Exhibit 10.39
FIFTH AMENDED AND RESTATED
CREDIT, REIMBURSEMENT AND SECURITY AGREEMENT
Originally dated as of July 15, 1994
Restated as of July 12, 2002
among
MULTI-COLOR CORPORATION
the Company,
THE SUBSIDIARIES OF THE COMPANY
and
THE LENDERS IDENTIFIED HEREIN
and
PNC BANK, NATIONAL ASSOCIATION
the Agent
and
PNC CAPITAL MARKETS, INC.
the Lead Arranger
FIFTH AMENDMENT AND RESTATEMENT
MULTI-COLOR CORPORATION, an Ohio corporation (the "Company"), the
Subsidiaries (as defined herein) of the Company, the Lenders (as defined
herein), PNC BANK, NATIONAL ASSOCIATION, as agent for the Lenders (the "Agent"),
and PNC CAPITAL MARKETS, INC., as Lead Arranger, hereby agree as follows
effective as of July 12, 2002 ("Effective Date"):
1. RECITALS.
1.1 Effective as of June 6, 2000, the Company, PNC Bank, National
Association, certain financial institutions party thereto, and the
Agent entered into a Fourth Amended and Restated Credit, Reimbursement
and Security Agreement (as amended, the "Fourth Restated Credit
Agreement").
1.2 The Company has requested that the Lenders amend and restate the
Fourth Restated Credit Agreement and the Lenders are willing to do so
subject to and in accordance with the terms of the attached Fifth
Amended and Restated Credit, Reimbursement and Security Agreement (the
"Credit Agreement").
2. AMENDMENT AND RESTATEMENT. Effective as of the Effective Date, the Fourth
Restated Credit Agreement will be amended and restated in its entirety as
follows:
[Intentionally Left Blank]
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TABLE OF CONTENTS
PAGE
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1. DEFINITIONS............................................................... 3
1.1 DEFINED TERMS.................................................... 3
1.2 OTHER ACCOUNTING DEFINITIONAL PROVISIONS......................... 23
1.3 OTHER DEFINITIONAL PROVISIONS.................................... 23
2. CREDIT FACILITIES......................................................... 23
2.1 REVOLVING CREDIT FACILITY........................................ 23
2.2 NON-REVOLVING CREDIT FACILITY.................................... 24
2.2A SWINGLINE LOANS SUBFACILITY...................................... 25
2.2B TERM LOAN........................................................ 26
2.3 MANNER OF BORROWING.............................................. 27
2.3.1 REVOLVING BORROWINGS.................................... 27
2.3.2 NON-REVOLVING BORROWINGS................................ 28
2.3.3 SWINGLINE BORROWINGS.................................... 29
2.4 ADDITIONAL PROVISIONS REGARDING FUNDING.......................... 29
2.5 CONVERSIONS AND CONTINUATION OF ADVANCES......................... 29
2.5.1 OPTIONAL CONVERSION..................................... 29
2.5.2 CONTINUATION............................................ 30
2.5.3 AUTOMATIC CONVERSION.................................... 31
2.6 PREPAYMENT OF CREDIT FACILITIES.................................. 31
2.6.1 OPTIONAL PREPAYMENT..................................... 31
2.6.2 MANDATORY PREPAYMENT.................................... 32
2.7 INTEREST ON THE ADVANCES......................................... 33
2.7.1 INTEREST ON REVOLVING CREDIT LOANS...................... 33
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2.7.2 INTEREST ON SWINGLINE LOANS............................. 33
2.7.3 INTEREST ON NON-REVOLVING CREDIT LOANS AND TERM LOAN.... 33
2.7.4 NON-REVOLVING CREDIT LOANS PAYMENT DATES................ 34
2.7.5 INTEREST PAYMENT DATES.................................. 34
2.7.6 DEFAULT RATE............................................ 34
2.8 TERMINATION OR REDUCTION OF COMMITMENTS BY THE COMPANY........... 35
2.9 RECORDS.......................................................... 35
2.10 LETTER OF CREDIT FACILITIES...................................... 35
2.10.1 ISSUANCE OF SCOTTSBURG ALTERNATE LETTER OF CREDIT....... 35
2.10.2 [RESERVED].............................................. 36
2.10.3 ISSUANCE OF 1997 SCOTTSBURG LETTER OF CREDIT............ 36
2.10.4 ISSUANCE OF MCC-BATAVIA ALTERNATE LETTER OF CREDIT...... 36
2.10.5 REIMBURSEMENT AND OTHER PAYMENTS........................ 37
2.10.6 TRANSFER; REDUCTION; REINSTATEMENT...................... 39
2.10.7 OBLIGATIONS ABSOLUTE.................................... 40
2.10.8 INDEMNIFICATION......................................... 40
2.10.9 LIABILITY OF AGENT...................................... 41
2.11 STANDBY LETTER OF CREDIT FACILITY................................ 42
2.11.1 STANDBY LETTER OF CREDIT COMMITMENT..................... 42
2.11.2 TERMS OF STANDBY LETTERS OF CREDIT...................... 43
2.11.3 PROCEDURE FOR STANDBY LETTERS OF CREDIT................. 43
2.11.4 DRAWING AND REIMBURSEMENT............................... 44
2.11.5 REIMBURSEMENT OBLIGATION OF COMPANY FOR STANDBY
LETTER OF CREDIT DISBURSEMENTS.......................... 45
2.11.6 COMPANY'S OBLIGATIONS ABSOLUTE.......................... 45
2.11.7 COLLATERAL IN THE EVENT OF DEFAULT...................... 47
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2.11.8 LIABILITY AND INDEMNIFICATION OF THE AGENT.............. 47
2.11.9 GENERAL PROVISIONS...................................... 50
2.12 ASSUMPTIONS REGARDING NOTICES.................................... 51
2.12.1 AUTHORIZED EMPLOYEES.................................... 51
2.12.2 NO LIABILITY............................................ 52
2.12.3 NOTICE IRREVOCABLE...................................... 52
2.13 COMPUTATIONS, FEES, PAYMENTS, ETC................................ 52
2.13.1 COMPUTATIONS............................................ 52
2.13.2 FEES.................................................... 52
2.13.3 PAYMENTS................................................ 54
2.13.4 CHARGE TO ACCOUNTS...................................... 55
2.13.5 FAILURE TO MAKE PAYMENTS BY COMPANY..................... 55
2.14 TAXES............................................................ 55
2.15 ADDITIONAL COSTS................................................. 56
2.15.1 TAXES, RESERVE REQUIREMENTS, ETC........................ 56
2.15.2 CAPITAL ADEQUACY........................................ 57
2.15.3 CERTIFICATE OF LENDER................................... 57
2.16 INABILITY TO DETERMINE RATE; INADEQUACY OF PRICING; ILLEGALITY... 58
2.16.1 RATE INABILITY; PRICING INADEQUACY...................... 58
2.16.2 ILLEGALITY; TERMINATION OF COMMITMENTS.................. 58
2.17 OBLIGATION TO INDEMNIFY.......................................... 58
2.17.1 EVENTS.................................................. 58
2.17.2 STATEMENT............................................... 59
2.17.3 SURVIVAL................................................ 59
2.18 USE OF PROCEEDS.................................................. 59
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3. [RESERVED]................................................................ 60
4. BOND REDEMPTION........................................................... 60
4.1 COMPANY BOND REDEMPTION.......................................... 60
4.2 MCC-BATAVIA BOND REDEMPTION...................................... 60
5. COLLATERAL................................................................ 60
6. SECURITY AND SUBROGATION UNDER INDENTURE.................................. 61
6.1 SECURITY......................................................... 61
6.2 PLEDGE OF RIGHTS TO CERTAIN FUNDS AND INVESTMENTS................ 61
6.3 PLEDGED BONDS.................................................... 61
6.3.1 PLEDGE.................................................. 61
6.3.2 PLEDGED BOND PAYMENTS................................... 62
6.3.3 RELEASE OF PLEDGED BONDS................................ 62
6.3.4 LIABILITY OF AGENT...................................... 63
6.3.5 REPRESENTATIONS; RIGHTS AND REMEDIES.................... 63
7. CONDITIONS PRECEDENT...................................................... 63
7.1 INITIAL ADVANCES................................................. 63
7.1.1 LOAN DOCUMENTS.......................................... 63
7.1.2 OPINION LETTERS......................................... 63
7.1.3 RESOLUTIONS............................................. 63
7.1.4 GOOD STANDING........................................... 64
7.1.5 DESIGNATION OF AUTHORIZED EMPLOYEES OF COMPANY.......... 64
7.1.6 INSURANCE............................................... 64
7.1.7 FULL SYNDICATION........................................ 64
7.1.8 UCC SEARCHES............................................ 64
7.1.9 CONSENTS................................................ 64
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7.1.10 FEES.................................................... 64
7.1.11 NO DEFAULT.............................................. 64
7.1.12 REPRESENTATIONS AND WARRANTIES.......................... 64
7.1.13 DOCUMENTATION AND PROCEEDINGS........................... 64
7.1.14 OTHER DOCUMENTS......................................... 65
7.1.15 OTHER CONDITIONS........................................ 65
7.2 EACH ADVANCE..................................................... 65
7.2.1 NO DEFAULTS............................................. 65
7.2.2 ACCURACY................................................ 65
7.2.3 NOTICES................................................. 65
7.2.4 OTHER DOCUMENTS......................................... 65
7.3 REPRESENTATIONS.................................................. 65
8. REPRESENTATIONS AND WARRANTIES............................................ 65
8.1 ORGANIZATION..................................................... 65
8.2 LATEST FINANCIALS................................................ 66
8.3 RECENT ADVERSE CHANGES........................................... 66
8.4 RECENT ACTIONS................................................... 66
8.5 TITLE............................................................ 66
8.6 LITIGATION, ETC.................................................. 66
8.7 TAXES............................................................ 67
8.8 AUTHORITY........................................................ 67
8.9 OTHER DEFAULTS................................................... 67
8.10 CONFLICTS........................................................ 67
8.11 PATENTS, LICENSES................................................ 68
8.12 ERISA............................................................ 68
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8.13 ENVIRONMENTAL MATTERS............................................ 68
8.14 INVESTMENT COMPANY ACT........................................... 69
8.15 GOVERNMENTAL CONSENTS............................................ 69
8.16 DISCLOSURE....................................................... 70
8.17 REGISTERED OFFICE................................................ 70
8.18 SUBSIDIARIES..................................................... 70
8.19 MARGIN STOCK..................................................... 70
8.20 STATUS OF PLEDGED COLLATERAL..................................... 70
8.21 SENIOR DEBT STATUS............................................... 71
9. AFFIRMATIVE COVENANTS..................................................... 71
9.1 [RESERVED]....................................................... 71
9.2 BOOKS AND RECORDS; ACCESS........................................ 71
9.3 MONTHLY STATEMENTS............................................... 71
9.4 [RESERVED]....................................................... 72
9.5 AUDITS........................................................... 72
9.6 ANNUAL STATEMENTS................................................ 72
9.7 AUDITOR'S LETTERS................................................ 72
