of the Oconto Falls Financing including the repayment to any draw on any
letter of credit issued to support the Oconto Falls Financing, and (ii)
Peshtigo Facility shall first be applied to reduce the indebtedness of
the Peshtigo financing including the repayment of any draw on any letter
of credit issued to support the Peshtigo Financing;
(c) third, to the payment of the principal of the Notes, the
aggregate amount paid to the Lenders to be allocated pro rata as among
the Lenders in accord with the then respective aggregate unpaid principal
balances of the Notes;
(d) fourth, to the Agent and the Lenders ratably in accord with
the amounts of any other indebtedness, obligations or liabilities of the
Borrowers owing to each of them and secured by the Collateral Documents
(other than those described in clause (e) below) unless and until all
such indebtedness, obligations and liabilities have been fully paid and
satisfied; and
(e) fifth, to the Borrowers or whoever may be lawfully entitled
thereto.
Section 3.5. Notations and Requests. All advances made against the Notes,
the status of all amounts evidenced by the Notes as constituting part of the
Domestic Rate Portion or a LIBOR Portion and the rates of interest and Interest
Periods applicable to such Portions shall be recorded by the Lenders on their
books or, at their option in any instance, endorsed on the reverse side of the
Notes and the unpaid principal balances and status, rates and Interest Periods
so recorded or endorsed by the Lenders shall be prima facie evidence in any
court or other proceeding brought to enforce the Notes of the principal amount
remaining unpaid thereon, the status of the borrowings evidenced thereby and the
interest rates and Interest Periods applicable thereto. Prior to any negotiation
of any Note, the Lender holding such Note shall endorse thereon the status of
all amounts evidenced thereby as constituting part of the Domestic Rate Portion
or LIBOR Portion and the rates of interest and the Interest Periods applicable
thereto.
SECTION 4. THE COLLATERAL.
Section 4.1. Collateral. The Notes and the other Obligations shall be
secured by (i) valid and perfected first liens on all inventory, accounts
receivable, general intangibles, instruments, machinery and equipment of Badger,
PlasTechs and Peshtigo Power, (ii) the real property and fixtures of PlasTechs
in Oconto Falls, Wisconsin and (iii) investments of Badger consisting of
Marketable Securities (the foregoing being hereinafter referred to collectively
as the "Collateral"), and each Borrower agrees that it will from time to time at
the request of the Agent or any Lender execute and deliver, and cause its
Subsidiaries to execute and deliver, such documents and do such acts and things
as the Agent or any Lender may reasonably request in order to provide for or
perfect such liens.
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Section 4.2. Reaffirmation of Collateral Documents. The Borrowers have
heretofore executed and delivered to the Agent the Collateral Documents. The
Borrowers hereby agree that notwithstanding the execution and delivery of this
Agreement, each of the Collateral Documents shall be and remain in full force
and effect and that any rights and remedies of the Agent and the Lenders
thereunder, obligations of the Borrowers thereunder and any liens or security
interests created or provided for thereunder shall be and remain in full force
and effect and shall not be affected, impaired or discharged thereby and shall
secure all of its indebtedness, obligations and liabilities to the Agent and the
Lenders under the Original Credit Agreement as amended and restated hereby.
Nothing herein contained shall in any manner affect or impair the priority of
the liens and security interests created and provided for by the Collateral
Documents as to the indebtedness which would be secured thereby prior to giving
effect to this Amendment. Without limiting the foregoing, each of the Borrowers
acknowledges and agrees that all of its indebtedness, obligations and
liabilities to the Agent and the Lenders pursuant to the Original Credit
Agreement as amended and restated hereby, including without limitation, all
principal of and interest on the Notes (as defined in the Original Credit
Agreement as amended and restated hereby) and Reimbursement Obligations, whether
presently existing or hereafter arising, shall constitute "Secured Obligations"
as defined in each of the Security Agreements and shall be secured by, and
entitled to all of the benefits of, the liens and security interest created and
provided for under the Security Agreements. In furtherance of the foregoing,
each Borrower hereby grants to the Agent for the benefit of the Lenders, and
hereby agrees that the Agent for the benefit of the Lenders shall continue to
have a continuing security interest in, all and singular of the Borrowers'
receivables, general intangibles, accounts receivable, machinery, equipment,
inventory, books and records, documents, accessions and additions to all of the
foregoing and all products and proceeds of each of the foregoing, and all
proceeds or collection of any of the foregoing and all of the other collateral
described or referred to in the granting clauses of the Security Agreements,
each and all of which granting clauses are hereby incorporated by reference
herein in their entirety. The foregoing grant shall be in addition to and
supplemental of and not in substitution for the grant by each of the Borrowers
under their respective Security Agreements, and shall not affect or impair the
lien or priority of the Security Agreements in the collateral subject thereto or
the indebtedness secured thereby.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
Each Borrower represents and warrants to the Lenders as follows:
Section 5.1. Organization, Power and Compliance. Each Borrower is duly
organized and existing under the laws of the state of its incorporation, is duly
licensed or qualified to do business in each state where any of the property
subject to the lien of the Collateral Documents is located or where a lien
thereon is required to be perfected or enforced, or where the failure to be so
licensed or qualified would have a material adverse effect on the business,
operations or assets of such Borrower or any Subsidiary and has all corporate
power, and licenses, franchises and other governmental authorizations and
approvals necessary to carry on its present business. Each Borrower has full
right, power and authority to enter into this Agreement, to make the borrowings
herein provided for, to issue its Notes in evidence thereof, to execute and
deliver the
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Collateral Documents executed by it, to perform each and all of the matters and
things herein and therein provided for, and to carry on its present business.
This Agreement, the Notes and such Collateral Documents have been duly
authorized, executed and delivered by such Borrower and constitute valid and
binding obligations of such Borrower enforceable in accordance with their terms.
This Agreement, the Notes and such Collateral Documents do not, nor will the
performance or observance by a Borrower of any of the matters and things herein
or therein provided for, contravene any provision of law or any charter or
by-law provision of such Borrower or any covenant, indenture or agreement of or
affecting a Borrower or any of its properties.
Section 5.2. Subsidiaries. Each Subsidiary is duly organized and existing
under the laws of the jurisdiction in which it was incorporated, has full and
adequate corporate power and licenses and franchises necessary to carry on its
business as now conducted and is duly licensed or qualified in all jurisdictions
where the failure to be so qualified would have a material adverse effect on its
business, operations or assets. All of the outstanding capital stock of all of
the Subsidiaries has been validly issued, is fully paid and nonassessable and,
to the extent and in the percentages set forth in Exhibit B, is, as of the date
hereof, owned by Badger or one or more of the Subsidiaries free and clear of all
liens, security interest, charges and encumbrances. As of the date hereof, there
are outstanding no commitments or other obligations of any Subsidiary to issue,
and no options, warrants or other rights of any individual or entity to acquire,
any shares of any class of capital stock of any Subsidiary. All present
Subsidiaries are listed on Exhibit B.
Section 5.3. Good Title. As of the date hereof, each Borrower has good
and defensible title to its respective assets as reflected on the consolidated
balance sheet of the Borrowers and the Subsidiaries dated as of December 31,
1997 (except for sales by the Borrowers and such Subsidiaries in the ordinary
course of their respective businesses), subject to no liens or encumbrances
other than such thereof as are permitted by Section 7.10 hereof.
Section 5.4. Regulation U. No Borrower is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stocks (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System), and no part of the proceeds of any Loan hereunder will be used to
purchase or carry any margin stock or extend credit to others for the purpose of
purchasing or carrying any margin stock.
Section 5.5. Financial Reports. The audit report of Badger for the year
ended December 31, 1997, including a consolidated and consolidating balance
sheets as of December 31, 1997 and a consolidated statement of profit and loss
for the 12 months ended said date, prepared by Grant Thornton LLP, and the
interim consolidated and consolidating balance sheets of Badger and the
Subsidiaries as at September 30, 1998 and consolidated and consolidating
statements of profit and loss for the nine months then ended prepared by Badger
and heretofore furnished to the Lenders, all as heretofore presented to the
Lenders, fairly present the financial condition of Badger and the Subsidiaries
as at said dates and the results of operations for the periods covered thereby.
Since December 31, 1997, there have been no material adverse changes in the
condition, financial or otherwise, or business prospects of Badger and the
Subsidiaries taken as a whole. As of the date hereof, Badger and the
Subsidiaries have
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no known contingent liabilities which are material to Badger or any Subsidiary
other than as indicated on said financial statements.
Section 5.6. Litigation and Taxes. Except as set forth on Exhibit F
hereto, there is no litigation or governmental proceeding pending, nor to the
best knowledge of any Borrower threatened, against any Borrower or any
Subsidiary which if adversely determined would result in any material adverse
change in the financial condition or properties, business or operations of any
Borrower or any Subsidiary. The federal income tax returns applicable to the
Borrowers and any Subsidiaries for the tax year ended December 31, 1994, and for
all tax years ended prior to said date have been examined and any additional
assessments in connection with such years have been paid and no material
objections to or controversies in respect of the United States federal income
tax returns of the Borrowers or any Subsidiary are pending or, to the best
knowledge of the Borrowers threatened. No authorization, consent, license,
exemption of filing or registration with any court or governmental department,
agency or instrumentality, is necessary to the valid execution and delivery of,
or presently necessary to the performance by any Borrower and the Subsidiaries
of, this Agreement, the Notes and the Collateral Documents, except for such
thereof as have been obtained and are in full force and effect.
Section 5.7. Affiliates. No Borrower or any Subsidiary is a party to any
contracts or agreements with any of its Affiliates on terms and conditions which
are less favorable to such Borrower or such Subsidiary than would be usual and
customary in similar contracts or agreements between persons, firms or
corporations not affiliated with each other.
Section 5.8. ERISA. Each Borrower and ERISA Affiliate are in compliance
in all material respects with the IRC and ERISA to the extent applicable to them
and have received no notice to the contrary from the Internal Revenue Service,
the Department of Labor or the Pension Benefit Guaranty Corporation ("PBGC"); as
of December 31, 1997, the liability of each Borrower and ERISA Affiliate to the
PBGC in respect of unfunded employee benefit plan liabilities would not have
been in excess of $100,000 if all employee benefit plans covering any officers
or employees of the Borrowers and ERISA Affiliates had been terminated as of
such date. No Borrower nor any ERISA Affiliate has (i) failed to make a required
contribution or payment of a "multiemployer plan" (as defined in Section
4001(a)(3) of ERISA) or (ii) made a complete or partial withdrawal under
Sections 4203 or 4205 of ERISA from a multiemployer plan. No Borrower nor any
ERISA Affiliate maintains or contributes to any employee welfare benefit plan
within the meaning of Section 3(1) of ERISA which provides benefits to employees
after termination of employment (other than as required under Section 601 of
ERISA) which could result in a material obligation to pay money.
Section 5.9. Not an Investment Company. No Borrower is an "investment
company" nor a company "controlled" by an "investment company organized or
otherwise created under the laws of the United States or of a State" within the
meaning of the Investment Company Act of 1940, as amended.
Section 5.10. Compliance with Environmental Laws. (a) To the best of the
Borrowers' knowledge, the business and operation of the Borrowers and their
Subsidiaries comply in all material respects with all applicable federal, state,
regional, county and local laws, statutes, rules,
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regulations and ordinances relating to public health, safety or the environment,
including, without limitation, relating to releases, discharges, emissions or
disposals to air, water, land or groundwater, to the withdrawal or use of
groundwater, to the use, handling or disposal of polychlorinated biphenyls
(PCB's), asbestos or urea formaldehyde, to the treatment, storage, disposal or
management of hazardous substances (including, without limitation, petroleum,
its derivatives, by-products or other hydrocarbons), to exposure to toxic,
hazardous or other controlled, prohibited or regulated substances, to the
transportation, storage, disposal, management or release of gaseous or liquid
substances, and any regulation, order, injunction, judgment, declaration, notice
or demand issued thereunder (all of the foregoing being collectively
"Environmental Laws"), except to the extent that such noncompliance could not be
reasonably expected to have a material adverse effect on the business,
operations, properties, assets or condition (financial or otherwise) of the
Borrowers and Subsidiaries.