9.8 ANNUAL BUDGETS, FORECASTS AND COMPARISONS........................ 72
9.9 NOTICES OF DEFAULT............................................... 73
9.10 PAYMENT OF CHARGES............................................... 73
9.11 EXISTENCE; OPERATIONS............................................ 73
9.12 INSURANCE........................................................ 73
9.13 COMPLIANCE WITH LAWS............................................. 74
9.14 ENVIRONMENTAL VIOLATIONS......................................... 74
9.15 ENVIRONMENTAL AUDIT AND OTHER ENVIRONMENTAL INFORMATION.......... 74
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9.16 BUSINESS NAMES AND LOCATIONS..................................... 75
9.17 ACCOUNTS......................................................... 75
9.18 ERISA COMPLIANCE................................................. 75
9.19 FURTHER ASSURANCES............................................... 76
9.20 COMPLIANCE WITH AGREEMENTS....................................... 76
10. NEGATIVE COVENANTS........................................................ 76
10.1 DEBT............................................................. 76
10.2 LEASES........................................................... 76
10.3 LIENS............................................................ 77
10.4 LEVERAGE RATIO................................................... 77
10.5 FIXED CHARGE COVERAGE RATIO...................................... 77
10.6 TANGIBLE NET WORTH............................................... 77
10.7 GUARANTEES....................................................... 77
10.8 CORPORATE CHANGES................................................ 77
10.9 REDEMPTIONS...................................................... 77
10.10 DIVIDENDS........................................................ 78
10.11 INVESTMENTS, LOANS AND ADVANCES.................................. 78
10.12 MERGER OR SALE OF ASSETS......................................... 78
10.13 ACQUISITIONS..................................................... 78
10.14 TRANSFER OF COLLATERAL........................................... 78
10.15 SALE AND LEASEBACK............................................... 79
10.16 LINE OF BUSINESS................................................. 79
10.17 WAIVERS.......................................................... 79
10.18 PAYMENTS TO SHAREHOLDERS AND AFFILIATES.......................... 79
10.19 TRANSACTIONS WITH AFFILIATES..................................... 79
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10.20 POST-CLOSING MATTERS............................................. 79
10.21 BOND DOCUMENTS................................................... 79
10.22 LIMITATION ON OPTIONAL CALLS..................................... 80
10.23 EXCESS BORROWING................................................. 80
11. EVENTS OF DEFAULT......................................................... 80
11.1 PAYMENT.......................................................... 80
11.2 BOND DOCUMENTS................................................... 80
11.3 COVENANTS........................................................ 80
11.4 REPRESENTATIONS AND WARRANTIES................................... 80
11.5 OBLIGATIONS...................................................... 80
11.6 EXECUTION, ATTACHMENT, ETC....................................... 81
11.7 LOSS, THEFT OR SUBSTANTIAL DAMAGE TO THE COLLATERAL.............. 81
11.8 JUDGMENTS........................................................ 81
11.9 BANKRUPTCY, ETC.................................................. 81
11.10 IMPAIRMENT OF SECURITY........................................... 81
11.11 OTHER INDEBTEDNESS............................................... 82
11.12 AMENDMENT........................................................ 82
11.13 CHANGE OF CONTROL................................................ 82
12. INTERCREDITOR LIEN AND PAYMENT PROVISIONS................................. 84
12.1 LIEN PRIORITY.................................................... 84
12.2 PARTICIPATION IN LETTERS OF CREDIT............................... 84
12.3 SHARING OF PAYMENTS, ETC......................................... 85
12.4 RECEIPT OF PAYMENTS BY LENDERS................................... 86
12.5 DISTRIBUTIONS, ETC............................................... 86
12.6 BENEFIT.......................................................... 87
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13. REPRESENTATIONS AND WARRANTIES TO SURVIVE................................ 87
14. ENVIRONMENTAL INDEMNIFICATION............................................ 87
15. THE AGENT................................................................ 88
15.1 AUTHORIZATION AND ACTION........................................ 88
15.2 AGENT'S RELIANCE, ETC........................................... 88
15.3 THE AGENT AND ITS AFFILIATES.................................... 89
15.4 LENDER CREDIT DECISION.......................................... 89
15.5 INDEMNIFICATION................................................. 90
15.6 SUCCESSOR AGENT................................................. 90
15.7 RELATIONS AMONG LENDERS......................................... 91
15.8 BENEFIT......................................................... 91
16. GENERAL ................................................................ 91
16.1 WAIVER.......................................................... 91
16.2 NOTICES......................................................... 92
16.3 SUCCESSORS AND ASSIGNS.......................................... 93
16.4 MODIFICATIONS................................................... 96
16.5 ILLEGALITY...................................................... 96
16.6 GENDER, ETC..................................................... 97
16.7 HEADINGS........................................................ 97
16.8 PURPOSE......................................................... 97
16.9 RATIFICATION.................................................... 97
16.10 CLAIMS AND RELEASE OF CLAIMS.................................... 97
16.11 EXECUTION IN COUNTERPARTS....................................... 98
16.12 REMEDIES CUMULATIVE............................................. 98
16.13 COSTS, EXPENSES AND LEGAL FEES.................................. 98
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16.14 INDEMNITY....................................................... 99
16.15 CONTINUING AGREEMENT............................................ 99
16.16 COMPLETE AGREEMENT.............................................. 99
16.17 NO THIRD PARTY BENEFICIARIES.................................... 100
16.18 NO PARTNERSHIP OR JOINT VENTURE................................. 100
16.19 GOVERNING LAW AND JURISDICTION; WAIVER OF JURY TRIAL............ 100
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LIST OF EXHIBITS
EXHIBIT A List of Lenders, Addresses and Commitments
EXHIBIT B Disclosure Schedule
EXHIBIT C Substituted Revolving Credit Notes
EXHIBIT D Notice of Borrowing
EXHIBIT E Notice of Continuation
EXHIBIT F Notice of Conversion
EXHIBIT G [Reserved]
EXHIBIT H Swingline Note
EXHIBIT I Compliance Certificate
EXHIBIT J Term Note
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FIFTH AMENDED AND RESTATED
CREDIT, REIMBURSEMENT AND SECURITY AGREEMENT
MULTI-COLOR CORPORATION, an Ohio corporation (the "Company"), the
Subsidiaries (as defined herein) of the Company, the Lenders (as defined
herein), PNC BANK, NATIONAL ASSOCIATION, as agent for the Lenders (the "Agent"),
and PNC CAPITAL MARKETS, INC., as Lead Arranger, hereby agree as follows:
RECITALS:
A. The City of Scottsburg, Indiana ("Scottsburg") has issued its Economic
Development Revenue Bonds (Multi-Color Corporation Project) in the
principal amount of $5,750,000 (hereinafter collectively referred to as the
"Scottsburg Bonds"), under a Trust Indenture dated as of October 1, 1989
(the "Scottsburg Indenture") between Scottsburg and the Trustee.
B. In order to facilitate the issuance and sale of the Scottsburg Bonds and to
enhance the marketability of the Scottsburg Bonds and thereby achieve
interest cost savings and other savings to the Company, Barclays Bank, PLC,
New York Branch ("Barclays") issued its irrevocable letter of credit (the
"Scottsburg Letter of Credit") to the Trustee, for the account of the
Company, authorizing the Trustee to make one or more draws on Barclays up
to an aggregate of $6,303,733, of which original amount (i) $5,750,000 was
in respect of principal of the Scottsburg Bonds, (ii) $496,233 was in
respect of accrued interest on the Scottsburg Bonds and (iii) $57,500 was
to support the payment of a premium upon a redemption as a result of a
Determination of Taxability as set forth in the Scottsburg Indenture. As of
the Closing Date, the exposure under the Scottsburg Letter of Credit is
$2,569,794.
C. Scottsburg has issued its Variable Rate Demand Industrial Development
Revenue Bonds, Series 1997 (Multi-Color Corporation Project), in the
principal amount of $3,000,000 (the "1997 Scottsburg Bonds") under a Trust
Indenture dated as of April 1, 1997 (the "1997 Scottsburg Indenture")
between Scottsburg and the Trustee.
D. In order to facilitate the issuance and sale of the 1997 Scottsburg Bonds
and to enhance the marketability of the 1997 Scottsburg Bonds and thereby
achieve interest cost savings and other savings to the Company, the Agent
issued its irrevocable letter of credit (the "1997 Scottsburg Letter of
Credit") to the Trustee, for the account of the Company, authorizing the
Trustee to make one or more draws on the Agent up to an aggregate of
$3,049,316 (the "1997 Scottsburg Letter of Credit Amount") as set forth in
the 1997 Scottsburg Letter of Credit.
E. With respect to the Scottsburg Bonds, the Company requested the Agent to
issue an irrevocable alternate letter of credit (the "Scottsburg Alternate
Letter of Credit") to the Trustee in substitution for the Scottsburg Letter
of Credit. Pursuant to Section 6.04(b) of the Scottsburg Indenture, the
issuance of the Scottsburg Alternate Letter of Credit caused the Scottsburg
Bonds to be subject to the right of the holders of the Scottsburg Bonds to
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require the redemption of the Scottsburg Bonds pursuant to Section
3.01(b)(ii) of the Scottsburg Indenture and the Trustee provided notice in
accordance with Section 6.05 of the Scottsburg Indenture to the holders of
the Scottsburg Bonds of their right to require such purchase. The
Scottsburg Alternate Letter of Credit authorized the Trustee to make one or
more draws on the Agent up to an aggregate of $6,303,733 (the "Scottsburg
Alternate Letter of Credit Amount"), of which original amount (i)
$5,750,000 is in respect of principal of the Scottsburg Bonds and (ii)
$496,233 is in respect of accrued interest on the Scottsburg Bonds, (iii)
$57,500 is in respect to the premium upon redemption as a result of a
Determination of Taxability as set forth in the Scottsburg Indenture. As of
the Closing Date, the exposure under the Scottsburg Alternate Letter of
Credit is $3,681,187.
F. The County of Clermont, Ohio has issued its Multi-Mode Variable Rate
Industrial Development Revenue Bonds, Series 1997 (Buriot International,
Inc. Project), in the principal amount of $7,000,000 (the "MCC-Batavia
Bonds") under a Trust Indenture dated as of June 1, 1997 (the "MCC-Batavia
Indenture") between the County of Clermont, Ohio and the Trustee. Pursuant
to an Assumption Agreement dated as of December 13, 1999 between
MCC-Batavia and Leonard Z. Eppel, Receiver of Buriot International, Inc.,
MCC-Batavia assumed and agreed to pay and discharge all of the duties and
obligations of Buriot International, Inc. under the Bond Documents (as
defined in the MCC-Batavia Indenture).
G. In order to facilitate the issuance and sale of the MCC-Batavia Bonds and
to enhance the marketability of the MCC-Batavia Bonds and thereby achieve
interest cost savings and other savings to the Company, the Agent, at the
request of MCC-Batavia, issued an alternate letter of credit (the
"MCC-Batavia Alternate Letter of Credit") to the Trustee, for the account
of MCC-Batavia, authorizing the Trustee to make one or more draws on the
Agent up to an aggregate of $6,258,083 (the "MCC-Batavia Letter of Credit
Amount") as set forth in the MCC-Batavia Letter of Credit. As of the
Closing Date, the exposure under the MCC-Batavia Alternate Letter of Credit
is $4,815,890.
H. The Company has requested that the Lenders extend a $6,000,000 revolving
credit facility to the Company.
I. The Company has requested that the Lenders extend a standby letter of
credit facility to the Company to be included as a $500,000 sub-limit to
the revolving credit facility.
J. The Company has requested that PNC Bank, National Association, as Lender,
extend a Swingline credit facility to the Company to be included as a
$1,000,000 sub-limit to the revolving credit facility.
K. The Company has requested that the Lenders extend a $15,000,000
non-revolving credit facility to the Company for acquisition purposes.
L. The Company has requested that the Lenders extend a $4,680,000 term loan to
the Company.
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M. The Agent and the Lenders are willing to issue the above-referenced letter
of credit facilities and to make available the above-referenced credit
facilities on the terms and conditions hereinafter set forth.
1. DEFINITIONS.
1.1 DEFINED TERMS. In this Credit Agreement (except as otherwise
expressly provided for or unless the context otherwise requires),
defined terms may be used in the singular or plural, the use of any
gender includes all other genders and the following terms have the
meanings specified in the foregoing recitals:
Agent Scottsburg
Barclays Scottsburg Alternate Letter of Credit
Company Scottsburg Alternate Letter of Credit
Amount
MCC-Batavia Scottsburg Indenture
MCC-Batavia Alternate Letter
of Credit Scottsburg Letter of Credit
MCC-Batavia Bonds
MCC-Batavia Indenture
MCC-Batavia Letter of Credit
Amount
In addition, the following terms shall have the following meanings,
unless the context requires otherwise:
1.1.1 "Acquisition" will mean the acquisition by any Person of
(a) all or substantially all of the capital stock or
other equity interests of another Person, (b) all or
substantially all of the assets of another Person or (c)
all or substantially all of a line of business of
another Person, in each case whether or not involving a
merger or consolidation with such other Person.
1.1.2 "Adjusted EBITDA" will mean, for any period, with
respect to the Company and its Subsidiaries on a
consolidated basis, the sum of (a) operating income
before interest expenses and tax expenses calculated in
accordance with GAAP for such period (excluding the
effect of any extraordinary or other non-recurring gains
or losses (including any gain or loss from the sale of
property)) plus (b) an amount which in the determination
of operating income for such period has been deducted
for (i) depreciation and amortization for such period
and (ii) non-recurring fees and expenses incurred in
connection with the closing of this Credit Agreement.
From and after the closing of any Permitted Acquisition,
the historical EBITDA of the subject of such Permitted
Acquisition, as reasonably adjusted by Agent in its sole
discretion, will be included in the calculation of
Adjusted EBITDA for purposes of this definition.
1.1.3 "Advance" or "Advances" will mean Revolving Credit
Loans, Non-Revolving Credit Loans or Swingline Loans, as
the case may be, as well as the Term Loan.
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1.1.4 "Affiliate" will mean, with respect to any Person (a)
any other Person directly or indirectly controlling,
controlled by or under common control with such Person,
or (b) any Person who is a director or officer of such
Person or any Subsidiary thereof. A Person will be
deemed to control another Person if such Person
possesses, directly or indirectly, the power to (i) vote
ten percent (10%) or more of the voting equity of such
other Person, or (ii) direct or cause the direction of
the management and policies of such other Person,
whether through voting securities, by contract or
otherwise.
1.1.5 "Agency Fee" will have the meaning given that term in
Section 2.13.2(d), below.
1.1.6 "Agent's Account" will mean the account of the Agent
maintained by the Agent at its office at 201 East Fifth
Street, Cincinnati, Ohio 45201-1198, Account Number
4110349324, Attention: Corporate Banking, or such other
account maintained by the Agent and designated by the
Agent in a written notice to the Lenders and the
Company.
1.1.7 "Aggregate Outstanding Revolving Credit" will mean an
amount equal to the sum of (i) the aggregate unpaid
principal amount of all Revolving Credit Loans, (ii) the
stated amount of all Standby Letters of Credit and (iii)
the aggregate unpaid principal amount of all Swingline
Loans.
1.1.8 "Aggregate Outstanding Non-Revolving Credit" will mean
an amount equal to the sum of the aggregate unpaid
principal amount of all Non-Revolving Credit Loans.
1.1.9 "Alternate Letter of Credit" will mean the Scottsburg
Alternate Letter of Credit and the MCC-Batavia Alternate
Letter of Credit, collectively and individually as the
context requires.
1.1.10 "Amortization Commencement Date" will mean, with respect
to a particular Advance under the Non-Revolving Credit
Facility, the date ninety (90) days after the date of
such Advance.
1.1.11 "Applicable Lending Office" will mean the office for
each Lender set forth in Exhibit A.
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1.1.12 "Applicable Margin" will mean:
a. As to any Base Rate Advance:
APPLICABLE
LEVERAGE RATIO MARGIN
-------------- -----------
Less than or equal to 2.0x 0.00%
Greater than 2.0x but less
than or equal to 2.5x 0.00%
Greater than 2.5x but less
than or equal to 3.0x 0.00%
Greater than 3.0x 0.00%
b. As to any Eurodollar Rate Advance:
APPLICABLE
LEVERAGE RATIO MARGIN
-------------- -----------
Less than or equal to 2.0x 1.25%
Greater than 2.0x but less
than or equal to 2.5x 1.50%
Greater than 2.5x but less
than or equal to 3.0x 1.75%
Greater than 3.0x 2.00%
1.1.13 "Assignment and Acceptance" will mean a form
substantially in the form delivered to each Lender in
connection with the Closing to transfer interests in its
Loans.
1.1.14 "Authorized Employee" will mean any person designated in
the notice required pursuant to Section 7.1.5, below,
which designation shall continue in full force and
effect until revoked by the Company in a subsequent
written notice delivered to the Agent.
1.1.15 "Available Commitment" will mean, as to any Lender at
any time, an amount equal to the excess, if any, of (a)
such Lender's Revolving Commitment over (b) the sum of
(i) the then outstanding Revolving Credit Loans,
Swingline Loans and Non-Revolving Credit Loans made by
such Lender and (ii) such Lender's Ratable Portion of
all outstanding Letter of Credit Obligations (without
duplication for any amount thereof included under clause
(i), above).
1.1.16 "Bank Interest Rate" will mean, at any time that sums
are due and payable to the Agent under Section 2.10.5,
below, the Prime Rate plus three percent (3%) per annum.
1.1.17 "Base Rate" will mean the higher of (i) the Prime Rate
or (ii) 1/2% per annum in excess of the Federal Funds
Rate.
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1.1.18 "Base Rate Advance" will mean any Advance as to which
the Company has elected (or is deemed to have elected)
an Interest Rate that is based upon the Base Rate.
1.1.19 "Bond Counsel" will mean Taft, Stettinius & Hollister
LLP as to the Scottsburg Bonds and Peck, Shaffer &
Williams, L.L.P. as to the 1997 Scottsburg Bonds and the
MCC-Batavia Bonds.
1.1.20 "Bond Documents" will mean the Bonds, the Indenture, the
Reimbursement Agreement, the Security Documents, the
Remarketing Agreement and any other agreements or
instruments relating thereto.
1.1.21 "Bonds" will mean the Scottsburg Bonds, 1997 Scottsburg
Bonds and MCC-Batavia Bonds, collectively and
individually as the context requires.
1.1.22 "Borrowing" will mean a borrowing consisting of all
Advances made on a given Borrowing Date.
1.1.23 "Borrowing Date" will mean the date on which an Advance
is made.
1.1.24 "Business Day" will mean a day of the year on which
banks are not required or authorized to close in
Pittsburgh, Pennsylvania or Cincinnati, Ohio and, if the
applicable Business Day relates to any Eurodollar Rate
Advance, on which dealings are carried on in dollar
deposits in the London interbank market.
1.1.25 "Cash Collateral Account" will mean Account No.
4110349324 at the Agent.
1.1.26 "Closing Date" will mean the date on which this Credit
Agreement and the related Loan Documents are executed.
1.1.27 "Code" will mean the Internal Revenue Code of 1986, as
amended or supplemented from time to time.
1.1.28 "Collateral" will mean any property, real or personal,
tangible or intangible, referred to in this Credit
Agreement or the Security Documents or now or in the
future securing any of the Obligations.
1.1.29 "Commitment" or "Commitments" will mean the Revolving
Commitment, Standby Letter of Credit Commitment, Letter
of Credit Commitment, the Non-Revolving Commitment and
the Swingline Commitment, as adjusted from time to time
pursuant to Section 2.8, below.
-6-
1.1.30 "Commitment Fee" will have the meaning given to that
term in Section 2.13.2(b), below.
1.1.31 "Continuation Date" will mean the date on which an
Advance is continued as the same Type of Advance for a
successive Interest Period upon expiration of the
preceding Interest Period (subject to Section 2.5,
below).
1.1.32 "Conversion Date" will mean the date on which an Advance
is converted into a different Type of Advance (subject
to Section 2.5, below).
1.1.33 "Credit Agreement" will mean this Fifth Amended and
Restated Credit, Reimbursement and Security Agreement
and any amendments or supplements thereto made from time
to time in accordance with Section 16.4, below.
1.1.34 "Credit Facilities" will mean the Revolving Credit
Facility, the Non-Revolving Credit Facility, the
Swingline Subfacility, the Term Loan and the Letter of
Credit Facilities, as described in Section 2, below.
1.1.35 "Date of Issuance" will mean the respective dates the
Scottsburg Alternate Letter of Credit, the 1997
Scottsburg Letter of Credit or the MCC-Batavia Alternate
Letter of Credit were issued and delivered to the
Trustee, as the context requires.
1.1.36 "Default" will mean any event or condition which, with
the passage of time, the giving of notice or the
determination by the Agent or any of the Lenders, or any
combination of the foregoing, would constitute an Event
of Default.
1.1.37 "Default Rate" will mean two percent (2%) per annum plus
the Base Rate in effect from time to time while an Event
of Default exists, but not more than the highest rate
permitted by applicable law.
1.1.38 "Disclosure Schedule" will mean the updated schedules to
be provided by the Company that are attached hereto as
Exhibit B.
1.1.39 "Dollars" will mean lawful money of the United States of
America.
1.1.40 "EBITDA" will mean operating income (or loss) before
interest expenses, tax expenses, depreciation and
amortization expenses.
1.1.41 "Eligible Investments" means (i) obligations issued or
guaranteed by any state or political subdivision thereof
rated A higher by Moody's Investors Services Inc. or
rated A-2 or higher by Standard
-7-
and Poor's Corporation, or their successor; (ii) shares
of a money market mutual fund the assets of which are
exclusively invested in obligations of the type
described in (i) above; and (iii) investments expressly
approved by Bond Counsel in writing; provided that any
such investment or deposit is not prohibited by law.