(b) Except as specifically disclosed pursuant to Section 7.17 below,
within the past five years the Borrowers and their Subsidiaries have not given,
nor have they been required to give, nor have they received, any written notice,
letter, citation, order, warning, complaint, inquiry, claim or demand (hereafter
"Demand") that: (i) any Borrower or any Subsidiary has violated, or is about to
violate, any Environmental Law; (ii) there has been a release, or there is a
threat of release, of a non-diminimus quantity of hazardous substances
(including, without limitation, petroleum, its by-products or other
hydrocarbons) from any Borrower's or any Subsidiary's property, facilities,
equipment or vehicles or previously owned or leased properties; (iii) any
Borrower or any Subsidiary may be or is liable, in whole or in part, for
material costs of cleaning up, remediating or responding to a release of
hazardous substances (including, without limitation, petroleum, its derivatives,
by-products or other hydrocarbons); (iv) any Borrower's or any Subsidiary's
property or assets or previously owned or leased properties or assets are
subject to a lien in favor of any governmental entity for any liability, costs
or damages, under any federal, state or local environmental law, rule or
regulation arising from, or costs incurred by such governmental entity in
response to, a release of a hazardous substance (including, without limitation,
petroleum, its derivatives, by-products or other hydrocarbons).
(c) Except as disclosed pursuant to Section 7.17 below, no property now
or previously owned or leased by any Borrower or any Subsidiary is listed or
proposed for listing on the National Priorities List pursuant to CERCLA, on the
or on any similar state list of sites requiring investigation or clean-up.
(d) There are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or previously
owned or leased by any Borrower or any Subsidiary that, singly or in the
aggregate, have, or may reasonably be expected to have, a material adverse
effect on the financial condition, operation, assets, business, properties or
prospects of the Borrowers and their Subsidiaries.
(e) No Borrower nor any Subsidiary has directly transported or directly
arranged for the transportation of any hazardous substances to any location
which is listed or proposed for listing on the National Priorities List pursuant
to CERCLA, on the CERCLIS or on any similar state list or which is the subject
of federal, state or local enforcement actions or other investigations which may
reasonably be expected to lead to material claims against any Borrower or any
Subsidiary
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for any remedial work, damage to natural resources or personal injury, including
claims under CERCLA.
(f) There are no polychlorinated biphenyls or friable asbestos present at
any property now or previously owned or leased by any Borrower or any Subsidiary
that, singly or in the aggregate, have, or may reasonably be expected to have, a
materially adverse effect on the financial condition, operations, assets,
business, properties or prospects of any Borrower Subsidiaries.
(g) After due inquiry, to the best of the Borrowers' knowledge, no
conditions exist at, on or under any property now or previously owned or leased
by any Borrower or any Subsidiary which could reasonably be expected to give
rise to any material liability under any Environmental Law.
Section 5.11. Reliance. No written information, exhibit or report
furnished by or on behalf of any Borrower to the Agent or any Lender in
connection with this Agreement, the Notes or the Collateral Documents contains
any material misstatement of fact or, when taken as a whole, omits to state a
material fact or any fact necessary to make the statements contained therein not
misleading.
Section 5.12. Year 2000 Compliance. Each Borrower has conducted a
comprehensive review and assessment of the computer applications of such
Borrower and its Subsidiaries and has made inquiry of their material suppliers,
service vendors (including data processors) and customers, with respect to any
defect in computer software, data bases, hardware, controls and peripherals
related to the occurrence of the year 2000 or the use at any time of any date
which is before, on and after December 31, 1999, in connection therewith. Based
on the foregoing review, assessment and inquiry, each Borrower believes that no
such defect could reasonably be expected to have a material adverse effect on
the business or financial affairs of such Borrower (or of the Borrowers and the
Subsidiaries taken on a consolidated basis).
SECTION 6. CONDITIONS PRECEDENT.
Section 6.1. All Advances. The obligation of the Lenders to make any Loan
under the Revolving Credit (including the first such accommodation) shall also
be subject to the conditions precedent that as of the time of the making of each
Loan under the Revolving Credit:
(a) each of the representations and warranties set forth herein or
in the Collateral Documents shall be and remain true and correct as of
said time in all material respects, except that the representations and
warranties made in Section 5.5 hereof shall be deemed to refer to the
most recent audited and unaudited financial statements delivered to the
Lenders pursuant to Section 7.5 hereof; and
(b) the Borrowers and the Subsidiaries shall be in compliance with
all of the terms and conditions hereof and of the Collateral Documents,
and no Default or Event of Default shall have occurred and be continuing.
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Any request made by a Borrower to the Agent for a Loan hereunder shall be deemed
to constitute a representation and warranty that the foregoing statements are
true and correct.
Section 6.2. Initial Advance. At or prior to the time of the initial Loan
under the Revolving Credit, the following conditions precedent shall also have
been satisfied:
(a) the Agent shall have received the following for the account of
the Lenders (each to be properly executed and completed) and the same
shall have been approved as to form and substance by the Lenders:
(i) the Notes;
(ii) copies (executed or certified as may be appropriate)
for each Lender of all legal documents or proceedings taken in
connection with the execution and delivery of this Agreement, the
Notes and the Collateral Documents;
(iii) the Peshtigo Security Agreement and any financing
statements requested by the Agent in connection therewith;
(iv) date down endorsement to mortgagee's policies of title
insurance (or binding commitments therefor) for those Collateral
Documents creating liens on the real property of PlasTechs in
Oconto Falls, Wisconsin confirming the liens thereon in amounts
satisfactory to the Lenders to be valid first liens subject to no
defects or objections which are unacceptable to the Lenders,
together with such direct access reinsurance agreements and
endorsements (including without limitation a revolving credit
endorsement and contiguity and zoning endorsements) as the Agent
may require;
(v) evidence of the maintenance of insurance by the
Borrowers as required hereby or by the Collateral Documents;
(b) the liens of the Collateral Documents shall have been duly
perfected in the manner required by law so as to be effective against all
creditors of and purchasers from the relevant Borrower;
(c) the Agent and the Lenders shall have received the initial fees
called for hereby;
(d) the Lenders shall have received such valuations and
certifications as they may require in order to satisfy themselves as to
the value of the Collateral, the financial condition of the Borrowers and
the lack of material environmental or other contingent liabilities of the
Borrowers;
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(e) the reimbursement agreements for each of the Tax-exempt
Financings shall have been amended and restated pursuant to written
agreements in form and substance satisfactory to the Lenders; and
(f) all legal matters incident to the transactions contemplated
hereby shall be reasonably acceptable to the Lenders and their counsel
and the Agent shall have received for the account of the Lenders the
favorable written opinion of acceptable counsel to the Borrowers in
substantially the form attached hereto as Exhibit C.
SECTION 7. COVENANTS.
Each Borrower agrees that, so long as any credit is available to or in
use by or any amount is owing by any Borrower hereunder, except to the extent
compliance in any case or cases is waived in writing by the Lenders:
Section 7.1. Maintenance of Business and Compliance with Laws. Each
Borrower will preserve and keep in force and effect, and cause each Subsidiary
to preserve and keep in force and effect, its corporate existence and all
material leases, licenses and permits necessary to the proper conduct of its and
their respective businesses. Each Borrower shall, and shall cause each
Subsidiary to, comply with all laws, orders, regulations and ordinances of any
federal, foreign, state or local governmental authority (including, without
limitation, all laws regarding public health or welfare, environmental
protection, water or air pollution, composition of products, underground storage
tanks, toxic substances or chemicals, solid and special wastes, hazardous
wastes, substances materials or chemicals, waste, used, or recycled oil,
asbestos, occupational health and safety, nuisances, trespass and negligence),
except for such laws, orders, regulations and ordinances the violation of which
would not, in the aggregate, have a material adverse effect on any Borrower or
such Subsidiary's financial condition, results of operations or business or any
Borrower or such Subsidiary's ability to perform its obligations hereunder or in
connection herewith. The Lenders shall not assume or be deemed to assume any
responsibility, liability or obligations with respect to compliance with any
federal, state, or local environmental law, rule, regulation, order, permit,
license, ordinance, judgment or decree; provided, however, that in the event of
the imposition or assumption for any reason whatsoever of any such
responsibility, liability or obligation (collectively, an "environmental
liability"), each Borrower agrees to indemnify and hold harmless the Lenders
from and against any and all claims, liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever, including without limitation, attorneys' and experts'
fees, which may be imposed on, incurred by or asserted against any Lender in any
way relating to or arising from any such environmental liability.
Section 7.2. Maintenance of Property. Each Borrower will maintain,
preserve and keep its plant, properties and equipment in reasonable repair,
working order and condition in all material respects (except for equipment or
other property no longer used or useful in the conduct of its business or the
business of the Subsidiaries) and will from time to time make all needful and
proper repairs, renewals, replacements, additions and betterments thereto so
that at all times the overall efficiency thereof shall be preserved and
maintained and will cause each Subsidiary so to do in respect of its properties.
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Section 7.3. Taxes. Each Borrower will duly pay and discharge, and will
cause each Subsidiary to duly pay and discharge, all taxes, rates, assessments,
fees and governmental charges upon or against such Borrower or Subsidiary or
against their respective properties, in each case before the same become
delinquent and before penalties accrue thereon, unless and to the extent that
the same are being contested in good faith and by appropriate proceedings which
prevent enforcement of the matter under contest.
Section 7.4. Insurance. Each Borrower will insure and keep insured, and
will cause each Subsidiary to insure and keep insured, with good and responsible
insurance companies, all insurable property owned by it which is of a character
usually insured by companies similarly situated and in amounts usually insured
by companies similarly situated and operating like properties; and each Borrower
will insure, and cause each Subsidiary to insure, such other hazards and risks
(including employers' and public and product liability risks) with good and
responsible insurance companies as and to the extent usually insured by
companies similarly situated and conducting similar businesses. Each Borrower
will upon request of the Agent furnish a certificate setting forth in summary
form the nature and extent of the insurance maintained pursuant to this Section
7.4.
Section 7.5. Financial Reports. Each Borrower will maintain, and will
cause each Subsidiary to develop and maintain, a standard and modern system of
accounting in accordance with sound accounting practice, will permit the Agent,
each Lender and their representatives to visit and inspect the properties and
assets of each Borrower and the Subsidiaries at all reasonable times and will
furnish to the Agent, each Lender and their duly authorized representatives such
information respecting the business, financial condition, assets and liabilities
(whether absolute or contingent) of any Borrower and the Subsidiaries, as the
Agent or any Lender may reasonably request; and without any request, will
furnish to the Lenders:
(a) as soon as available, and in any event within 30 days after
the close of each monthly accounting period of each fiscal year of
Badger, copies of the balance sheet as of the close of such period and
the statement of earnings and statement of cash flow of Badger and the
Subsidiaries for such period and such fiscal year to the close of such
period, accompanied by reporting schedules, all (i) prepared on a
consolidated and consolidating basis and (ii) certified to on behalf of
Badger by the Treasurer thereof;
(b) as soon as available, and in any event within 45 days after
the close of each quarterly accounting period of each fiscal year of
Badger, copies of the balance sheet as of the close of such period and
the statement of earnings and statement of cash flow of Badger and the
Subsidiaries for such period and such fiscal year to the close of such
period, accompanied by reporting schedules, all (i) prepared on a
consolidated and consolidating basis and (ii) setting forth in
comparative form the consolidated and consolidating figures from actual
results for the corresponding quarterly and year-to-date periods of the
preceding fiscal year and (iii) certified to on behalf of Badger by the
Treasurer thereof;
(c) as soon as available, and in any event within 90 days after
the close of each fiscal year of Badger, copies of the consolidated
balance sheet of Badger and its
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Subsidiaries as of the close of such fiscal year and the consolidated
statements of income, retained earnings and cash flows of Badger and its
Subsidiaries for such period, and accompanying notes thereto, all in
reasonable detail showing in comparative form the figures for the
previous fiscal year, accompanied by an unqualified opinion thereon of
Grant Thornton LLP or another firm of independent public accountants of
recognized national standing, selected by Badger and satisfactory to the
Lenders, to the effect that the financial statements have been prepared
in accordance with generally accepted accounting principles, consistently
applied and present fairly in accordance with generally accepted
accounting principles, consistently applied the consolidated financial
condition of Badger and its Subsidiaries as of the close of such fiscal
year and the results of their operations and cash flows for the fiscal
year then ended and that an examination of such accounts in connection
with such financial statements has been made in accordance with generally
accepted auditing standards and, accordingly, such examination included
such tests of the accounting records and such other auditing procedures
as were considered necessary in the circumstances; and
(d) promptly after knowledge thereof shall have come to the
attention of any responsible officer of any Borrower, written notice of
any threatened or pending litigation, governmental proceeding or labor
dispute against any Borrower or any Subsidiary which could materially
adversely affect the business and properties of any Borrower or any
Subsidiary and of the occurrence of any Default or Event of Default, of
any default in the payment of rent due under any lease necessary to the
proper conduct of the business of any Borrower or any Subsidiary or any
action to terminate any such lease or of the receipt of any notice of any
alleged breach of the terms of any such lease, of the receipt of any
notice of any alleged breach of the terms of, or default under, any
indenture, loan, credit agreement, note, mortgage, deed of trust or
similar agreement and of any notice of alleged material noncompliance
with any laws or regulations of the type described in Section 5.11
hereof.