1.1.42 "ERISA" will mean the Employee Retirement Income
Security Act of 1974, or any successor statute, as
amended or supplemented from time to time.
1.1.43 "ERISA Affiliate" will mean any person (as defined in
Section 3(a)) of ERISA including each trade or business
(whether or not incorporated) that together with the
Company, or any Subsidiary thereof, would be deemed to
be a "single employer" or member of the same "controlled
group" within the meaning of Section 414 of the Code.
1.1.44 "Eurocurrency Liabilities" will have the meaning given
such term in Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to
time.
1.1.45 "Eurodollar Rate" will mean, with respect to any
Eurodollar Rate Advance and its related Interest Period,
the interest rate per annum equal to the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of
1%), determined by the Agent by dividing (a) the rate of
interest determined by the Agent in accordance with its
usual procedures (which determination shall be
conclusive absent manifest error) to be the average of
the London interbank offered rate for U.S. Dollars
quoted by the British Bankers' Association as set forth
on Dow Jones Markets Service (formerly known as
Telerate) display page 3750 (or appropriate successor
or, if the British Bankers' Association or its successor
ceases to provide such quotes, a comparable replacement
determined by the Agent) two Business Days before the
first day of such Interest Period for an amount
comparable to such Eurodollar Rate Advance by (b) a
number equal to 1.00 minus the Eurodollar Rate Reserve
Percentage for such Interest Period. The Eurodollar Rate
may also be expressed by the following formula:
Eurodollar = Average of London interbank offered rate
Rate on Dow Jones Markets Service
display page 3750 as quoted by British
Banker's Association or appropriate
successor
------------------------------------------
1.00 - Eurodollar Rate Reserve Percentage
-8-
The Eurodollar Rate will be adjusted with respect to any
Eurodollar Rate Advance outstanding on the effective
date of any change in the Eurodollar Rate Reserve
Percentage as of such effective date. The Agent shall
give prompt notice to the Company of the Eurodollar Rate
as determined or adjusted in accordance herewith, which
determination shall be conclusive absent manifest error.
1.1.46 "Eurodollar Rate Advance" will mean any Advance as to
which the Company has elected an Interest Rate that is
based upon the Eurodollar Rate.
1.1.47 "Eurodollar Rate Reserve Percentage" will mean for any
day, the maximum reserve percentage (rounded upward if
necessary, to the next higher 1/100 of 1%), as
determined by the Agent, which is in effect on such day
as prescribed from time to time by the Board of
Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve
requirement (including, without limitation, any
emergency, supplemental, marginal, special or other
reserve requirements) for a member bank of the Federal
Reserve System with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or
with respect to any other category of liabilities that
includes deposits by reference to which the interest
rate on Eurodollar Rate Advances is determined) having a
term equal to the term of the relevant Eurodollar Rate
Advance.
1.1.48 "Event of Default" will mean any of the events listed in
Section 11 of this Credit Agreement.
1.1.49 "Excess Cash Flow" will mean, for any Fiscal Year, the
difference (if positive) between Adjusted EBITDA and
Fixed Charges of the Company and its Subsidiaries for
such Fiscal Year.
1.1.50 "Federal Funds Rate" will mean, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates
on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business
Day, the average of the quotations for such day for such
transactions received by the Agent from three Federal
funds brokers of recognized standing selected by it.
-9-
1.1.51 "Fiscal Quarter" means each three (3) month fiscal
period of the Company and its Subsidiaries.
1.1.52 "Fiscal Year" means each annual fiscal period of the
Company and its Subsidiaries ending on or about March
31.
1.1.53 "Fixed Charge Coverage Ratio" will mean for the Company
and its Subsidiaries on a consolidated basis the ratio
of Adjusted EBITDA to Fixed Charges.
1.1.54 "Fixed Charges" will mean for any period of
determination the sum of interest expense, scheduled
principal payments on long-term debt, scheduled payments
under capital leases, income taxes paid, dividends and
distributions to shareholders, and Unfunded Capital
Expenditures, in each case of the Company and its
Subsidiaries for such period determined and consolidated
in accordance with GAAP.
1.1.55 "GAAP" will mean generally accepted accounting
principles.
1.1.56 "Governmental Authority" will mean any nation or
government, any state or other political subdivision
thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative
functions of or pertaining to government, including,
without limitation, any department, commission, board,
bureau, agency, administration, service or other
instrumentality of the United States of America, of any
state, the District of Columbia, municipality or any
other governmental entity.
1.1.57 "Hazardous Wastes", "hazardous substances" and
"pollutants or contaminants" will mean any substances,
waste, pollutant or contaminant now or hereafter
included with any respective terms under any now
existing or hereinafter enacted or amended federal,
state or local statute, ordinance, code or regulation
designed to protect the environment, including but not
limited to the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601
et seq. ("CERCLA").
1.1.58 "Hedging Agreements" will mean, collectively, any
International Swaps and Derivatives Association Master
Agreement ("Master Agreement") between or among the
Company and any Lender, or any Affiliate of the Company
or any Lender, and including each Transaction (as such
term is defined in the Master Agreement), as confirmed
in the applicable confirmation of each such Transaction;
and any obligation of the Company or any of its
Subsidiaries to any Lender or any Affiliate of any
Lender under any other interest rate swap, cap, collar,
floor, option, forward, or other type of
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interest rate protection, foreign exchange or derivative
transaction agreement.
1.1.59 "Indebtedness" will mean, for any Person, without
duplication, the following: (a) all obligations
(including capitalized lease obligations) which in
accordance with GAAP would be shown on a balance sheet
as a liability, excluding, however, all accounts payable
and accrued liabilities incurred in the ordinary course
of business; (b) all obligations for borrowed money
(whether considered short-term or long-term); (c) all
obligations evidenced by notes, bonds, debentures or
similar instruments, or upon which interest payments are
customarily made; (d) all guarantees, reimbursement,
payment or similar obligations, absolute, contingent or
otherwise, under acceptance, letter of credit or similar
facilities; (e) all Indebtedness of any other Person
secured by (or for which the holder of such Indebtedness
has a right, contingent or otherwise, to be secured by)
any lien of any kind upon or in property or assets owned
by such Person, whether or not such Person has assumed
or become liable for the payment of any such
Indebtedness; (f) the principal portion of all
obligations of such Person under any synthetic lease,
off-balance sheet loan or similar off-balance sheet
financing product of such Person where such transaction
is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in
accordance with GAAP; (g) all net obligations of such
Person in respect of Hedging Agreements, (h) the maximum
amount of all performance and standby letters of credit
issued or bankers' acceptances facilities created for
the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed),
and (i) the aggregate amount of uncollected accounts
receivable of such Person subject at such time to a sale
of receivables (or similar transaction) regardless of
whether such transaction is effected without recourse to
such Person or in a manner that would not be reflected
on the balance sheet of such Person in accordance with
GAAP. The Indebtedness of any Person shall include the
Indebtedness of any partnership or unincorporated joint
venture in which such Person is legally obligated.
1.1.60 "Indenture" will mean the Scottsburg Indenture, the 1997
Scottsburg Indenture and the MCC-Batavia Indenture,
collectively and individually as the context requires.
1.1.61 "Interest Draft" will mean a drawing under any Letter of
Credit to be used for payment of interest due on the
applicable Bonds.
1.1.62 "Interest Period" will mean, with respect to any (a)
Base Rate Advance, a period commencing on the Borrowing
Date or
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Conversion Date thereof, as applicable, and ending on a
date designated by the Company in the related Notice of
Conversion; (b) Eurodollar Rate Advance, a period
commencing on the Borrowing Date, Conversion Date or
Continuation Date thereof, as applicable, and ending on
a date one (1) month, two (2) months, three (3) months
or six (6) months thereafter, as designated by the
Company in the related Notice of Borrowing, Notice of
Conversion or Notice of Continuation; provided, however,
that:
a. the Company may not select any Interest Period
that ends after the Termination Date;
b. whenever the last day of any Interest Period would
otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business
Day; provided, however, that such extension would
cause the last day of such Interest Period to
occur in the next following calendar month, the
last day of such Interest Period shall occur on
the next preceding Business Day;
c. whenever the first day of any Interest Period
occurs on the last Business Day of a calendar
month (or on a day of an initial calendar month
for which there is no numerically corresponding
day in the calendar month at the end of such
Interest Period), such Interest Period shall end
on the last Business Day of such calendar month;
d. in the case of immediately successive Interest
Periods, each successive Interest Period shall
commence on the day on which each preceding
Interest Period expires; and
e. no more than nine (9) different Interest Periods
may be outstanding at any one time.
1.1.63 "Interest Portion" will have the meaning ascribed to
such term in the Letters of Credit.
1.1.64 "Interest Rate" will mean the applicable rates under
Section 2.7, below.
1.1.65 "Issuer" will mean Clermont County, Ohio and Scottsburg,
Indiana, individually or collectively as applicable.
1.1.66 "Items" will have the meaning given that term in Section
3.1 of this Credit Agreement.
1.1.67 "Lead Arranger" will mean PNC Capital Markets, Inc.
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1.1.68 "Lender" will mean any of the Persons identified as a
"Lender" on the signature pages hereto, and any assignee
which may become a Lender by way of assignment in
accordance with the terms hereof, together with their
successors and permitted assigns.
1.1.69 "Letter of Credit" or "Letters of Credit" will mean the
Scottsburg Alternate Letter of Credit, the 1997
Scottsburg Letter of Credit and the MCC-Batavia
Alternate Letter of Credit, individually and
collectively as the context requires.
1.1.70 "Letter of Credit Amount" or Letter of Credit Amounts"
will mean the Scottsburg Alternate Letter of Credit
Amount, the 1997 Scottsburg Letter of Credit Amount, and
the MCC-Batavia Letter of Credit Amount, as applicable.
1.1.71 "Letter of Credit Commitment" will mean the commitment
of the Agent on behalf of the Lenders to issue Letters
of Credit pursuant to Section 2.10, below.
1.1.72 "Letter of Credit Documents" will mean the respective
applications and agreements with respect to Letters of
Credit and Standby Letters of Credit on the Agent's
standard forms thereof (or such other form as the Agent
and the Company or the Company may agree) signed at the
time of issuance or renewal of such Letters of Credit or
Standby Letters of Credit.
1.1.73 "Letter of Credit Facilities" will mean the Credit
Facilities described in Sections 2.10 and 2.11 of this
Credit Agreement.
1.1.74 "Letter of Credit Obligations" will mean an amount equal
to the sum of (a) the aggregate then undrawn and
unexpired amount of the then outstanding Letters of
Credit and Standby Letters of Credit, plus (b) the
aggregate amount of drawings under Letters of Credit and
Standby Letters of Credit that have not then been
reimbursed by the Company.