Each monthly, quarterly and annual report required by Section 7.5(a), (b), and
(c), respectively, shall be accompanied by a certificate in the form attached
hereto as Exhibit D signed on behalf of Badger by its Chairman, President or
Chief Financial Officer setting forth compliance in reasonable detail with
Sections 7.6, 7.7, 7.8 and 7.12 hereof and stating that no Default or Event of
Default exists hereunder as of the date of such certificate, or if such Default
or Event of Default exists the nature thereof shall be specified. Each audit
report called for by Section 7.5(c) hereof shall be accompanied by a statement
of the accountants certifying such statements to the effect that in the course
of their audit (conducted in accordance with generally accepted auditing
standards) they have obtained no knowledge that a Default or Event of Default
has occurred hereunder or, if they have obtained any such knowledge, describing
the same.
Section 7.6. Fixed Charge Coverage Ratio. Badger shall not, as of the
last day of each fiscal month of Badger ending during each of the periods
specified below, permit the ratio of (x) EBITDA for the twelve fiscal months of
Badger then ended minus Capital Expenditures during such period to (y) Fixed
Charges for the same twelve fiscal months then ended to be less than:
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FIXED CHARGE
COVERAGE RATIO SHALL
FROM AND INCLUDING TO AND INCLUDING NOT BE LESS THAN:
The date hereof June 29, 2000 1.15 to 1.00
June 30, 2000 June 29, 2001 1.50 to 1.00
June 30, 2001 At all times thereafter 2.00 to 1.00
Section 7.7. Consolidated Tangible Net Worth. Badger will, as of the last
day of each fiscal month of Badger, maintain Consolidated Tangible Net Worth at
not less than the Minimum Required Amount. For purposes of this Section 7.7, the
term "Minimum Required Amount" shall mean, as of any time, the sum of: (i)
$16,084,958; plus (ii) seventy five percent (75%) of Consolidated Net Income for
each fiscal quarter of Badger (if Consolidated Net Income for such fiscal
quarter is positive) completed on or after March 31, 1999.
Section 7.8. Leverage Ratio. Badger will not, as of the last day of each
fiscal month of Badger ending during the periods specified below, permit the
Leverage Ratio to be more than:
LEVERAGE RATIO
FROM AND INCLUDING TO AND INCLUDING SHALL NOT BE MORE THAN:
The date hereof March 30, 1999 4.00 to 1.00
March 31, 1999 December 30, 1999 3.50 to 1.00
December 31, 1999 At all times thereafter 2.75 to 1.00
Section 7.9. Year 2000 Assessment. Each Borrower shall take all actions
necessary and commit adequate resources to assure that its computer-based and
other systems (and those of all Subsidiaries) are able to effectively process
dates, including dates before, on and after January 1, 2000, without
experiencing any Year 2000 Problem that could cause a material adverse effect on
the business or financial affairs of such Borrower (or of the Borrowers and the
Subsidiaries taken on a consolidated basis). At the request of the Agent, each
Borrower will provide the Agent with written assurances and substantiations
(including, but not limited to, the results of internal or external audit
reports prepared in the ordinary course of business) reasonably acceptable to
the Agent as to the capability of such Borrower and its Subsidiaries to conduct
its and their businesses and operations before, on and after January 1, 2000,
without experiencing a Year 2000 Problem causing a material adverse effect on
the business or financial affairs of such Borrower (or of the Borrowers and the
Subsidiaries taken on a consolidated basis).
Section 7.10. Liens. No Borrower will, nor will it permit any Subsidiary
to, pledge, mortgage or otherwise encumber or subject to, or permit to exist
upon or be subjected to, any lien, security interest or charge upon, any assets
or property of any kind or character at any time
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owned by such Borrower or any Subsidiary; provided, however, that nothing
contained in this Section shall operate to prevent:
(a) liens, pledges or deposits in connection with workmen's
compensation, social security obligations, taxes, assessments, statutory
obligations or other similar charges, good faith deposits in connection
with tenders, contracts or leases to which a Borrower or a Subsidiary is
a party or other deposits required to be made in the ordinary course of
business and not in connection with borrowing money or obtaining advances
or credit; provided in each case that the obligation or liability arises
in the ordinary course of business and is not overdue, or if overdue, is
being contested in good faith by appropriate proceedings;
(b) construction, materialmen's, carrier's or warehousemen's liens
securing obligations not overdue, or if overdue, being contested in good
faith by appropriate proceedings;
(c) pledges or deposits for the purpose of securing a stay or
discharge in the course of any legal proceeding, provided that the
aggregate amount of liabilities of the Borrowers and the Subsidiaries so
secured by a pledge of assets permitted under this subsection (c),
including interest and penalties thereon, if any, shall not be in excess
of $100,000 at any one time outstanding;
(d) the liens provided for in the Collateral Documents;
(e) with respect to real property, easements, rights of way,
reservations and other minor defects or irregularities in title which do
not materially impair the use thereof for the purposes for which it is
held by such Borrower or any Subsidiary; and
(f) the Liens existing on the date hereof supporting the UDAG
Loan.
Section 7.11. Indebtedness. Badger will not, and will not permit any
Subsidiary to, issue, incur, assume, create or have outstanding any indebtedness
for borrowed money (including as such for all purposes of this Agreement any
indebtedness representing the deferred purchase price of property (accounts
payable for the purchase of goods on ordinary trade terms not evidenced by any
instrument shall not be deemed indebtedness for the deferred purchase price of
property for purposes of this Section 7.11), any liability in respect of
banker's acceptances, any indebtedness, whether or not assumed, secured by liens
on property acquired by Badger or any Subsidiary existing at the time of the
acquisition thereof, and the liability of Badger or any Subsidiary under any
lease which can be capitalized under generally accepted accounting principles as
in effect on the date hereof); provided, however, that the foregoing provisions
shall not restrict nor operate to prevent:
(a) the indebtedness of the Borrowers on the Notes;
(b) the indebtedness of a Consolidated Subsidiary owing to Badger;
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(c) indebtedness of Badger owing to a Consolidated Subsidiary
arising in the ordinary course out of the Borrowers' cash management
system;
(d) the currently outstanding obligations under the Tax-exempt
Financings and the UDAG Loan; and
(e) to the extent permitted by Section 7.12 hereof, purchase money
indebtedness of the Borrowers for the purchase price of capital
equipment.
Section 7.12. Capital Expenditures. Badger will not, nor will it permit
any Subsidiary to, expend or become obligated for Capital Expenditures in an
aggregate amount for Badger and the Subsidiaries in excess of the following:
Fiscal Year 1998..................................$2,800,000
Fiscal Year 1999..................................$3,700,000
Fiscal Year 2000..................................$6,000,000
Fiscal Year 2001..................................$4,800,000
and each fiscal year thereafter
Section 7.13. Acquisitions, Investments, Loans, Advances and Guaranties.
The Borrowers will not, and will not permit any Subsidiary to, directly or
indirectly, make, retain or have outstanding any investments (whether through
purchase of stock or obligations or otherwise) in, or loans or advances to, any
other person, firm or corporation or acquire all or any substantial part of the
assets or business of any other person, firm or corporation, or be or become
liable as endorser, guarantor, surety or otherwise for any debt, obligation or
undertaking of any other person, firm or corporation or otherwise agree to
provide funds for payment of the obligations of another, or supply funds thereto
or invest therein or otherwise assure a creditor of another against loss or
apply for or become liable to the issuer of a letter of credit which supports an
obligation of another or subordinate any claim or demand it may have to the
claim or demand of any other person, firm or corporation; provided, however,
that the foregoing provisions shall not apply to nor operate to prevent:
(a) investments by a Borrower in Marketable Securities;
(b) endorsements for collection or deposit of commercial paper
received in the ordinary course of business; and
(c) the existing equity investments of Badger in PlasTechs and of
Badger and PlasTechs in Peshtigo Power.
Section 7.14. Dividends and Certain Other Restricted Payments. Badger
will not, without the prior written consent of the Lenders, declare or pay any
dividends on or make any other distributions in respect of any class of its
capital stock (other than dividends payable solely in its capital stock) and no
Borrower will directly or indirectly or through any Subsidiary purchase, redeem
or otherwise acquire or retire any of its capital stock; provided however, in
each case no Default or Event of Default shall then exist or result therefrom
Badger may declare
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and pay cash dividends on its common stock and may purchase its capital stock in
an aggregate amount for all such dividends and purchases in each fiscal year of
Badger not exceeding 5% of Badger's Consolidated Net Income for the most
recently completed fiscal year.
Section 7.15. Mergers, Consolidations, Leases and Sales. Without the
prior written consent of the Lenders, the Borrowers will not, and will not
permit any Subsidiary to, be a party to any merger or consolidation, or sell,
transfer, lease or otherwise dispose of all or any substantial part of its
property, assets or business, or in any event sell or discount (with or without
recourse) any of its notes or accounts receivable or lease any property
theretofore owned by a Borrower or any Subsidiary; provided, however, that this
Section shall not apply to nor prohibit (i) a Borrower or any Subsidiary from
selling assets no longer used or useful in the conduct of their respective
businesses or from selling inventory in the ordinary course of its business or
(ii) any merger or consolidation of a Subsidiary with or into Badger (so long as
Badger is the surviving entity) so long as, at the time of such merger or
consolidation or immediately after giving effect thereto, no Default or Event of
Default shall occur or be continuing. A sale or disposition of 1% of the total
assets of a Borrower shall be deemed substantial for the foregoing purposes.
Section 7.16. Environmental Laws. Each Borrower will, and will cause each
of its Subsidiaries to, (a) use and operate all of its facilities and properties
in material compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance therewith, and
handle all hazardous substances in material compliance with all applicable
Environmental Laws, except to the extent the failure to comply with the
foregoing would not materially adversely affect the business, properties,
assets, operations, prospects or condition (financial or otherwise) of Badger
and its Subsidiaries taken as a whole and (b) provide such information and
certifications which any Lender may reasonably request from time to time to
evidence compliance with this Section.
Section 7.17. Disclosure of Environmental Matters. (a) As soon as
available, and in any event within 45 days after the close of each quarterly
fiscal period of Badger, Badger shall prepare and deliver a disclosure letter to
the Lenders identifying and describing in reasonable detail those matters
necessary to preserve the accuracy and completeness of the representations set
forth in Section 5.10 herein.
(b) As soon as reasonably practicable, but in no event later than fifteen
(15) days after any Borrower first receives or gives notice, such Borrower shall
disclose to the Lenders the following to the extent the existence or effect of
any of the following could have a material adverse affect on the business,
properties, assets, operations, prospects or condition (financial or otherwise)
of any Borrower or any Subsidiary:
(i) any Demand or knowledge of a condition which in such
Borrower's judgment could reasonably be expected to give rise to any
material liability under any Environmental Laws to any Borrower or any
Subsidiary;
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(ii) any previously undisclosed contamination or release of a
hazardous substance or hazardous substances to groundwater or any water
beneath the surface of the ground on property of any Borrower or any
Subsidiary;
(iii) any Demand that any Borrower or any Subsidiary pay or is
liable for any injury or damage to persons or property due to or arising
from any Borrower's or any Subsidiary's use or release of hazardous
substance or hazardous substances.
(iv) any Demand that any Borrower or any Subsidiary pay or is
liable for the costs of responding to a release of hazardous substances
on property not owned or operated by any Borrower or any Subsidiary
Section 7.18. Maintenance of Subsidiaries. Badger will not assign, sell
or transfer, or permit any Subsidiary to issue, assign, sell or transfer, any
shares of capital stock of a Subsidiary, provided that the foregoing shall not
operate to prevent the issuance, sale and transfer to any person of any shares
of capital stock of a Subsidiary solely for the purpose of qualifying, and to
the extent legally necessary to qualify, such person as a director of such
Subsidiary.
Section 7.19. Formation of Subsidiaries. No Borrower nor any Subsidiary
shall form or acquire any Subsidiary other than the present Subsidiaries
designated on Exhibit B hereto.
Section 7.20. ERISA. Each Borrower will, and will cause each ERISA
Affiliate to, promptly pay and discharge all obligations and liabilities arising
under the IRC or ERISA of a character which if unpaid or unperformed would
result in the imposition of a lien against any of their respective properties or
assets or a material obligation to pay money (including, but not limited to any
liability to a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA),
will promptly notify the Lenders when any Borrower becomes aware of the
occurrence of any Reportable Event (as defined in Section 4043 of ERISA) which
could result in the termination by the PBGC of any employee benefit plan
covering any officers or employees of any Borrower or any ERISA Affiliate, any
benefits of which are, or are required to be, guaranteed by the PBGC (a "Plan")
or of receipt of any notice from the PBGC of its intention to seek termination
of any such Plan or appointment of a trustee therefor. Each Borrower will, and
will cause each ERISA Affiliate to, notify the Lenders of its or any ERISA
Affiliate's intention to terminate any Plan and will not, and will not permit
any ERISA Affiliate to, terminate any such Plan, the termination of which will
result in a material liability to a Borrower or any ERISA Affiliate, unless the
Borrowers and ERISA Affiliates shall be in compliance with all of the terms and
conditions of this Agreement after giving effect to any estimated liability to
the PBGC (as determined by the Plan's independent actuaries) resulting from such
termination or withdrawal.
Section 7.21. Change in Fiscal Year. Badger will not change its fiscal
year.
Section 7.22. Change in the Nature of Business. The Borrowers will not,
and will not permit any Subsidiary to, engage in any business or activity if as
a result the general nature of the business of such Borrower or any Subsidiary
would be changed in any material respect from the general nature of the business
engaged in by such Borrower or such Subsidiary on the date of this Agreement.
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Section 7.23. Use of Loan Proceeds. The Borrowers will use all credit
under this Agreement solely to finance general corporate purposes.
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.
Section 8.1. Any one or more of the following shall constitute an Event
of Default hereunder:
(a) default in the payment of any part of the principal of any
Note when due, whether at the stated maturity thereof or at any other
time provided for in this Agreement;
(b) default in the payment of any part of the interest on any Note
when due, whether at the stated maturity thereof or at any time provided
for in this Agreement, or default in the payment when due of any fee,
commission, charge or other amount payable by any Borrower hereunder;
(c) default in the observance or performance of any covenant set
forth in Sections 7.6 through 7.23 hereof or of any covenant in any
Collateral Document dealing with the use, disposition or remittance of
the proceeds of Collateral or the maintenance of insurance thereon or
default after notice to the Borrowers in the observance or performance of
any covenant set forth in Section 7.5 hereof;
(d) default in the observance or performance of any other
provision hereof or of any of the Collateral Documents which is not
remedied within 20 days after notice thereof to the Borrowers by the
Agent or any Lender;
(e) default shall occur in the payment when due (subject to any
applicable grace period) of any indebtedness for money borrowed
(including as such all indebtedness so treated for purposes of Section
7.11 hereof) aggregating greater than $100,000 which was incurred,
assumed or guaranteed by a Borrower or any Subsidiary, or default or the
happening of any event shall occur under any indenture, agreement or
other instrument under which any such indebtedness was incurred, assumed
or guaranteed if the effect of such default or event is to accelerate, or
permit the acceleration of, the maturity of such indebtedness and such
default continues uncured, unremedied and unwaived beyond any applicable
period of grace;
(f) any representation or warranty made herein or in any of the
Collateral Documents or pursuant hereto or thereto or in connection with
any transaction contemplated hereby or thereby proves untrue in any
material respect as of the date of or making thereof;
(g) any judgment or judgments, writ or writs or warrant or
warrants of attachment, or any similar process or processes in an
aggregate amount in excess of $100,000 and which is not fully covered by
insurance shall be entered or filed against any Borrower or any
Subsidiary or against any of the property or assets of either and remains
undischarged, unvacated, unbonded or unstayed for a period of 30 days;
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(h) Badger shall at any time and for any reason cease to own, both
legally and beneficially, 100% of the issued and outstanding Voting Stock
of PlasTechs;
(i) an event occurs or condition exists which is specified as an
event of default in any of the Collateral Documents;
(j) any party obligated on any guarantee of any Obligations shall
purport to disavow, revoke, repudiate or terminate such guarantee;
(k) bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceedings for relief under any
bankruptcy law or similar law for the relief of debtors are instituted
against any Borrower or any Subsidiary and are not dismissed within 60
days after such institution or a decree or order of a court having
jurisdiction in the premises for the appointment of a trustee, custodian
or receiver for any Borrower or any Subsidiary or for the major part of
its property is entered and the trustee, custodian or receiver appointed
pursuant to such decree or order is not discharged within 60 days after
such appointment; or
(l) any Borrower or any Subsidiary shall institute bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or
other proceedings for relief under any bankruptcy law or laws for the
relief of debtors or shall consent to the institution of such proceedings
against it by others or to the entry of any decree or order adjudging it
bankrupt or insolvent or approving as filed any petition seeking
reorganization under any bankruptcy or similar law or shall apply for or
shall consent to the appointment of a receiver, custodian or trustee for
it or for the major part of its property or shall make an assignment for
the benefit of creditors or shall take any corporate action authorizing
any of the foregoing.
Section 8.2. When any Event of Default described in subsections 8.1(a) to
8.1(j), both inclusive, has occurred and is continuing, the Agent shall, upon
request of the Lenders, by notice to the Borrowers, take any or all of the
following actions:
(a) terminate the obligation of the Lenders to extend any further
credit hereunder on the date (which may be the date thereof) stated in
such notice; and
(b) declare the principal of and the accrued interest on the Notes
to be forthwith due and payable and thereupon the Notes, including both
principal and interest, and all fees, charges, commissions and other
Obligations payable hereunder, shall be and become immediately due and
payable without further demand, presentment, protest or notice of any
kind.
Section 8.3. When any Event of Default described in subsection 8.1(k) or
8.1(l) has occurred and is continuing, then the then unpaid balance of the
Notes, including both principal and interest, and all fees, charges, commissions
and other Obligations payable hereunder, shall immediately become due and
payable without presentment, demand, protest or notice of any
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kind, and the obligation of the Lenders to extend further credit pursuant to any
of the terms hereof shall immediately terminate.
SECTION 9. THE GUARANTEES.
Section 9.1. The Guarantees. To induce the Lenders to provide the credits
described herein and in consideration of benefits expected to accrue to each
Borrower by reason of the Commitments and for other good and valuable
consideration, receipt of which is hereby acknowledged, each Borrower hereby
unconditionally and irrevocably guarantees jointly and severally to the Lenders,
to the Agent, and to each of them, the due and punctual payment of all present
and future indebtedness of the Borrowers evidenced by or arising out of the Loan
Documents, including, but not limited to, the due and punctual payment of
principal of and interest on the Notes and the due and punctual payment of all
other Obligations now or hereafter owed by the Borrowers under the Loan
Documents as and when the same shall become due and payable, whether at stated
maturity, by acceleration or otherwise, according to the terms hereof and
thereof. In case of failure by any Borrower punctually to pay any indebtedness
guaranteed hereby, each Borrower hereby unconditionally agrees jointly and
severally to make such payment or to cause such payment to be made punctually as
and when the same shall become due and payable, whether at stated maturity, by
acceleration or otherwise, and as if such payment were made by such Borrower.
Section 9.2. Guarantee Unconditional. The obligations of each Borrower as
a guarantor under this Section 9 shall be unconditional and absolute and,
without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of any other Borrower under this
Agreement or any other Loan Document or by operation of law or otherwise;
(b) any modification or amendment of or supplement to this
Agreement or any other Loan Document;
(c) any change in the corporate existence, structure or ownership
of, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting, any other Borrower, or any of their respective
assets, or any resulting release or discharge of any obligation of any
other Borrower contained in any Loan Document;
(d) the existence of any claim, set-off or other rights which such
Borrower may have at any time against the Agent, any Lender or any other
Person, whether or not arising in connection herewith;
(e) any failure to assert, or any assertion of, any claim or
demand or any exercise of, or failure to exercise, any rights or remedies
against any other Borrower, or any Collateral;
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(f) any application of any sums by whomsoever paid or howsoever
realized to any obligation of any other Borrower, regardless of what
obligations of such Borrower remain unpaid;
(g) any invalidity or unenforceability relating to or against any
other Borrower for any reason of this Agreement or of any other Loan
Document or any provision of applicable law or regulation purporting to
prohibit the payment by any other Borrower of the principal of or
interest on any Note or any other amount payable by it under the Loan
Documents; or
(h) any other act or omission to act or delay of any kind by the
Agent, any Lender or any other Person or any other circumstance
whatsoever that might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the obligations of any other
Borrower under this Section 9.
Section 9.3. Discharge Only Upon Payment in Full; Reinstatement in
Certain Circumstances. Each Borrower's obligations under this Section 9 shall
remain in full force and effect until the Commitments are terminated and the
principal of and interest on the Notes and all other amounts payable by the
Borrowers under this Agreement and all other Loan Documents shall have been paid
in full. If at any time any payment of the principal of or interest on any Note
or any other amount payable by the Borrowers under the Loan Documents is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of any Borrower, or otherwise, each Borrower's
obligations under this Section 9 with respect to such payment shall be
reinstated at such time as though such payment had become due but had not been
made at such time and shall survive the termination of the Commitments and the
repayment of the Loans.
Section 9.4. Subrogation. No Borrower will exercise any rights which it
may acquire by way of subrogation by any payment made hereunder, or otherwise,
until all the Obligations shall have been paid in full subsequent to the
termination of all the Commitments. If any amount shall be paid to a Borrower on
account of such subrogation rights at any time prior to the later of (x) the
payment in full of the Obligations and all other amounts payable by such
Borrower hereunder and (y) the termination of all the Commitments, such amount
shall be held in trust for the benefit of the Agent and the Lenders and shall
forthwith be paid to the Agent or be credited and applied upon the Obligations,
whether matured or unmatured, in accordance with the terms of this Agreement.
Notwithstanding any other provision hereof, the Agent's and the Lenders' right
to recovery against each Borrower under this Section 9 shall not exceed $1.00
less than the amount which would render such Borrower's obligations under this
Section 9 void or voidable under applicable law, including without limitation
fraudulent conveyance law.
Section 9.5. Waivers. Each Borrower irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as
any requirement that at any time any action be taken by the Agent, any Lender or
any other Person against any Borrower or any other Person.
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Section 9.6. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by any Borrower under this Agreement or any other
Loan Document is stayed upon the insolvency, bankruptcy or reorganization of
such Borrower, all such amounts otherwise subject to acceleration under the
terms of this Agreement or the other Loan Documents shall nonetheless be payable
jointly and severally by the Borrowers hereunder forthwith on demand by the
Agent made at the request of the Lenders.
SECTION 10. DEFINITIONS.
The following terms when used herein shall have the following meanings;
such terms to be equally applicable to both the singular and plural of the terms
defined (capitalized terms defined elsewhere in this Agreement to have the
meanings so ascribed to them in all provisions of this Agreement).
"Adjusted LIBOR Rate" means a rate per annum determined pursuant to the
following formula:
Adjusted LIBOR Rate = LIBOR
100%-Reserve Percentage
"Reserve Percentage" means, for the purpose of computing the Adjusted LIBOR
Rate, the maximum rate of all reserve requirements (including, without
limitation, any marginal emergency, supplemental or other special reserves)
imposed by the Board of Governors of the Federal Reserve System (or any
successor) under Regulation D on Eurocurrency liabilities (as such term is
defined in Regulation D) for the applicable Interest Period as of the first day
of such Interest Period, but subject to any amendments to such reserve
requirement by such Board or its successor, and taking into account any
transitional adjustments thereto becoming effective during such Interest Period.
For purposes of this definition, LIBOR Portions shall be deemed to be
Eurocurrency liabilities as defined in Regulation D without benefit of or credit
for prorations, exemptions or offsets under Regulation D. "LIBOR" means, for
each Interest Period, (a) the LIBOR Index Rate for such Interest Period, if such
rate is available, and (b) if the LIBOR Index Rate cannot be determined, the
arithmetic average of the rate of interest per annum (rounded upwards, if
necessary, to nearest 1/100 of 1%) at which deposits in U.S. dollars in
immediately available funds are offered to the Agent at 11:00 a.m. (London,
England time) two (2) Business Days before the beginning of such Interest Period
by major banks in the interbank eurodollar market for a period equal to such
Interest Period and in an amount equal or comparable to the principal amount of
the Eurodollar Loan scheduled to be made by the Agent as part of such Borrowing.
Each determination of LIBOR made by the Agent shall be final and conclusive
absent manifest error.
"Affiliate" means any person, firm, corporation or entity (herein
collectively called a "Person") directly or indirectly controlling or controlled
by, or under direct or indirect common control with, another Person. A Person
shall be deemed to control another Person for the purposes of this definition if
such first Person possesses, directly or indirectly, the power to direct, or
cause the direction of, the management and policies of the second Person,
whether
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through the ownership of voting securities, common directors, trustees or
officers, by contract or otherwise.
"Agent" means Harris Trust and Savings Bank and any successor thereto
appointed pursuant to Section 11.1 hereof.