1.1.75 "Leverage Ratio" will mean the ratio of (i) Indebtedness
to (ii) Adjusted EBITDA, on a consolidated basis for the
Company and its Subsidiaries, calculated as of the end
of each Fiscal Quarter for the immediately preceding
four Fiscal Quarters.
1.1.76 "Levies" will have the meaning given that term in
Section 2.14 of this Credit Agreement.
1.1.77 "Liquidity Period" will mean the period beginning on the
date hereof and terminating on the first to occur of (i)
the date the Letters of Credit terminate, (ii) the first
date on which there are no longer any Bonds Outstanding
other than Bonds secured by an
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Alternate Letter of Credit, and (iii) the date the
Liquidity Period is terminated pursuant to Section 11.
1.1.78 "Loan Documents" will mean this Credit Agreement, the
Notes, the Security Documents, the Notices, the Letter
of Credit Documents and such other agreements,
instruments and documents, including but not limited to
subordination and intercreditor agreements, powers of
attorney, consents, reimbursement agreements,
guaranties, notices, certificates and all other written
matter now or hereafter executed by or on behalf of the
Company or any of its Subsidiaries, and delivered to the
Agent or the Lenders in connection with this Credit
Agreement, together with all agreements, instruments and
documents referred to therein or contemplated thereby.
1.1.79 "Long Term Rate" will have the meaning ascribed to such
term in the Indenture, as applicable.
1.1.80 "Multiemployer Plan" will mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the
Company or any ERISA Affiliate (other than one
considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Code Section 414) is making or
accruing an obligation to make contributions, or has
within any of the preceding five (5) plan years made or
accrued an obligation to make contributions.
1.1.81 "Non-Revolving Applicable Margin" will mean:
a. As to any Base Rate Advance:
APPLICABLE
LEVERAGE RATIO MARGIN
-------------- ----------
Less than or equal to 2.0x 0.00%
Greater than 2.0x but less
than or equal to 2.5x 0.00%
Greater than 2.5x but less
than or equal to 3.0x 0.00%
Greater than 3.0x 0.00%
b. As to any Eurodollar Rate Advance:
APPLICABLE
LEVERAGE RATIO MARGIN
-------------- ----------
Less than or equal to 2.0x 1.25%
Greater than 2.0x but less
than or equal to 2.5x 1.50%
Greater than 2.5x but less
than or equal to 3.0x 1.75%
Greater than 3.0x 2.00%
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1.1.82 "Non-Revolving Commitment" will mean, as to any Lender,
the dollar amount set forth opposite its name on Exhibit
A hereto under the heading Non-Revolving Commitment.
1.1.83 "Non-Revolving Credit Facility" will mean the Credit
Facility described in Section 2.2, below.
1.1.84 "Non-Revolving Credit Loans" will mean the advances made
pursuant to Section 2.2, below."
1.1.85 "Non-Revolving Credit Notes" will mean the notes
evidencing the Non-Revolving Credit Loans made by the
Company in favor of the Lender at the time each
Non-Revolving Credit Loan is made, and all amendments,
extensions and renewals made thereto from time to time."
1.1.86 "Notes" will mean the Substituted Revolving Credit
Notes, the Non-Revolving Credit Notes and the Swingline
Note and will include any amendments, extensions and
renewals made thereto from time to time.
1.1.87 "Notice of Borrowing" will mean the notice required
under Section 2.3, below, in the form attached to this
Credit Agreement as Exhibit D.
1.1.88 "Notice of Continuation" will mean the notice required
under Section 2.5, below, in the form attached to this
Credit Agreement as Exhibit E.
1.1.89 "Notice of Conversion" will mean the notice required
under Section 2.5, below, in the form attached to this
Credit Agreement as Exhibit F.
1.1.90 "Notice of Prepayment" will mean the notice required
under Section 2.6, below.
1.1.91 "Notices" will mean all Notices of Borrowing, Notices of
Continuation, Notices of Conversion, Notices of
Prepayment, or any notice under Section 2.8, below, of
termination or reduction.
1.1.92 "Obligations" will mean and include all loans, advances,
debts, liabilities, obligations, covenants and duties
owing to the Agent and/or any or all of the Lenders from
the Company and its Subsidiaries of any kind or nature
arising under this Credit Agreement, the Letters of
Credit, the Standby Letters of Credit, the Letter of
Credit Documents, the Notes, the Hedging Agreements, or
any of the Loan Documents, whether or not for the
payment of money, whether arising by reason of an
extension of credit,
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opening of a letter of credit, loan, equipment lease, or
guaranty, whether under any interest or currency swap,
future, option or similar agreement, or in any other
manner, whether arising out of overdrafts on deposit or
other accounts or electronic funds transfers (whether
through automated clearing houses or otherwise), whether
direct or indirect, absolute or contingent, joint or
several, due or to become due, now existing or hereafter
arising, and all charges, expenses, fees, including but
not limited to reasonable attorneys' fees and expenses,
and any other sums chargeable to the Company under any
of the Obligations.
1.1.93 "Outstanding" when applied to the Bonds will have the
meaning ascribed to such term in the Indenture.
1.1.94 "PBGC" will mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
1.1.95 "Permitted Acquisition" means any Acquisition by the
Company or any Subsidiary thereof for consideration no
greater than the fair market value of the capital stock
(or other equity interest) or property acquired;
provided that (a) the property acquired (or the property
of the Person acquired) in such Acquisition is located
entirely within the continental United States of America
and constitutes assets used or useful in the same or a
similar line of business as the Company and its
Subsidiaries were engaged on the Closing Date (or
goodwill associated therewith), (b) the property
acquired (or the property of the Person acquired) in
such Acquisition becomes part of the Collateral upon the
closing of such Acquisition, (c) in the case of an
Acquisition of the capital stock or other outstanding
equity interest of another Person, such Person shall
have delivered to the Agent upon the closing of such
Acquisition an unlimited guarantee of the Obligations in
form acceptable to the Agent, (d) in the case of an
Acquisition of the capital stock or other outstanding
equity interest of another Person, the board of
directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition,
(e) the Company shall have delivered to the Agent, prior
to the closing of such Acquisition, a certificate
demonstrating that, upon giving effect to such
Acquisition, (1) the Company and its Subsidiaries are in
compliance with this Credit Agreement, (2) the pro-forma
Leverage Ratio is not greater than 2.75 to 1.00, and (3)
the amount available for borrowing under the Revolving
Credit Facility is at least $3,500,000, and (f) the
representations and warranties made by the Company in
this Credit Agreement or in any other Loan Document
shall be true and correct in all material respects at
and as if made as of the date of such Acquisition (after
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giving effect thereto) except to the extent such
representations and warranties expressly relate to an
earlier date.
1.1.96 "Permitted Liens" will mean:
a. liens securing the payment of taxes, either not
yet due or the validity of which is being
contested by the Person being charged in good
faith by appropriate proceedings, and as to which
it has set aside on its books adequate reserves to
the extent required by GAAP;
b. deposits under workers' compensation, unemployment
insurance and social security laws, or to secure
the performance of bids, tenders, contracts (other
than for the repayment of borrowed money) or
leases, or to secure statutory obligations or
surety or appeal bonds, or to secure indemnity,
performance or other similar bonds in the ordinary
course of business;
c. liens imposed by law, such as carriers',
warehousemen's or mechanics' liens, incurred by it
in good faith in the ordinary course of business;
d. purchase money liens incurred in the connection
with the acquisition of capital assets limited to
the specific assets acquired with such financing
(subject to the acquisition of such assets and
incurrence of such debt being otherwise permitted
by the terms of this Credit Agreement);
e. liens in favor of the Agent for the benefit of the
Lenders under this Credit Agreement or the
Security Documents; and
f. liens disclosed on the updated Disclosure
Schedule.
1.1.97 "Permitted Stock Buybacks" has the meaning set forth in
Section 10.9 (Redemptions), below.
1.1.98 "Person" will mean an individual, partnership,
corporation (including a business trust), limited
liability company, joint stock company, trust,
unincorporated association, joint venture or other
entity, or a government or any political subdivision or
agency thereof.
1.1.99 "Plan" will mean any pension plan subject to the
provisions of Title IV of ERISA or Section 412 of the
Code and which is maintained for employees of the
Company or any ERISA Affiliate.
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1.1.100 "Potential Default" will mean any event or condition
which may with lapse of time or notice or both
constitute a Default or Event of Default.
1.1.101 "Prime Rate" will mean the rate established by the Agent
from time to time based on its consideration of various
factors, including money market, business and
competitive factors, and is not necessarily the Agent's
most favored interest rate. Subject to any maximum or
minimum interest rate limitations specified herein or by
applicable law, if and when the Prime Rate changes while
any indebtedness, principal or interest or any other
amount remains outstanding under this Credit Agreement,
then in each such event, any rate of interest payable
under this Credit Agreement, the Notes or any of the
other Loan Documents based on the Prime Rate will change
automatically without notice to the Company effective
the date of such change.
1.1.102 "Principal Portion" will have the meaning ascribed to
such term in the Letters of Credit.
1.1.103 "Ratable Portion" will mean, with respect to any Lender,
a fraction (expressed as a percentage), the numerator of
which will be the amount of such Lender's Revolving
Commitment and the denominator of which will be the
aggregate amount of all of the Lenders' Revolving
Commitments, as the case may be; provided, however, that
as to any Lender that fails or refuses to make its
Ratable Portion of any Advance (or to pay any required
participation payment relative to any Letter of Credit
or Standby Letter of Credit), such Lender's Ratable
Portion of payments distributable to Lenders shall be
adjusted accordingly.
1.1.104 "Redemption Draft" will mean a drawing under any Letter
of Credit to be used for payment of the portion of the
redemption price of the applicable Bonds corresponding
to the principal amount thereof to be redeemed and
cancelled by the Issuer pursuant to the Indenture, or
payment of the principal amount of such Bonds at their
stated maturity or upon acceleration of payments due on
such Bonds pursuant to the Indenture.
1.1.105 "Register" will mean a listing maintained by the Agent
of the names and addresses of the Lenders and their
respective Commitments, and of the principal amount
owing to each Lender under the Credit Facilities from
time to time.
1.1.106 "Remarketing Agent" will mean the Remarketing Agent
under the Indenture, as applicable.
-18-
1.1.107 "Remarketing Agreement" means the Remarketing Agent's
agreement to perform its duties under the Indenture.
1.1.108 "Reportable Event" will mean any reportable event as
defined in Section 4043(b) of ERISA or the regulations
issued thereunder with respect to a Plan (other than a
Plan maintained by an ERISA Affiliate which is
considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Code Section 414).
1.1.109 "Required Lenders" shall mean Lenders whose Commitments
aggregate at least two-thirds of the Commitments of all
of the Lenders.
1.1.110 "Responsible Officer" will mean, with respect to any
Person, any of its financial officers, or its chairman,
chief executive officer, president or any vice
president.