"Badger Security Agreement" means that certain Security Agreement dated
as of June 30, 1993 from Badger to the Agent.
"Business Day" means any day (other than a Saturday or Sunday) on which
banks are generally open for business in Chicago, Illinois and, when used with
respect to LIBOR Portions, a day on which banks are also dealing in United
States Dollar deposits in London, England and Nassau, Bahamas.
"Capital Expenditures" for any period means capital expenditures of
Badger and its Subsidiaries during such period as defined and classified in
accordance with generally accepted accounting principles consistently applied.
"Capital Lease" means any lease of property which in accordance with
generally accepted accounting principles is required to be capitalized on the
balance sheet of the lessee.
"Collateral Documents" means all guarantees as shall from time to time
guaranty the Notes (including the Guaranties) or any other obligations of the
Borrowers hereunder or in connection herewith and all mortgages, deeds of trust,
security agreements, pledge agreements, assignments, financing statements and
other documents as shall from time to time secure or relate to the Notes or any
other Obligations.
"Commitments" means the commitments of the Lenders to make financial
accommodations under the Revolving Credit in the amounts set forth opposite
their signatures hereto under the heading "Commitment" as such amounts may be
reduced pursuant hereto.
"Consolidated Net Income" means, with reference to any period, the net
income (or net loss) of Badger and its Consolidated Subsidiaries for such period
as computed on a consolidated basis in accordance with generally accepted
accounting principles, and, without limiting the foregoing, after deduction from
gross income of all expenses and reserves, including reserves for all taxes on
or measured by income, but excluding any extraordinary profits and losses
incurred during Badger's fiscal years 1997 and 1998, also excluding any taxes on
such extraordinary profits and any unrealized gains or losses on the Borrowers'
Marketable Securities.
"Consolidated Subsidiary" means any subsidiary whose accounts at any date
are consolidated with those of Badger in accordance with generally accepted
accounting principles.
"Consolidated Tangible Net Worth" - means the amount of capital stock
accounts (less the amount of any treasury stock) plus (or minus in the case of a
deficit) the amount of surplus and retained earnings accounts of Badger and its
Consolidated Subsidiaries and minus the total amount of all intangible assets of
Badger and its Consolidated Subsidiaries (including, without
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limitation, unamortized debt discount and expense, deferred charges and
goodwill), all as determined on a consolidated basis for Badger and its
Consolidated Subsidiaries in accordance with generally accepted accounting
principles consistently applied; provided, however, that Consolidated Tangible
Net Worth shall not be increased or reduced by any unrealized gains or losses on
the Borrowers' Marketable Securities.
"Domestic Rate" means a fluctuating interest rate per annum equal at all
times to the greater of:
(a) the rate of interest announced by the Agent from time to time
as its prime commercial rate as in effect on such day, with any change in
such rate resulting from a change in said prime commercial rate to be
effective as to the Borrowers as of the date of the relevant change in
said prime commercial rate; and
(b) the sum of (x) the rate determined by the Agent to be the
average (rounded upwards, if necessary, to the next higher 1/100 of 1% of
the rates per annum quoted to the Agent at approximately 10:00 a.m.
Chicago time (or as soon thereafter as is practicable) on such day (or,
if such day is not a Business Day, on the immediately preceding Business
Day) by two or more Federal funds brokers selected by the Agent for the
sale to the Agent at face value of Federal funds in the secondary market
in an amount equal or comparable to the principal amount owed to the
Lenders for which such rate is being determined, plus (y) 1/2 of 1%.
"EBITDA" means, with reference to any period, Consolidated Net Income for
such period plus all amounts deducted in arriving at such Consolidated Net
Income amount in respect of (i) Interest Expense for such period, plus (ii)
federal, state and local income taxes for such period, plus (iii) all amounts
properly charged for depreciation of fixed assets and amortization of intangible
assets during such period on the books of the Borrowers and their Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"ERISA Affiliate" means any (i) corporation which is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
IRC) as any Borrower, (ii) partnership or other trade or business (whether or
not incorporated) under common control (within the meaning of Section 414(c) of
the IRC) with any Borrower, and (iii) member of the same affiliated service
group (within the meaning of Section 414(m) of the IRC) as any Borrower, any
corporation described in clause (i) above or any partnership or trade or
business described in clause (ii) above.
"Eurodollar Margin" means
(i) 1.25% for any Pricing Period the Compliance Certificate
delivered by Badger for the second fiscal month preceding such Pricing
Period shows a Leverage Ratio of less than 2.25 to 1.00;
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(ii) 1.50% for any Pricing Period the Compliance Certificate
delivered by Badger for the second fiscal month preceding such Pricing
Period shows a Leverage Ratio of greater than or equal to 2.25 to 1.00
and less than 2.75 to 1.00;
(iii) 1.75% for any Pricing Period the Compliance Certificate
delivered by Badger for the second fiscal month preceding such Pricing
Period shows a Leverage Ratio greater than or equal to 2.75 to 1.00 but
less than 3.25 to 1.00; and
(iv) 2.25% for any Pricing Period the Compliance Certificate
delivered by Badger for the second fiscal month preceding such Pricing
Period shows a Leverage Ratio greater than or equal to 3.25 to 1.00 or
for which Badger has not delivered a Compliance Certificate as required
by Section 7.6 hereof.
From the Effective Date through March 31, 1999, the Eurodollar Margin shall be
that set forth in clause (iv) above.
"Event of Default" means any event or condition specified as such in
Section 8.1 hereof and "Default" means any event or condition which with the
lapse of time, the giving of notice or both would constitute an Event of
Default.
"Fixed Charges" means, with reference to any period, the sum of (i) the
aggregate amount of payments required to be made by the Borrowers and their
Subsidiaries during such period in respect of principal on all Indebtedness for
Borrowed Money (whether at maturity, as a result of mandatory sinking fund
redemption, mandatory prepayment, acceleration or otherwise), plus (ii) Interest
Expense for such period, plus (iii) the aggregate amount of payments required to
be made by the Borrowers and their Subsidiaries during such period in respect of
leases or similar arrangements (including without limitation all payments
required under operating and Capital Leases under which the Borrowers or any
Subsidiary is liable as lessee); provided, however, Fixed Charges shall not
include any amounts payable with respect to the Tax-Exempt Financings which
constitute payments in excess of the regularly scheduled amortization thereof.
"IRC" means the Internal Revenue Code of 1986, as amended from time to
time.
"Indebtedness for Borrowed Money" means for the Borrowers and the
Subsidiaries (i) all indebtedness of the Borrowers and the Subsidiaries for
borrowed money, whether current or funded, or secured or unsecured, (ii) all
indebtedness for the deferred purchase price of property or services (whether or
not represented by a note or other security), (iii) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by any Borrower or any Subsidiary (even though the
rights and remedies of the seller or Lender under such agreement in the event of
default are limited to repossession or sale of such property), (iv) all
indebtedness secured by a purchase money mortgage or other lien to secure all or
part of the purchase price of property subject to such mortgage or lien and (v)
all obligations under leases which shall have been or must be, in accordance
with generally accepted accounting principles, recorded as capital leases in
respect of which any Borrower or any Subsidiary is liable as lessee.
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"Interest Expense" means with reference to any period all interest
charges (including imputed interest on capitalized lease obligations) and
amortization of debt discount and expense with respect to all Indebtedness for
Borrowed Money of the Borrowers and the Subsidiaries during such period.
"Interest Period" means with respect to any LIBOR Portion, the period
commencing on, as the case may be, the creation, continuation or conversion date
with respect to such LIBOR Portion and ending one, two, three or six months
thereafter as selected by the relevant Borrower in its notice as provided
herein; provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day which is
not a Business Day, that Interest Period shall be extended to the next
succeeding Business Day, unless the result of such extension would be to
carry such Interest Period into another calendar month in which event
such Interest Period shall end on the immediately preceding Business Day;
(ii) no Interest Period may extend beyond the Termination Date;
(iii) the interest rate to be applicable to each Portion for each
Interest Period shall apply from and including the first day of such
Interest Period to but excluding the last day thereof; and
(iv) no Interest Period may be selected if after giving effect
thereto the relevant Borrower will be unable to make a principal payment
scheduled to be made during such Interest Period without paying part of a
LIBOR Portion on a date other than the last day of the Interest Period
applicable thereto.
For purposes of determining an Interest Period, a month means a period
starting on one day in a calendar month and ending on a numerically
corresponding day in the next calendar month, provided, however, if an Interest
Period begins on the last day of a month or if there is no numerically
corresponding day in the month in which an Interest Period is to end, then such
Interest Period shall end on the last Business Day of such month.
"Lenders" means Harris Trust and Savings Bank and all other lenders
becoming parties hereto pursuant to Section 12.18 hereto.
"Letters of Credit" means, collectively, the letters of credit supporting
each of the Tax-exempt Financings.
"Leverage Ratio" means, as of any time, the ratio of (x) Total Funded
Debt as of such date of determination to (y) EBITDA for the twelve most recently
completed fiscal months of Badger.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for
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deposits in U.S. Dollars for a period equal to such Interest Period, which
appears on the Telerate Page 3750 as of 11:00 a.m. (London, England time) on the
day two Business Days before the commencement of such Interest Period.
"Loan Documents" means this Agreement, the Notes, the Collateral
Documents and any other document or agreement executed in connection herewith or
therewith.
"Marketable Securities" - means (i) direct general obligations of, or
obligations the payment of the principal of and interest on which are
unconditionally guaranteed by, the United States of America, (ii) bonds,
debentures or notes issued by Federal National Mortgage Association, Government
National Mortgage Association, Federal Financing Bank, Federal Farm Credit Bank,
Federal Land Bank, Federal Home Loan Bank, Farmers Home Administration, Federal
Home Loan Mortgage Association or any other comparable federal agency hereafter
created to the extent that said obligations are unconditionally guaranteed by
the United States of America, (iii) direct and general obligations of any state
of the United States of America or any municipality or political subdivision of
such State if at the time of their purchase such obligations are rated in any of
the three highest rating categories by Moody's Investors Service, Inc. and
Standard & Poor's Corporation, (iv) corporate debt obligations if at the time of
their purchase such obligations are rated in any of the three highest rating
categories by Moody's Investors Service, Inc. and Standard & Poor's Corporation,
(v) certificates of deposit issued by any bank or trust company the deposits of
which are secured by the Federal Deposit Insurance Corporation, if such
certificates of deposit are either (A) fully insured as to principal plus
accrued interest by the Federal Deposit Insurance Corporation, or (B) issued by
a bank or trust company the long-term unsecured debt obligations of which are
rated in any of the three highest rating categories by Moody's Investors
Service, Inc. and Standard & Poor's Corporation, and (vi) existing investments
as set forth on Exhibit E hereto.
"Material adverse change" and "material adverse effect" means an event or
series of events taken as a whole, which has resulted in, or which reasonably
could be expected to result in a material adverse change in the condition,
financial or otherwise, of Badger and its consolidated Subsidiaries as shown on
the then most recent financial statements of Badger. For the purposes hereof, an
event resulting loss reflected in Badger's earnings in an amount equal to
$500,000 would be deemed to be a material adverse change.
"Notes" is defined in Section 1.2 hereof.
"Obligations" means any and all indebtedness, obligations and liabilities
of the Borrowers and the Subsidiaries or any of them to the Lenders or the Agent
now or hereafter arising hereunder or under the Notes or the Collateral
Documents or any other Loan Document.
"Oconto Falls Facility" means the property of PlasTechs located at 705
Ralph Lemorande Drive, in Oconto Falls, Wisconsin purchased with the proceeds of
the Oconto Falls Financing.
"Oconto Falls Financing" means the $4,000,000 City of Oconto Falls,
Wisconsin Variable Rate Demand Limited Obligation Industrial Development Revenue
Bonds, Series 1992
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(PlasTechs, Inc. Project) maturing December 1, 2006 supported by Irrevocable
Transferable Letter of Credit No. SPL 32731 issued by Harris Trust and Savings
Bank in the amount of $2,751,485.
"Person" means any person, firm, corporation or other entity.
"Peshtigo Facility" means the property of Badger located at 200 West
Front Street, in Peshtigo, Wisconsin purchased with the proceeds of the Peshtigo
Financing.
"Peshtigo Financing" means the $4,650,000 City of Peshtigo, Wisconsin
Variable Rate Demand Limited Obligation Industrial Development Revenue Funding
Bonds, Series 1992 (Badger Paper Mills, Inc. Project) maturing December 1, 2006
supported by Irrevocable Transferable Letter of Credit No. SPL 32687 issued by
Harris Trust and Savings Bank in the amount of $4,738,669.
"Peshtigo Power" means Peshtigo Power, LLC, a Wisconsin limited liability
company.
"Peshtigo Security Agreement" means that certain Security Agreement dated
as of January 29, 1999 from Peshtigo Power to the Agent.
"PlasTechs Security Agreement" means that certain Security Agreement
dated as of June 30, 1993 from PlasTechs to the Agent.
"Pricing Period" means, for determining the Eurodollar Margin, each
period commencing on the first day of each fiscal quarter of Badger and
terminating on the last day of such fiscal quarter of Badger.
"Reimbursement Obligations" means any and all obligations of the
Borrowers or either of them to reimburse the Bank for drawings under the Letters
of Credit.
"Security Agreements" means collectively, the Badger Security Agreement,
the PlasTechs Security Agreement and the Peshtigo Power Security Agreement.
"Subsidiary" means any other corporation at least 51% of the outstanding
voting shares of which is at the time directly or indirectly owned by any
Borrower or by any other corporations or entities which are themselves
Subsidiaries.
"Tax-exempt Financings" means the Oconto Falls Financing and the Peshtigo
Financing.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on that service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for U.S. Dollar deposits).
"Termination Date" means November 30, 2001 or such earlier date on which
the Commitments are terminated in whole pursuant to Sections 3.5, 8.2 or 8.3
hereof, provided that
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the Borrower may, at least 60 days prior to such date, request that the Lenders
extend such date to a later date at the Lenders' sole discretion.
"Total Funded Debt" means, at any time the same is to be determined, the
aggregate of all Indebtedness for Borrowed Money of the Borrowers and their
Subsidiaries at such time, plus all Indebtedness for Borrowed Money of any other
Person which is directly or indirectly guaranteed by the Borrowers or any of
their Subsidiaries or which the Borrowers or any of their Subsidiaries has
agreed (contingently or otherwise) to purchase or otherwise acquire or in
respect of which the Borrowers or any of their Subsidiaries has otherwise
assured a creditor against loss.
"UDAG Loan" means the $2,000,000 in original principal amount City of
Peshtigo Loan issued pursuant to U.D.A.G. Grant No. B-83-AB-55-0064 to Badger
due August 31, 1999 of which $1,581,805.80 remains outstanding.
"Voting Stock" means capital stock or any class or classes of a
corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the directors thereof (or Persons
performing similar functions).
"Year 2000 Problem" means any significant risk that computer hardware,
software, or equipment containing embedded microchips essential to the business
or operations of the Borrowers or any of the Subsidiaries will not, in the case
of dates or time periods occurring after December 31, 1999, function at least as
efficiently and reliably as in the case of times or time periods occurring
before January 1, 2000, including the making of accurate leap year calculations.
SECTION 11. THE AGENT.
Section 11.1. Appointment and Authorization. Each Lender hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers hereunder and under the Collateral Documents as are
designated to the Agent by the terms hereof and thereof together with such
powers as are reasonably incidental thereto. The Agent may resign at any time by
sending twenty (20) days prior written notice to the Borrowers and the Lenders
and may be removed by the Lenders upon twenty (20) days prior written notice to
the Borrowers and the Lenders. In the event of any such resignation or removal,
the Lenders may appoint a new agent, which shall succeed to all the rights,
powers and duties of the Agent hereunder and under the Collateral Documents. Any
resigning or removed Agent shall be entitled to the benefit of all the
protective provisions hereof with respect to its acts as an agent hereunder, but
no successor Agent shall in any event be liable or responsible for any actions
of its predecessor. If the Agent resigns or is removed and no successor is
appointed, the rights and obligations of such Agent shall be automatically
assumed by the Lenders and (i) the Borrowers shall be directed to make all
payments due each Lender hereunder directly to such Lender and (ii) the Agent's
rights in the Collateral Documents shall be assigned without representation,
recourse or warranty to the Lenders as their interests may appear.
Section 11.2. Rights as a Lender. The Agent has and reserves all of the
rights, powers and duties hereunder and under its Notes, Collateral Documents
and the other Loan Documents
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as any Lender may have and may exercise the same as though it were not the Agent
and the terms "Lender" or "Lenders" as used herein and in all of such documents
shall, unless the context otherwise expressly indicates, include the Agent in
its individual capacity as a Lender.
Section 11.3. Standard of Care. The Lenders acknowledge that they have
received and approved copies of the Collateral Documents and such other
information and documents concerning the transactions contemplated and financed
hereby as they have requested to receive and/or review. The Agent makes no
representations or warranties of any kind or character to the Lenders with
respect to the validity, enforceability, genuineness, perfection, value, worth
or collectibility hereof or of the Notes, the Collateral Documents or the other
Loan Documents or of the liens provided for thereby or of any other documents
called for hereby or thereby or of the Collateral. The Agent need not verify the
worth or existence of the Collateral. Neither the Agent nor any director,
officer employee, agent or representative thereof (including any security
trustee therefor) shall in any event be liable for any clerical errors or errors
in judgment, inadvertence or oversight, or for action taken or omitted to be
taken by it or them hereunder or under the Collateral Documents or in connection
herewith or therewith except for its or their own gross negligence or willful
misconduct. The Agent shall incur no liability under or in respect of this
Agreement or the Collateral Documents by acting upon any notice, certificate,
warranty, instruction or statement (oral or written) of anyone (including anyone
in good faith believed by it to be authorized to act on behalf of any Borrower),
unless it has actual knowledge of the untruthfulness of same. The Agent may
execute any of its duties hereunder by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders for the default or
misconduct of any such agents or attorneys-in-fact selected with reasonable
care. The Agent shall be entitled to advice of counsel concerning all matters
pertaining to the agencies hereby created and its duties hereunder, and shall
incur no liability to anyone and be fully protected in acting upon the advice of
such counsel. The Agent shall be entitled to assume that no Default or Event of
Default exists unless notified to the contrary by a Lender. The Agent shall in
all events be fully protected in acting or failing to act in accord with the
instructions of the Lenders. Upon the occurrence of an Event of Default
hereunder, the Agent shall take such action with respect to the enforcement of
its liens on the Collateral and the preservation and protection thereof as it
shall be directed to take by the Lenders but unless and until the Lenders have
given such direction the Agent shall take or refrain from taking such actions as
it deems appropriate and in the best of interest of all Lenders. The Agent shall
in all cases be fully justified in failing or refusing to act hereunder unless
it shall be indemnified to its reasonable satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Agent may treat the owner of
any Note as the holder thereof until written notice of transfer shall have been
filed with it signed by such owner in form satisfactory to the Agent. Each
Lender acknowledges that it has independently and without reliance on the Agent
or any other Lender and based upon such information, investigations and
inquiries as it deems appropriate made its own credit analysis and decision to
extend credit to the Borrowers. It shall be the responsibility of each Lender to
keep itself informed as to the creditworthiness of the Borrowers and the
Subsidiaries and the Agent shall have no liability to any Lender with respect
thereto.
Section 11.4. Costs and Expenses. Each Lender agrees to reimburse the
Agent for all out-of-pocket costs and expenses suffered or incurred by the Agent
or any security trustee in
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performing its duties hereunder and under the Collateral Documents, or in the
exercise of any right or power imposed or conferred upon the Agent hereby or
thereby, to the extent that the Agent is not promptly reimbursed for same by the
Borrowers or out of the Collateral, all such costs and expenses to be borne by
the Lenders ratably in accordance with the amounts of their respective
Commitments. If any Lender fails to reimburse the Agent for its share of any
such costs and expenses, such costs and expenses shall be paid pro rata by the
remaining Lenders, but without in any manner releasing the defaulting Lender
from its liability hereunder.
Section 11.5. Indemnity. The Lenders shall ratably indemnify and hold the
Agent, and its directors, officers, employees, agents or representatives
(including as such any security trustee therefor) harmless from and against any
liabilities, losses, costs or expenses suffered or incurred by them hereunder or
under the Collateral Documents or in connection with the transactions
contemplated hereby or thereby, regardless of when asserted or arising, except
to the extent they are promptly reimbursed for the same by the Borrowers or out
of the Collateral and except to the extent that any event giving rise to a claim
was caused by the gross negligence or willful misconduct of the party seeking to
be indemnified. If any Lender defaults in its obligations hereunder, its share
of the obligations shall be paid pro rata by the remaining Lenders, but without
in any manner releasing the defaulting Lender from its liability hereunder.
SECTION 12. MISCELLANEOUS.
Section 12.1. Payments Free of Withholding. Each payment by the Borrowers
under this Agreement or the Notes shall be made without withholding for or on
account of any present or future taxes (other than overall net income taxes on
the recipient) imposed by or within the jurisdiction in which any Borrower is
domiciled, any jurisdiction from which any Borrower makes any payment, or any
political subdivision or taxing authority thereof or therein. If any such
withholding is so required, the relevant Borrower shall make the withholding,
pay the amount withheld to the appropriate governmental authority before
penalties attached thereto or interest accrues thereon and forthwith pay such
additional amount as may be necessary to ensure that the net amount actually
received by each Lender and the Agent free and clear of such taxes (including
such taxes on such additional amount) is equal to the amount which that Lender
or the Agent (as the case may be) would have received had such withholding not
been made. If the Agent or any Lender pays any amount in respect of any such
taxes, penalties or interest the relevant Borrower shall reimburse the Agent or
that Lender for that payment on demand in the currency in which such payment was
made. If the relevant Borrower pays any such taxes, penalties or interest, it
shall deliver official tax receipts evidencing that payment or certified copies
thereof to the Lender or Agent on whose account such withholding was made (with
a copy to the Agent if not the recipient of the original) on or before the
thirtieth day after payment.
Section 12.2. Holidays. If any payment of principal or interest on any of
the Notes or any fees shall fall due on a Saturday, Sunday or on another day
which is a legal holiday for lenders in the State of Illinois, (i) interest at
the rates such Notes bear for the period prior to maturity shall continue to
accrue on such principal from the stated due date thereof to and including the
next succeeding Business Day and (ii) such principal, interest and fees shall be
payable on such succeeding Business Day.
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Section 12.3. No Waiver, Cumulative Remedies. No delay or failure on the
part of any Lender in the exercise of any power or right shall operate as a
waiver thereof, nor as an acquiescence in any default nor preclude any other or
further exercise thereof, or the exercise of any other power or right, and the
rights and remedies hereunder of the Lenders are cumulative to, and not
exclusive of, any rights or remedies which any of them would otherwise have.
Section 12.4. Waivers, Modifications and Amendments. Any provision
hereof or of the Notes or the Collateral Documents may be amended, modified,
waived or released and any Default or Event of Default and its consequences may
be rescinded and annulled upon the written consent of the Lenders. No amendment,
modification or waiver of the Agent's protective provisions shall be effective
without the prior written consent of the Agent.
Section 12.5. Costs and Expenses. The Borrowers jointly and severally
agree to pay on demand all reasonable out-of-pocket costs and expenses of the
Agent and each Lender in connection with the negotiation, preparation,
execution, delivery, recording or filing or release of this Agreement, the
Notes, the Collateral Documents and the other instruments and documents to be
delivered hereunder or thereunder or in connection with the transactions
contemplated hereby or thereby or in connection with any consents hereunder or
thereunder or waivers or amendments hereto or thereto, including the fees and
out-of-pocket expenses of counsel for the Agent and each Lender with respect to
all of the foregoing, and all recording, filing, title insurance or other fees,
costs and taxes incident to perfecting a lien upon the collateral security for
the Notes and the other Obligations, and all reasonable costs and expenses
(including reasonable attorneys' fees) incurred by the Agent, the Lenders or any
other holders of a Note in connection with a default or the enforcement of this
Agreement, the Notes, the Collateral Documents, the other Loan Documents and the
other instruments and documents to be delivered hereunder or thereunder and all
costs, fees and taxes of the types enumerated above incurred in supplementing
(and recording or filing supplements to) the Collateral Documents in connection
with assignments contemplated by Section 12.17 hereof (collectively, "Security
Assignment Costs") if counsel to the Agent believes such supplements to be
appropriate or desirable. The Borrowers agree to indemnify and save the Lenders,
the Agent and any security trustee for the Lenders harmless from any and all
liabilities, losses, costs and expenses (including any of such arising out of
the violation or the operation of any environmental law) incurred by the Lenders
or the Agent in connection with any action, suit or proceeding brought against
the Agent, security trustee or any Lender by any person which arises out of the
transactions contemplated or financed hereby or by the Notes, the Collateral
Documents or out of any action or inaction by the Agent, any security trustee or
any Lender hereunder or thereunder, except for such thereof as is caused by the
gross negligence or willful misconduct of the party indemnified and except for
costs or liabilities incurred in suits which are exclusively among the Lenders
or the Lenders and the Agent. The provisions of this Section 12.5 and the
protective provisions of Section 2 hereof shall survive payment of the Notes.