1.1.111 "Revolving Commitment" will mean, as to any Lender, the
dollar amount set forth opposite its name on Exhibit A
hereto under the heading Revolving Commitment, as such
amount may be reduced from time to time pursuant to
Section 2.8, below.
1.1.112 "Revolving Conditions" will mean the conditions
specified in Section 2.1, below.
1.1.113 "Revolving Credit Facility" will mean the Credit
Facility described in Section 2.1, below.
1.1.114 "Revolving Credit Loans" will mean the advances made
pursuant to Section 2.1. below.
1.1.115 "Security Documents" will mean the security agreements,
pledges, mortgages or other documents delivered by the
Company to the Agent for the benefit of the Lenders now
or in the future to encumber the Collateral in favor of
the Agent for the benefit of the Lenders.
1.1.116 "Senior Debt" will mean the principal amount of all
Indebtedness of the Company or its Subsidiaries that is
not Subordinated Debt.
1.1.117 "Solvent" will mean, with respect to any Person as of a
particular date, that on such date (a) such Person is
able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the
normal course of business, (b) such Person does not
intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay
as such debts and liabilities mature in their ordinary
course, (c) such Person is not engaged in a business or
a transaction, and is not about to engage
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in a business or a transaction, for which such Person's
assets would constitute unreasonably small capital after
giving due consideration to the prevailing practice in
the industry in which such Person is engaged or is about
to engage, (d) the fair value of such Person's assets is
greater than the total amount of such Person's
liabilities, including, without limitation, contingent
liabilities and (e) the present fair saleable value of
such Person's assets is not less than the amount that
will be required to pay the probable liability of such
Person on its debts as they become absolute and matured.
In computing the amount of contingent liabilities at any
time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts
and circumstances existing at such time, represents the
amount that can reasonably be expected to become an
actual or matured liability.
1.1.118 "Standby Letter of Credit" or "Standby Letters of
Credit" will mean Standby Letters of Credit issued
pursuant to Section 2.11 of this Credit Agreement to
support the contingent obligation of the Company to pay
a supplier amounts due under a purchase contract or for
such other corporate purpose to which the Agent consents
in its sole discretion.
1.1.119 "Standby Letter of Credit Commitment" will mean the
Commitment of the Agent on behalf of the Lenders to
issue Standby Letters of Credit in the aggregate not
exceeding (a) the Available Commitment or (b) $500,000.
1.1.120 "Standby Letter of Credit Conditions" will mean the
conditions specified in Section 2.11.1 of this Credit
Agreement.
1.1.121 "Standby Letter of Credit Disbursements" will have the
meaning given that term in Section 2.11.5 of this Credit
Agreement.
1.1.122 "Standby Letter of Credit Facility" will mean the Credit
Facility described in Section 2.11 of this Credit
Agreement.
1.1.123 "Subordinated Debt" will mean any Indebtedness of the
Company or its Subsidiaries: (i) which is subordinated
to the Lenders pursuant to a subordination agreement or
other instrument in form and substance acceptable to the
Lenders and (ii) that the Lenders have consented in
writing to being incurred by the Company or any of its
Subsidiaries in accordance with the terms of this Credit
Agreement.
1.1.124 "Subsidiary" will mean, as to any Person, any
corporation, partnership, trust or other entity of which
fifty percent (50%) or more of the stock (or equivalent
ownership or controlling interest)
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having by the terms thereof ordinary voting power to
elect a majority of the directors (if a corporation) or
to select the trustee or exercise equivalent controlling
interest (irrespective of whether or not at the time
stock of any class or classes of such corporation or
other interest of such entity shall have or might have
voting power by reason of the happening of any
contingency), is at any relevant time directly or
indirectly owned or controlled by such Person or one or
more other Subsidiaries of such Person or any
combination thereof.
1.1.125 "Substituted Revolving Credit Notes" will mean the notes
evidencing the Revolving Credit Loans, which shall be in
the form attached hereto as Exhibit C, and will include
all amendments, extensions and renewals made thereto
from time to time.
1.1.126 "Swingline Commitment" will mean the credit facility in
an amount not to exceed $1,000,000 from PNC Bank,
National Association, as such amount may be reduced from
time to time pursuant to Section 2.8, below, evidenced
by the Swingline Note.
1.1.127 "Swingline Conditions" will mean the conditions
specified in Section 2.2A, below.
1.1.128 "Swingline Documents" will mean the Swingline Note and
all riders, trust agreements and other documents
relating to money management services provided by PNC
Bank to the Company executed in connection with the
Swingline Note.
1.1.129 "Swingline Subfacility" will mean the Credit Facility
described in Section 2.2A, below.
1.1.130 "Swingline Loan(s)" will mean the advances made pursuant
to Section 2.2A below.
1.1.131 "Swingline Note" will mean the promissory note
evidencing the Swingline Loan(s), which shall be in the
form attached hereto as Exhibit H, and will include all
amendments, extensions and renewals made thereto from
time to time.
1.1.132 "Tangible Net Worth" at any particular time, with
respect to any particular Person, will mean (i) the sum
of the amounts appearing on the balance sheet of such
Person as (a) the stated value of all outstanding stock
and (b) capital, paid-in and earned surplus; less (ii)
the sum of (a) the deficit in any surplus or capital
account, including treasury stock, (b) any amounts at
which shares of the capital stock of such Person appear
on the asset side of such balance sheet, and (c) any
amounts by which patents, trademarks, trade names,
organizational expenses and other intangible items of
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similar nature and goodwill appear on the asset side of
such balance sheet, all as of the last day of the month
previous to such particular time. In calculating
Tangible Net Worth, FASB 87 pension adjustments after
Fiscal Year end 1994 will be excluded. Tangible Net
Worth will not be increased by any conversion of shares
or other changes in any of the capital accounts that do
not result in a cash equity infusion to the Company.
1.1.133 "Taxes" will have the meaning given that term in Section
2.14 of this Credit Agreement.
1.1.134 "Tender Agent" will mean the Tender Agent under the
Indenture, as applicable.
1.1.135 "Tender Draft" will mean a drawing or drawings under
Exhibit B to any Letter of Credit to be used for payment
of the purchase price of the applicable Bonds tendered
to the Tender Agent in accordance with the Indenture and
not remarketed.
1.1.136 "Term Loan" will mean the Advances made pursuant to
Section 2.2B of this Credit Agreement.
1.1.137 "Termination Date" will mean July 31, 2005; provided,
however, that the Termination Date will in no event be
later than the date on which all of the Commitments for
the Credit Facilities will have been terminated in
whole, whether by expiration or upon acceleration.
1.1.138 "Total Revolving Commitment" will mean the aggregate of
the Revolving Commitment and the Non-Revolving
Commitment.
1.1.139 "Treasury Rate" will mean the weekly average rate for
United States Treasury Notes with maturities of five (5)
years (computed on a constant maturity basis) as
published in the most current version of the Federal
Reserve Board Publication HR.15 as determined by the
Agent on any date of determination.
1.1.140 "Trustee" shall mean the Trustee under the Indenture, as
applicable.
1.1.141 "Type of Advance" refers to the distinction between
Advances bearing interest at the Base Rate or Eurodollar
Rate.
1.1.142 "Unfunded Capital Expenditures" shall mean any capital
expenditures utilizing funds other than funds borrowed
from the Lenders hereunder.
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1.1.143 "Unremarketed Tendered Bonds" means Bonds which (a) have
been tendered for purchase pursuant to optional or
mandatory tender provisions of the Bonds and Indenture,
and (b) have not been successfully remarketed by the
Remarketing Agent prior to 11:00 a.m. on the date of
purchase thereof pursuant to such tender.
1.1.144 "Withdrawal Liability" will mean liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of
ERISA.
1.2 OTHER ACCOUNTING DEFINITIONAL PROVISIONS. Unless otherwise
specified, all accounting terms used herein and all accounting
determinations made hereunder shall be made in accordance with GAAP,
applied consistently with the audited financial statements of the
Company for the Fiscal Year ended March 31, 2002, except for any
inconsistency resulting from any change in accounting principles or
methods adopted by the Company with the agreement of its independent
certified public accountants; provided, however, that if any change
in GAAP or its application occurs hereafter or if the Company adopts
a change to its accounting principles or methods with the agreement
of its independent certified public accountants, and such change
results in a change in the calculations of any financial covenants
or restriction set forth in this Credit Agreement, then the parties
hereto agree to enter into and diligently pursue negotiations in
order to amend such financial covenant or restriction so as to
equitably reflect such change, with the desired result being that
the criteria for evaluating the financial condition and results of
operations of the Company shall be the same after such change as if
such change had not been made. Pending the resolution of any such
negotiations, the Company will provide to each Lender such unaudited
financial statements and proforma statements using the accounting
methods and principles used in the preparation of the audited
financial statements for the year ended March 31, 2002 as are
necessary to enable the Lenders to test the financial covenants and
restrictions contained herein.
1.3 OTHER DEFINITIONAL PROVISIONS. All terms defined in this Credit
Agreement in the singular will have comparable meanings when used in
the plural and vice-versa. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Credit
Agreement will mean this Credit Agreement as a whole and not any
particular provision of this Credit Agreement.
2. CREDIT FACILITIES.
2.1 REVOLVING CREDIT FACILITY.
2.1.1 Each Lender severally agrees to make, subject to the
terms and conditions herein set forth, Revolving Credit
Loans to the Company on any Business Day during the
period from the Closing Date to the Business Day
preceding the Termination Date upon the
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request of the Company in an amount not to exceed the
Available Commitment of such Lender; provided that:
a. such Lender's Ratable Portion of the Aggregate
Outstanding Revolving Credit shall not exceed at
any time such Lender's Revolving Commitment; and
b. no Default or Event of Default exists.
2.1.2 Within the above-described limits, the Company may
borrow under this Section 2.1, prepay pursuant to
Section 2.6.1, below, and reborrow under this Section
2.1.
2.1.3 The Revolving Credit Loans will be evidenced by the
Substituted Revolving Credit Notes and will bear
interest and be payable in the manner set forth herein
and therein. The Company will pay to the Agent for the
account of the Lenders the outstanding principal amount
of, and all accrued and unpaid interest on, all
Revolving Credit Loans on the Termination Date.
2.1.4 The initial term of the Revolving Credit Loans and the
Substituted Revolving Credit Notes will commence on the
Closing Date and expire on the Termination Date. On each
anniversary date of the Substituted Revolving Credit
Notes, the Substituted Revolving Credit Notes and the
Revolving Credit Loans may be extended, in the sole
discretion of the Lenders, for additional periods of one
(1) year each upon the request of the Company by written
notice given to the Agent at least sixty (60) days prior
to the anniversary date. The failure of the Lenders to
respond to such request within thirty (30) days after
receipt of such notice shall be deemed to be a denial of
the request.
2.2 NON-REVOLVING CREDIT FACILITY.
2.2.1 Each Lender severally agrees to make, subject to the
terms and conditions herein set forth, Non-Revolving
Credit Loans to the Company on any Business Day during
the period from the Closing Date to July 11, 2003 upon
the request of the Company in an amount not to exceed
$15,000,000 in the aggregate; provided that:
a. such Lender's Ratable Portion of the Aggregate
Outstanding Non-Revolving Credit shall not exceed
at any time such Lender's Non-Revolving
Commitment; and
b. no Default or Event of Default exists.
2.2.2 Within the above-described limits, the Company may
borrow and repay advances under this Section 2.2 but the
Non-Revolving
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Credit Facility is not a revolving credit facility and
amounts borrowed and repaid may not be reborrowed. The
Lenders will have no obligation to make any advances
under the Non-Revolving Credit Facility on or after July
11, 2003.
2.2.3 Unless otherwise agreed in a Non-Revolving Credit Note,
on the earlier of (i) July 11, 2003 or (ii) the date 90
days after the date of the applicable Non-Revolving
Credit Loan, the amount of such Non-Revolving Credit
Loan will be converted to a term loan payable as
provided in the Non-Revolving Credit Notes and in this
Credit Agreement.
2.2.4 The Non-Revolving Credit Loans will be evidenced by the
Non-Revolving Credit Notes and will bear interest and be
payable in the manner set forth herein and therein. All
Advances under the Non-Revolving Credit Facility will be
due and payable on the Termination Date.
2.2A SWINGLINE LOANS SUBFACILITY.
2.2A.1 PNC Bank, National Association ("PNC Bank") hereby
agrees, on the terms and subject to the conditions set
forth herein and in the other Loan Documents and the
Swingline Documents, to make loans to the Company, in
Dollars, at any time and from time to time during the
period from and including the Closing Date to but not
including the Termination Date (each such loan, a
"Swingline Loan" and collectively, the "Swingline
Loans"); provided that (i) the aggregate principal
amount of the Swingline Loans outstanding at any one
time shall not exceed the Swingline Commitment, (ii) the
aggregate amount of Swingline Loans outstanding plus the
aggregate amount of Revolving Credit Loans outstanding
plus the stated amount of all Standby Letters of Credit
shall not exceed the Revolving Commitment and (iii)
Swingline Loans shall accrue interest at the interest
rate(s) set forth in the Swingline Documents. Prior to
the Termination Date, Swingline Loans may be repaid and
reborrowed by the Company in accordance with the
provisions of this Credit Agreement and the Swingline
Documents.
2.2A.2 The Company agrees to repay all Swingline Loans within
one Business Day of demand therefor by PNC Bank. Each
repayment of a Swingline Loan may be accomplished by
requesting Revolving Loans which request is not subject
to the conditions set forth in Section 7.2 hereof. If
the Company shall fail to timely repay any Swingline
Loan, and in any event upon (i) a request by PNC Bank,
(ii) the occurrence of an Event of Default or (iii) the
acceleration of any Obligations or termination of any
Commitment
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pursuant to Section 11, each other Lender shall irrevocably and
unconditionally purchase from PNC Bank, without recourse or warranty,
an undivided interest and participation in such Swingline Loan in an
amount equal to such other Lender's Ratable Portion thereof, by
directly purchasing a participation in such Swingline Loan in such
amount (regardless of (A) whether the conditions precedent thereto set
forth in Section 7 hereof are then satisfied, (B) whether or not the
Company has submitted a Notice of Borrowing and whether or not the
Commitments are then in effect, (C) whether any Event of Default
exists or (D) whether all the Obligations have been accelerated) and
paying the proceeds thereof to PNC Bank at such address as PNC Bank
may designate, in Dollars and in immediately available funds. If such
amount is not in fact made available to PNC Bank by any Lender, PNC
Bank shall be entitled to recover such amount on demand from such
Lender, together with accrued interest thereon for each day from the
date of demand thereof, if paid within two Business Days after demand
at the Federal Funds Rate and thereafter at the Base Rate. If such
Lender does not pay such amount forthwith upon PNC Bank's demand
therefor, and until such time as such Lender makes the required
payment, PNC Bank shall be deemed to continue to have outstanding
Swingline Loans in the amount of such unpaid participation obligation
for all purposes of the Loan Documents other than those provisions
requiring the other Lenders to purchase a participation therein.
Further, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans, and any other
amounts due to it hereunder to PNC Bank to fund Swingline Loans in the
amount of the participation in Swingline Loans that such Lender failed
to purchase pursuant to this Section 2.2A.2 until such amount has been
purchased (as a result of such assignment or otherwise).
2.2A.3 The Swingline Loans shall be evidenced by the Swingline Note and
Swingline Loans may be subject to PNC Bank's automated money
management procedures as set forth in the Swingline Note and the
other Swingline Documents.
2.2B TERM LOAN. The Lenders previously extended a non-revolving credit loan to
the Company pursuant to Section 2.2 of this Credit Agreement (as in effect
prior to the date hereof) in the original principal amount of $7,200,000,
and with an outstanding principal balance on the date hereof equal to
$4,680,000. Such loan is the Term Loan under this Credit Agreement. Subject
to acceleration upon the occurrence of an Event of Default or termination
of this Credit Agreement, the outstanding principal balance of the Term
Loan will be due and payable in quarterly installments of principal of
$360,000 each, commencing on July 31, 2002 and continuing on the last
Business Day of each October, January, April and July thereafter until the
Termination Date, at which time any remaining
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outstanding principal will be due and payable in full. In addition to the
scheduled principal payments, accrued interest on the Term Loan will be due
and payable on the interest payment dates set forth in Section 2.7.5
hereof. The Term Loan shall be evidenced by one or more promissory notes
(collectively, the "Term Note") in substantially the form attached hereto
as Exhibit J. The Company and the Lenders intend that all of the Lenders
shall share the obligations and risks as to the Term Loan in accordance
with their respective Ratable Portions (based on their Revolving
Commitments).
2.3 MANNER OF BORROWING.
2.3.1 REVOLVING BORROWINGS. Except as otherwise provided herein, the
Company will give the Agent a Notice of Borrowing with respect to
each Borrowing under the Revolving Credit Facility, not later than
11:00 a.m. (Cincinnati time) on (a) the Business Day of the proposed
Borrowing Date in the case of a Borrowing consisting of Base Rate
Advances and (b) three (3) Business Days prior to the proposed
Borrowing Date, in the case of a Borrowing consisting of Eurodollar
Rate Advances. The Agent will give to each Lender prompt notice
thereof by telex, telecopier or cable. Each Notice of Borrowing shall
be by telecopier (or by telephonic notice confirmed in writing by a
Notice of Borrowing delivered no later than the close of business on
the day on which such telephonic notice is given), specifying therein
all matters required by such Notice, including but not limited to the
requested (i) Borrowing Date, (ii) Credit Facility under which such
Borrowing is to be made, (iii) the amount and Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing,
and (v) in the case of a Borrowing consisting of Eurodollar Rate
Advances the initial Interest Period for each such Advance. In the
case of a proposed Borrowing comprised of Eurodollar Rate Advances,
the Agent shall promptly notify each Lender of the applicable
Eurodollar Rate. Each Revolving Loan that is a Eurodollar Rate
Advance shall be in an aggregate principal amount of $500,000 or in
integral multiples of $100,000 in excess thereof. The Lenders will
have no obligation to make Eurodollar Rate Advances if thereafter
there would be outstanding under the Revolving Credit Facility and
the Non-Revolving Credit Facility Eurodollar Rate Advances with
Interest Periods that end on more than nine (9) different dates. If
the Company fails to specify an Interest Period with respect to a
Eurodollar Rate Advance, or fails to specify the Type of any Advance,
or fails to provide any other information required by such Notice as
to an Advance, the Company shall be deemed to have selected a
Borrowing that is a Base Rate Advance. Each Lender shall, before 1:00
p.m. (Cincinnati time) on the Borrowing Date, make available for the
account of its Applicable Lending Office to the Agent at the Agent's
Account, in same day
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funds, such Lender's Ratable Portion of such Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Section 7 hereof, the Agent will make such
funds available to the Company by crediting the Cash Collateral
Account.
2.3.2 NON-REVOLVING BORROWINGS. Except as otherwise provided herein, the
Company will give the Agent a Notice of Borrowing with respect to
each Borrowing under the Non-Revolving Credit Facility, not later
than 11:00 a.m. (Cincinnati time) on (a) the Business Day of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate
Advances and (b) three (3) Business Days prior to the proposed
Borrowing Date, in the case of a Borrowing consisting of Eurodollar
Rate Advances. The Agent will give to each Lender prompt notice
thereof by telex, telecopier or cable. Each Notice of Borrowing shall
be by telecopier (or by telephonic notice confirmed in writing by a
Notice of Borrowing delivered no later than the close of business on
the day on which such telephonic notice is given), specifying therein
all matters required by such Notice, including but not limited to the
requested (i) Borrowing Date, (ii) Credit Facility under which such
Borrowing is to be made, (iii) the amount and Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing,
and (v) in the case of a Borrowing consisting of Eurodollar Rate
Advances, the initial Interest Period for each such Advance. In the
case of a proposed Borrowing comprised of Eurodollar Rate Advances,
the Agent shall promptly notify each Lender of the applicable
Eurodollar Rate. Each Non-Revolving Loan that is a Base Rate Advance
shall be in an aggregate principal amount of $250,000 or in integral
multiples of $50,000 in excess thereof. Each Non-Revolving Loan that
is a Eurodollar Rate Advance shall be in an aggregate principal
amount of $500,000 or in integral multiples of $100,000 in excess
thereof. The Lenders will have no obligation to make Eurodollar Rate
Advances if thereafter there would be outstanding under the Non-
Revolving Credit Facility and the Revolving Credit Facility
Eurodollar Rate Advances with Interest Periods that end on more than
nine (9) different dates. If the Company fails to specify an Interest
Period with respect to a Eurodollar Rate Advance, or fails to specify
the Type of any Advance, or fails to provide any other information
required by such Notice as to an Advance, the Company shall be deemed
to have selected a Borrowing that is a Base Rate Advance. Each Lender
shall, before 1:00 p.m. (Cincinnati time) on the Borrowing Date, make
available for the account of its Applicable Lending Office to the
Agent at the Agent's Account, in same day funds, such Lender's
Ratable Portion of such Borrowing. After the Agent's receipt of such
funds and upon fulfillment of the
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applicable conditions set forth in Section 7 hereof, the Agent will
make such funds available to the Company by crediting the Cash
Collateral Account.
2.3.3 SWINGLINE BORROWINGS. Borrowings under the Swingline Subfacility will
be made in accordance with the Swingline Documents.
2.4 ADDITIONAL PROVISIONS REGARDING FUNDING.
2.4.1 As to all Advances, the Agent may assume that each Lender will make
its Advances available to the Agent on the Borrowing Date in
accordance with this Credit Agreement and the Agent may, but shall
not be obligated to, advance to the Company on such Lender's behalf
such Lender's Advance, or any portion of such share, for the account
of such Lender unless such Lender shall have notified the Agent in
writing (a) in the case of a Base Rate Advance, prior to 2:00 p.m.