Section 12.6. Documentary Taxes. The Borrowers jointly and severally
agree that they will pay on demand any documentary, stamp or similar taxes
payable in respect of this Agreement, the Notes or any Collateral Document,
including interest and penalties, in the event
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any such taxes are assessed, irrespective of when such assessment is made and
whether or not any credit to it is then in use or available.
Section 12.7. Survival of Representations, Indemnities and Agent
Provisions. All representations and warranties made herein or in the Collateral
Documents or in certificates given pursuant hereto or thereto shall survive the
execution and delivery of this Agreement, the Collateral Documents and the
Notes, and shall continue in full force and effect with respect to the date as
of which they were made as long as any credit is in use or available hereunder.
All indemnities and all other provisions relative to reimbursement to the
Lenders of amounts sufficient to protect the yield of the Lenders with respect
to the Loans, including, but not limited to, Section 2.7 and Section 2.8 hereof,
shall survive the termination of this Agreement and the payment of the Loans and
the Notes. The provisions of Sections 3.5 and 9 hereof shall survive the
termination of this Agreement and the payment of the Loans and the Notes.
Section 12.8. Construction. The parties hereto acknowledge that all
parties hereto contributed to the negotiation of this Agreement.
Section 12.9. Accounting Principles. All computations of compliance with
the terms hereof shall be made on the basis of generally accepted principles of
accounting as in effect as of the date of this Agreement applied in a manner
consistent with those used in the preparation of the financial statements of
Badger and the Subsidiaries referred to in the first sentence of Section 5.6
hereof, but subject nevertheless to the express variations from such principles
provided for herein.
Section 12.10. Addresses for Notices. Except as otherwise specified
herein, all notices hereunder shall be in writing (including cable, telecopy or
telex) and shall be given to the relevant party at its address, telecopier
number or telex number set forth below, in the case of the Borrowers, or on the
appropriate signature page hereof, in the case of the Banks and the Agent, or
such other address, telecopier number or telex number as such party may
hereafter specify by notice to the Agent and the Borrowers, given by United
States certified or registered mail, by telecopy or by other telecommunication
device capable or creating a written record of such notice and its receipt.
Notices hereunder to the Borrowers shall be addressed to:
200 West Front Street
Peshtigo, Wisconsin 54157
Attention: George Zimmerman
Telephone: (715) 582-5334
Telecopy: (715) 582-5242
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section and a confirmation of such telecopy has been received
by the sender, (ii) if given by telex, when such telex is transmitted to the
telex number specified in this Section and the answerback is received by sender,
(iii) if given by mail, five (5) days after such communication is deposited in
the mail, certified or registered with return receipt requested, addressed as
aforesaid or (iv) if given by any other means, when delivered at the addresses
specified in this Section; provided that any notice given pursuant to Section 1
hereof shall be effective only upon receipt.
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Section 12.11. Headings. Article and Section headings used in this
Agreement are for convenience of reference only and are not a part of this
Agreement for any other purpose.
Section 12.12. Severability of Provisions. Any provision of this
Agreement which is unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. All rights, remedies
and powers provided in this Agreement and the Notes may be exercised only to the
extent that the exercise thereof does not violate any applicable mandatory
provisions of law, and all the provisions of this Agreement and the Notes are
intended to be subject to all applicable mandatory provisions of law which may
be controlling and to be limited to the extent necessary so that they will not
render this Agreement or the Notes invalid or unenforceable.
Section 12.13. Counterparts. This Agreement may be executed in any number
of counterparts, and by different parties hereto on separate counterparts, and
all such counterparts taken together shall be deemed to constitute one and the
same instrument.
Section 12.14. Binding Nature and Governing Law. This Agreement shall be
binding upon the Borrowers and its successors and assigns, and shall inure to
the benefit of the Lenders and the benefit of their successors and assigns,
including any subsequent holder of an interest of the Notes. This Agreement and
the Notes and the rights and duties of the parties hereto shall be construed and
determined in accordance with, and shall be governed by the internal laws of the
State of Illinois without regard to principles of conflicts of law. The
Borrowers may not assign its rights hereunder without the written consent of the
Lenders.
Section 12.15. Entire Understanding. This Agreement, together with the
Notes and the Collateral Documents, constitutes the entire understanding of the
parties with respect to the subject matter hereof and any prior agreements,
whether written or oral, with respect thereto are superseded hereby.
Section 12.16. Sharing of Set-Off and Information. Each Lender agrees
with each other Lender that if such Lender receives and retains any payment of
principal or interest, whether by set-off or application of deposit balances or
otherwise ("Set-off"), on any of its Loans outstanding under this Agreement in
excess of its ratable share of such payments on all Loans, then such Lender
shall purchase for cash at face value, but without recourse, ratably from each
of the other Lenders such amount of the Loans held by each such other Lender (or
interest therein) as shall be necessary to cause such Lender to share such
excess payment ratably with all the other Lenders; provided, however, that if
any such purchase is made by any Lender, and if such excess payment or part
thereof is thereafter recovered from such purchasing Lender, the related
purchases from the other Lenders shall be rescinded ratably and the purchase
price restored as to the portion of such excess payment so recovered, but
without interest. Each Lender's ratable share of any such Set-off shall be
determined by the proportion that the aggregate amount of Loans then due and
payable to such Lender bears to the total aggregate amount of the Loans then due
and payable to all the Lenders. Each Lender agrees with each other Lender that
it will use its best efforts to deliver to all the Lenders any information
concerning any Borrower which a Lender may receive from any Borrower; provided,
that no Lender shall incur any liability to any other Lender for failing to
deliver any such information.
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Section 12.17. Participations. Any Lender may grant participations in its
extensions of credit hereunder to any other bank or other lending institution (a
"Participant") provided that (i) no Participant shall thereby acquire any direct
rights under this Agreement, (ii) no Lender shall agree with a Participant not
to exercise any of its rights hereunder without the consent of such Participant
except for rights which under the terms hereof may only be exercised by all
Lenders and (iii) no sale of a participation in extensions of credit shall in
any manner relieve the selling Lender of its obligations hereunder.
Section 12.18. Assignment of Commitments by Lenders. Each Lender shall
have the right at any time, with the prior written consent of the Agent and,
prior to the occurrence of a Default or Event of Default hereunder with the
prior written consent of Badger (which consent shall not be unreasonably
withheld), to sell, assign, transfer or negotiate all or any part of its
Commitment to one or more commercial banks or other financial institutions. Upon
any such assignment and its notification to the Agent, the assignee shall become
a Lender hereunder, all Loans and the Commitment it thereby holds shall be
governed by all the terms and conditions hereof, and the Lender granting such
assignment shall have its Commitment and its obligations and rights in
connection therewith, reduced by the amount of such assignment. Upon the
effectiveness of any such assignment the Borrower shall execute new Notes
payable to the Assignor and Assignee in the amount of their new Commitments.
Section 12.19. Set Off. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of any Event of Default, each Lender and each subsequent
holder of any Note is hereby authorized by the Borrower at any time or from time
to time, without notice to the Borrowers or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts, and in whatever currency denominated) and any
other indebtedness at any time held or owing by that Lender or that subsequent
holder to or for the credit or the account of any Borrower, whether or not
matured, against and on account of the obligations and liabilities of the
Borrowers to that Bank or that subsequent holder under the Loan Documents,
including, but not limited to, all claims of any nature or description arising
out of or connected with the Loan Documents, irrespective of whether or not (a)
that Lender or that subsequent holder shall have made any demand hereunder or
(b) the principal of or the interest on the Loans or Notes and other amounts due
hereunder shall have become due and payable pursuant to Section 8 and although
said obligations and liabilities, or any of them, may be contingent or
unmatured.
Section 12.20. Terms of Collateral Documents not Superseded. Nothing
contained herein shall be deemed or construed to permit any act or omission
which is prohibited by the terms of any Collateral Document, the covenants and
agreements contained herein being in addition to and not in substitution for the
covenants and agreements contained in the Collateral Documents.
Section 12.21. PERSONAL JURISDICTION.
(a) NON-EXCLUSIVE JURISDICTION. THE BORROWERS HEREBY SUBMIT TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS AND OF AN ILLINOIS STATE COURT SITTING IN THE CITY OF
CHICAGO
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FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE COLLATERAL DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. THE BORROWERS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(b) OTHER JURISDICTION. THE BORROWERS AGREE THAT THE AGENT AND EACH OF
THE LENDERS SHALL HAVE THE RIGHT TO PROCEED AGAINST THE BORROWERS OR ITS
PROPERTY ("PROPERTY") IN A COURT IN ANY LOCATION TO ENABLE THE Agent OR ANY
LENDER TO REALIZE ON PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF THE AGENT OR ANY LENDER. THE BORROWERS AGREE THAT THEY WILL
NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY proceeding BROUGHT IN ACCORDANCE
WITH THIS PROVISION BY THE AGENT OR ANY LENDER TO REALIZE ON PROPERTY, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE AGENT OR ANY LENDER. THE
BORROWERS WAIVE ANY OBJECTION THAT THEY MAY HAVE TO THE LOCATION OF THE COURT IN
WHICH THE AGENT OR ANY LENDER HAS COMMENCED A PROCEEDING DESCRIBED IN THIS
SUBSECTION.
SECTION 12.22. WAIVER OF JURY TRIAL. THE BORROWERS, THE AGENT AND EACH
LENDER EACH WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN THE AGENT OR ANY
LENDER AND THE BORROWERS ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION THEREWITH OR THE TRANSACTIONS RELATED THERETO. EACH OF THE
BORROWERS, THE AGENT AND THE LENDERS HEREBY AGREE AND CONSENT THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY AND THAT ANY OF THEM MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
SECTION 12.23. ADVICE OF COUNSEL. THE BORROWERS REPRESENT TO THE AGENT
AND EACH LENDER THAT IT HAS DISCUSSED THIS AGREEMENT WITH ITS LAWYERS.
-42-
<PAGE>
Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall be a contract between us for the purposes hereinabove set forth.
Dated as of January 29, 1999.
BADGER PAPER MILLS, INC.
By /s/
Name_____________________________
Title____________________________
BADGER PAPER MILLS FLEXIBLE PACKAGING
DIVISION, INC. (formerly known as
PLASTECHS, INC.)
By /s/
Name_____________________________
Title____________________________
Accepted and Agreed to at Chicago, Illinois as of the day and year last
above written.
Amount and Percentage of Commitment:
$12,000,000 HARRIS TRUST AND SAVINGS BANK
(100%)
By /s/
Its Vice President
111 West Monroe Street
Chicago, Illinois 60690
Attention: ____________________
LIBOR Funding Office:
Nassau Branch
c/o 111 West Monroe Street
Chicago, Illinois 60690
-43-
<PAGE>
EXHIBIT A
REVOLVING CREDIT NOTE
Chicago, Illinois
$------------------------------------ ------------, -----
On the Termination Date, for value received, the undersigned,
_____________________, a _________________ corporation (the "Borrower"), hereby
promises to pay to the order of ______________________ (the "Lender"), at the
principal office of Harris Trust and Savings Bank, as Agent in Chicago,
Illinois, the principal sum of (i) ______________________ Dollars ($_________),
or (ii) such lesser amount as may at the time of the maturity hereof, whether by
acceleration or otherwise, be the aggregate unpaid principal amount of all loans
owing from the Borrower to the Lender under the Revolving Credit provided for in
the Credit Agreement hereinafter mentioned.
This Note evidences loans constituting part of a "Domestic Rate Portion"
and "LIBOR Portions" as such terms are defined in that certain Amended and
Restated Credit Agreement dated as of _______________, 1999 by and among the
Borrower, Harris Trust and Savings Bank, as Agent and others (the "Credit
Agreement") made and to be made to the Borrower by the Lender under the
Revolving Credit provided for under the Credit Agreement, and the Borrower
hereby promises to pay interest at the office specified above on each loan
evidenced hereby at the rates and times specified therefor in the Credit
Agreement.
Each loan made under the Revolving Credit provided for in the Credit
Agreement by the Lender to the Borrower against this Note, any repayment of
principal hereon, the status of each such loan from time to time as part of the
Domestic Rate Portion or a LIBOR Portion and the interest rates and interest
periods applicable thereto shall be endorsed by the holder hereof on the reverse
side of this Note or recorded on the books and records of the holder hereof
(provided that such entries shall be endorsed on the reverse side hereof prior
to any negotiation hereof) and the Borrower agrees that in any action or
proceeding instituted to collect or enforce collection of this Note, the entries
so endorsed on the reverse side hereof or recorded on the books and records of
the Lender shall be prima facie evidence of the unpaid balance of this Note and
the status of each Loan from time to time as part of a Domestic Rate Portion or
a LIBOR Portion and the interest rates and interest periods applicable thereto.
This Note is issued by the Borrower under the terms and provisions of the
Credit Agreement and is secured, inter alia, by certain Security Agreements,
Mortgages, Deed of Trust and other instruments and documents from the Borrower,
and this Note and the holder hereof are entitled to all of the benefits and
security provided for thereby or referred to therein, equally and ratably with
all other notes thereby secured, to which reference is hereby made for a
statement thereof. This Note may be declared to be, or be and become, due prior
to its expressed maturity upon the occurrence of an event of default specified
in the Credit Agreement, voluntary prepayments may be made hereon, and certain
prepayments are required to be made hereon, all in the events, on the terms and
with the effects provided in the Credit Agreement. All capitalized
<PAGE>
terms used herein without definition shall have the same meanings herein as such
terms have in the Credit Agreement.
This Note is issued in substitution for and in replacement of that
certain Revolving Credit Note dated as of June 30, 1993, issued by the Borrower
in favor of the Lender in the face principal amount of $_____________.
This Note shall be construed in accordance with, and governed by, the
internal laws of the State of Illinois without regard to principles of conflict
of law.
All amounts payable under the terms of the Note shall be payable with
collection costs, including attorney's fees, and without relief from valuation
and appraisement laws.
The Borrower and any endorsers severally hereby waive demand, presentment
for payment and notice of nonpayment of this Note and each of them hereby
consents to any renewals or extensions of the time of payment of this Note
without notice.
--------------------------------------
By
Its___________________________________
A-2
<PAGE>
EXHIBIT B
THE SUBSIDIARIES
JURISDICTION OF
NAME INCORPORATION PERCENTAGE
OWNERSHIP
Badger Paper Mills Flexible Wisconsin 100%
Packaging Division, Inc.
Peshtigo Power L.L.C. Wisconsin 100%
<PAGE>
EXHIBIT C
FORM OF OPINION
_______________, 1999
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60690
Gentlemen:
We have served as counsel to Badger Paper Mills, Inc., a Wisconsin
corporation ("Badger") and Badger Paper Mills Flexible Packaging Division, Inc.,
a Wisconsin corporation (formerly known as PlasTechs, Inc., a Wisconsin
corporation) ("PlasTechs") (collectively, Badger and PlasTechs are hereinafter
sometimes referred to as the "Borrowers" and individually each is sometimes
referred to as a "Borrower"), in connection with the credit facilities being
made available by you (the "Lenders") to the Borrowers. As such counsel, we have
supervised the taking of the corporate proceedings necessary to authorize the
execution and delivery of, and have examined executed originals of, the
instruments and documents identified on Exhibit A to this letter (collectively
the "Loan Documents", individual Loan Documents and other capitalized terms used
below being hereinafter referred to by the designations appearing on Exhibit A).
As counsel to the Borrowers, we are familiar with the articles of incorporation,
charter, by-laws and any other agreements under which each of the Borrowers is
organized. We have also examined such other instruments and records and inquired
into such other factual matters and matters of law as we deem necessary or
pertinent to the formulation of the opinions hereinafter expressed.
Based upon the foregoing and upon our examination of the articles of
incorporation, charter and by-laws of each of the Borrowers, we are of the
opinion that:
1. Badger is validly existing as a corporation in good standing under the
laws of the State of Wisconsin; and PlasTechs is validly existing as a
corporation in good standing under the laws of the State of Wisconsin. Each of
the Borrowers has all requisite corporate power and authority to own and operate
its properties and to carry on its business as now conducted and as contemplated
in the Credit Agreement. Each Borrower is duly licensed or qualified and in good
standing in each jurisdiction where any of the property subject to the lien of
the Collateral Documents is located or where a lien thereon is required to be
perfected or enforced, or where the failure to be so licensed or qualified would
have a material adverse effect on the business, operations or assets of such
Borrower.
2. Each Borrower has full right, power and authority to borrow from you,
to mortgage, pledge, assign and otherwise encumber its assets and properties as
collateral security for such borrowings, to execute and deliver the Loan
Documents executed by it and to observe and perform all the matters and things
therein provided for. The execution and delivery of the Loan
<PAGE>
Documents executed by the Borrowers do not, nor will the observance or
performance of any of the matters or things therein provided for, contravene any
provision of law or of the articles of incorporation, charter or by-laws of the
Borrowers (there being no other agreements under which the Borrowers are
organized) or, to the best of our knowledge after due inquiry, of any covenant,
indenture or agreement binding upon or affecting the Borrowers or any of their
respective properties or assets.
3. The Loan Documents executed by each of the Borrowers have been duly
authorized by all necessary corporate action (no stockholder approval being
required), have been executed and delivered by the proper officers of each of
the Borrowers and constitute valid and binding agreements of each of the
Borrowers enforceable against each of them in accordance with their respective
terms, except as such terms may be limited by bankruptcy, insolvency or similar
laws and legal or equitable principles affecting or limiting the enforcement of
creditors' rights generally.
4. The Collateral Documents are adequate to create and provide for the
liens and security interests contemplated thereby for the benefit and security
of all the indebtedness secured thereby. The foregoing opinion assumes that the
Badger Mortgage and the PlasTechs Mortgage and appropriate financing statements
have been duly filed in the proper public offices. We express no opinion herein
with respect to the priority of the liens and security interest created by the
Collateral Documents over the rights of other creditors of the respective
Borrowers. However, in the course of our representations of the Borrowers, no
fact has come to our attention which would indicate that any other creditors
would have priority over the liens and security interests created by the
Collateral Documents.
5. No order, authorization, consent, license or exemption of, or filing
or registration with, any court or governmental department, agency,
instrumentality or regulatory body, whether local, state or federal (except for
such of the foregoing which have already been obtained), is or will be required
in connection with the lawful execution and delivery of the Loan Documents or
the observance and performance by the Borrowers of any of the terms thereof.
6. To the best of our knowledge after due inquiry and except as set forth
in the Credit Agreement, there is no action, suit, proceeding or investigation
at law or in equity before or by any court or public body pending or threatened
against or affecting any of the Borrowers or any of their respective assets and
properties which, if adversely determined, could result in any material adverse
change in the properties, business, operations or financial condition of such
Borrower or in the value of the collateral security for the Lenders' loans and
other credit accommodations to the Borrowers.
In rendering the opinions expressed above, we have examined originals, or
copies of originals certified to our satisfaction, of such agreements,
documents, certificates and other statements of government officials and
corporate officers and such other papers and evidence as we have deemed relevant
and necessary as a basis for these opinions. We have assumed the authenticity of
all documents submitted to us as originals and the conformity with the original
documents of any copies thereof submitted to us for our examination.
C-2
<PAGE>
Our opinions expressed above are limited to the laws of the State of
Wisconsin, the corporate laws of the State of Delaware and the federal laws of
the United States of America. In expressing our opinion as to the validity and
enforceability of those Loan Documents governed by the laws of the State of
Illinois, we have assumed that the laws of the State of Illinois do not differ
in any respect material to our opinion from the laws of the State of Wisconsin.
Respectfully submitted,
C-3
<PAGE>
Exhibit A
THE LOAN DOCUMENTS
(All Loan Documents are dated as of January 29, 1999. Harris Trust and
Savings Bank is referred to below as the "Agent".)
1. Amended and Restated Credit Agreement by and between the
Borrowers, the Lenders and the Agent (the "Credit Agreement").
2. Revolving Credit Note of Badger payable to the order of Harris
Trust and Savings Bank in the principal amount of $12,000,000.
3. Revolving Credit Note of PlasTechs payable to the order of Harris
Trust and Savings Bank in the principal amount of $12,000,000.
4. Security Agreement from Badger to the Agent (the "Badger Security
Agreement").
5. Security Agreement from PlasTechs to the Agent (the "PlasTechs
Security Agreement").
6. Security Agreement Re: Investment Account from Badger to the Agent
(the "Badger Investment Security Agreement") (the Badger Security
Agreement, the Badger Security Agreement, the PlasTechs Security
Agreement and the Badger Investment Security Agreement being
hereinafter collectively referred to as the "Security
Agreements").
7. Mortgage and Security Agreement with Assignment of Rents relating
to property in Oconto County, Wisconsin from PlasTechs to the
Agent (the "Oconto Mortgage").
8. The Security Agreements and the Oconto Mortgage being hereinafter
collectively referred to as the "Collateral Documents").
<PAGE>
EXHIBIT D
BADGER PAPER MILLS, INC.
COMPLIANCE CERTIFICATE
FOR THE PERIOD ENDING __________
To: Harris Trust and Savings Bank
as Agent under, and the Lenders
party to the Credit Agreement
described below
This Compliance Certificate is furnished to the Lenders pursuant to the
requirements of Section 7.5 of the Credit Agreement dated as of January 29,
1999, by and among Badger Paper Mills, Inc. ("Badger") Badger Paper Mills
Flexible Packaging Division, Inc., Harris Trust and Savings Bank as agent
thereunder (the "Agent") and the Lenders named therein (the "Credit Agreement").
Unless otherwise defined herein, the terms used in this Compliance Certificate
have the meanings ascribed thereto in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ______________ of the Badger;
2. We have reviewed the terms of the Credit Agreement and we have made,
or have caused to be made under our supervision, a detailed review of the
transactions and conditions of Badger and the Subsidiaries during the accounting
period covered by the financial statements being furnished concurrently with
this Certificate;
3. The examinations described in paragraph 2 did not disclose, and we
have no knowledge of, the existence of any condition or the occurrence of any
event which constitutes a Default or an Event of Default at any time during or
at the end of the accounting period covered by the accompanying financial
statements or as of the date of this Certificate, except as set forth
immediately below;
4. The financial statements required by Section 7.5 of the Credit
Agreement and being furnished to you concurrently with this Certificate are
true, correct and complete as of the dates and for the periods covered thereby;
and
5. Schedule I attached hereto sets forth financial data and computations
evidencing Badger's compliance with certain covenants of the Credit Agreement,
all of which data and computations are true, complete and correct and have been
made in accordance with the relevant Sections of the Credit Agreement.
<PAGE>
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which Badger has taken, is taking, or proposes to take
with respect to each such condition or event:
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
The foregoing certifications, together with the computations set forth in
Schedule I attached hereto and the financial statements furnished concurrently
with this Certificate in support hereof, are made and delivered as of this
______ day of _______________, 19___.
----------------------------------------------
Title for Badger:
----------------------------------------------
(Type or Print Name)
D-2
CONSENT OF INDEPENDENT ACCOUNTANT
Board of Directors
Badger Paper Mills, Inc. and Subsidiaries
We have issued our reports dated January 29, 1999, accompanying the consolidated
financial statements and schedules incorporated by reference in the Annual
Report of Badger Paper Mills, Inc. and Subsidiaries on Form 10-K for the years
ended December 31, 1998 and 1997. We hereby consent to the incorporation by
reference of said reports in the Registration Statements of Badger Paper Mills,
Inc. and Subsidiaries on Forms S-8 (File No. 333-01671, effective March 13, 1996
and File No. 333-01673, effective March 13, 1996).
/s/ Grant Thornton LLP
Appleton, Wisconsin
March 30, 1999
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statements of
Badger Paper Mills, Inc. and Subsidiaries on Form S-8 (File Nos. 333-01671 and
333-01673) of our report dated February 4, 1997, on our audit of the
consolidated financial statements and financial statement schedule of Badger
Paper Mills, Inc. and Subsidiaries for the year ended December 31, 1996, which
report is included in this Annual Report on form 10-K.
/s/ PricewaterhouseCoopers LLP
Milwaukee, Wisconsin
March 31, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE FINANCIAL
STATEMENTS OF BADGER PAPER MILLS, INC. AS OF AND FOR THE TWELVE MONTHS ENDED
DECEMBER 31, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 2229
<SECURITIES> 996
<RECEIVABLES> 5662
<ALLOWANCES> 0
<INVENTORY> 6201
<CURRENT-ASSETS> 17854
<PP&E> 65088
<DEPRECIATION> (37797)
<TOTAL-ASSETS> 47999
<CURRENT-LIABILITIES> 10508
<BONDS> 0
0
0
<COMMON> 2700
<OTHER-SE> 200
<TOTAL-LIABILITY-AND-EQUITY> 47999
<SALES> 65727
<TOTAL-REVENUES> 65727
<CGS> 58505
<TOTAL-COSTS> 62836
<OTHER-EXPENSES> (946)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1196
<INCOME-PRETAX> 2641
<INCOME-TAX> 897
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<NET-INCOME> 1744
<EPS-PRIMARY> .89
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</TABLE>