(Cincinnati time) on the Borrowing Date, or (b) in the case of any
other Advance, prior to 2:00 p.m. (Cincinnati time) on the Business
Day prior to the Borrowing Date, that funds will not be made
available by such Lender for such Advance, in which case the Agent
promptly shall notify the Company of such fact. If any such funds are
so advanced by the Agent, such Lender and the Company severally agree
to pay such amount to the Agent, forthwith on demand, but no later
than the Wednesday following the date such funds are advanced,
together with interest thereon for each day from the date such amount
is made available to the Company until the date such amount is paid
to the Agent, at (i) in the case of the Company, a rate per annum
equal to the Interest Rate payable by the Company with respect to
such Loan in effect from time to time while such Advance is
outstanding and (ii) in the case of such Lender, two percent (2%) in
excess of the Federal Funds Rate. If such Lender shall pay to the
Agent such amount, such amount so paid shall constitute such Lender's
Advance as part of such Borrowing.
2.4.2 No Lender's obligation to make any Advance shall be affected by any
other Lender's failure to make funds available for the same or any
other Borrowing, nor shall any Lender be liable for the failure of
any other Lender to fulfill an obligation to make any Advance.
2.5 CONVERSIONS AND CONTINUATION OF ADVANCES.
2.5.1 OPTIONAL CONVERSION. Subject to the terms and conditions of this
Credit Agreement and provided that no Default or Event of Default
shall have occurred and be continuing, upon delivery to the Agent of
a Notice of Conversion, the Company (a) may convert any
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Eurodollar Rate Advance under the Revolving Credit Facility or the
Non-Revolving Credit Facility upon expiration of the applicable
Interest Period, or may convert any Base Rate Advance under the
Revolving Credit Facility or the Non-Revolving Credit Facility at any
time, to a Eurodollar Rate Advance or a Base Rate Advance, as the
case may be, under the same Credit Facility. Any such Notice of
Conversion shall be delivered to the Agent prior to 11:00 a.m.
(Cincinnati time) two (2) Business Days prior to the proposed
Conversion Date (which must, except for conversions to Base Rate
Advances, be the last day of the applicable Interest Period). The
Agent will give to each Lender prompt notice thereof by telex,
telecopier or cable. Each Notice of Conversion shall be by telex,
telecopier or cable (or by telephone notice confirmed in writing by a
Notice of Conversion delivered no later than the close of business on
the day on which such telephonic notice is given), specifying therein
all matters required by such Notice, including but not limited to the
following: (a) the requested Conversion Date (which must be a
Business Day), (b) the amount and Type of Advances to be converted,
(c) the Credit Facility under which the Advance to be converted
originally was made and (d) if such conversion is to a Eurodollar
Rate Advance, the initial Interest Period for such Advance.
Notwithstanding the foregoing, each converted Advance that is a
Eurodollar Rate Advance shall be in an aggregate principal amount of
$500,000 or in integral multiples of $100,000 in excess thereon or in
the full remaining principal amount thereof; and after giving effect
to any such conversion there shall not be outstanding, under the
Revolving Credit Facility and the Non-Revolving Credit Facility,
Eurodollar Rate Advances with Interest Periods that end on more than
nine (9) different dates; and no Advance shall be converted to an
Advance under a Credit Facility other than the Credit Facility under
which such Advance originally was made.
2.5.2 CONTINUATION. Subject to the terms and conditions of this Credit
Agreement and provided that no Default or Event of Default shall have
occurred and be continuing, the Company may elect to continue any
Eurodollar Rate Advance under a Credit Facility as such under such
Credit Facility (at the Interest Rate applicable to such Type of
Advance determined as of the new Interest Period) upon expiration of
the applicable Interest Period by delivering to the Agent a Notice of
Continuation prior to 11:00 a.m. (Cincinnati time) two (2) Business
Days prior to the last day of the then current Interest Period
applicable to such Advance. The Agent will give to each Lender prompt
notice thereof by telex, telecopier or cable. Each Notice of
Continuation shall be by telex, telecopier or cable (or by telephone
notice confirmed in writing by a Notice of Continuation delivered no
later than the close of business on the
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day on which such telephonic notice is given), specifying therein all
matters required by such Notice, including but not limited to the
following: (a) the requested Continuation Date (which must be a
Business Day), (b) the amount and Type of Advances to be continued
and (c) the Interest Period for such continued Advance.
Notwithstanding the foregoing, each such continued Advance shall be
in an aggregate principal amount of $500,000 or in integral multiples
of $100,000 in excess thereof or in the full remaining principal
amount thereof; and after giving effect to any such continuation
there shall not be outstanding under the Revolving Credit Facility
and the Non-Revolving Credit Facility Eurodollar Rate Advances with
Interest Periods that end on more than nine (9) different dates.
2.5.3 AUTOMATIC CONVERSION. If the Company shall fail to give a timely and
complete Notice of Conversion or Notice of Continuation with respect
to an outstanding Advance in accordance with this Credit Agreement,
or any requested conversion or continuation otherwise fails to
satisfy the applicable requirements of this Credit Agreement, the
Company shall be deemed to have elected to convert such outstanding
Advance to a Base Rate Advance on the last day of the applicable
Interest Period. Advances also are subject to automatic conversion
under the circumstances set forth in Section 2.16, below.
2.6 PREPAYMENT OF CREDIT FACILITIES.
2.6.1 OPTIONAL PREPAYMENT. Subject to the terms and conditions of this
Credit Agreement, the Company may elect to prepay all or any part of
an Advance (except for Eurodollar Rate Advances) at any time by
delivering to the Agent a Notice of Prepayment prior to the proposed
prepayment in the case of a Base Rate Advance, and at least three (3)
Business Days prior to the proposed date of prepayment in the case of
a Eurodollar Rate Advance, provided that each such partial prepayment
of any Advance other than a Base Rate Advance shall be in an
aggregate principal amount of $250,000 or an integral multiple of
$50,000 in excess thereof and provided further that each prepayment
of any Advance shall be accompanied by payment of the accrued
interest to the date of prepayment on the principal amount prepaid
and any amounts payable pursuant to Section 2.17 hereof as a result
of such prepayment. Each Notice of Prepayment must specify, as to
each Advance being prepaid, the proposed prepayment date, the Advance
being prepaid and the aggregate principal amount of the prepayment.
All prepayments shall be paid to the Agent.
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2.6.2 MANDATORY PREPAYMENT.
2.6.2.1 In the event that the Aggregate Outstanding Revolving Credit
would in whole or in part exceed any applicable Revolving
Commitment, whether after giving effect to any reduction or
termination of the applicable Total Revolving Commitment or
otherwise, the Company shall, within one (1) Business Day,
make a prepayment of principal in an amount sufficient to
eliminate the excess, plus all accrued interest thereon and
any amounts payable pursuant to Section 2.17 hereof.
2.6.2.2 Immediately upon receipt by the Company or any of its
Subsidiaries of proceeds (including insurance proceeds) from
any disposition of any or all of the assets (including the
capital stock) of the Company or any of its Subsidiaries
whether by sale, lease, transfer or otherwise (other than (i)
sale of inventory in the ordinary course of business, (ii)
other dispositions of obsolete, under-utilized or idle assets
in the ordinary course of business, and (iii) sales of
equipment of up to $300,000 in the aggregate during the term
of this Credit Agreement), the Company shall pay an amount
equal to 100% of the proceeds of such asset disposition to the
Agent as a prepayment of the Term Loan (applied in the inverse
order of maturity) until the Term Loan is paid in full and
thereafter as a prepayment to the other Obligations (to be
applied as reasonably determined by the Agent, including the
deposit thereof into a cash collateral account in respect of
letter of credit obligations); provided that during the term
of this Credit Agreement the Company may use up to $500,000 in
the aggregate of proceeds of such asset sales to acquire
substitute assets in the ordinary course of business if
(i) such substitute assets automatically would become part of
acquire Collateral without further action of the Company or
any Lender upon the Company's acquisition thereof and (ii)
such substitute assets are acquired simultaneously with, or
within 120 days after, the Company's receipt of such asset
sale proceeds. Mandatory prepayments required hereunder will
be reduced by the amount of any voluntary prepayments of the
Term Loan.
2.6.2.3 The Company will pay to the Agent, for the benefit of the
Lenders, an amount equal to 50% of Excess Cash Flow within 120
days after the end of each Fiscal Year until such time as, and
for so long as, the Agent determines that the Leverage Ratio
is less than 2.5 to 1.0, which funds when
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received will be applied (in the inverse order of maturity)
as a prepayment to the Term Loan.
2.7 INTEREST ON THE ADVANCES.
2.7.1 INTEREST ON REVOLVING CREDIT LOANS. Each Revolving Loan shall bear
interest from the Borrowing Date thereof on the principal amount
thereof from time to time outstanding until due and payable (whether
at the stated maturity, by acceleration or otherwise) as follows: (a)
in the case of a Base Rate Advance, at a fluctuating rate per annum
equal to the Base Rate as from time to time in effect plus the
Applicable Margin and (b) in the case of a Eurodollar Rate Advance,
at a rate per annum equal to the Eurodollar Rate for the Interest
Period applicable to such Eurodollar Rate Advance plus the Applicable
Margin. The Applicable Margin will be adjusted as of the first day of
the month following delivery of the quarterly financial statements
required hereunder based upon the Leverage Ratio determined by the
Agent pursuant to those financial statements; provided that if the
Company fails to deliver such financial statements as and when
required by this Credit Agreement the Applicable Margin will
automatically be increased to the highest rate permitted hereunder.
2.7.2 INTEREST ON SWINGLINE LOANS. Accrued interest on all Swingline Loans
will be paid in accordance with the Swingline Documents.
2.7.3 INTEREST ON NON-REVOLVING CREDIT LOANS AND TERM LOAN. Each
Non-Revolving Loan and the Term Loan shall bear interest from the
Borrowing Date thereof on the principal amount thereof from time to
time outstanding until due and payable (whether at the stated
maturity, by acceleration or otherwise) as follows: (a) in the case
of a Base Rate Advance, at a fluctuating rate per annum equal to the
Base Rate as from time to time in effect plus the Non-Revolving
Applicable Margin and (b) in the case of a Eurodollar Rate Advance,
at a rate per annum equal to the Eurodollar Rate for the Interest
Period applicable to such Eurodollar Rate Advance plus the Non-
Revolving Applicable Margin. The Non-Revolving Applicable Margin will
be adjusted as of the first day of the month following delivery of
the quarterly financial statements required hereunder based upon the
Leverage Ratio determined by the Agent pursuant to those financial
statements; provided that if the Company fails to deliver such
financial statements as and when required by this Credit Agreement,
the Non-Revolving Applicable Margin will automatically be increased
to the highest rate permitted hereunder.
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2.7.4 NON-REVOLVING CREDIT LOANS PAYMENT DATES. Unless otherwise agreed in
a Non-Revolving Credit Note, following the Amortization Commencement
Date, the principal of the Non-Revolving Credit Loans will be due and
payable in quarterly installments equal to an amount necessary to
amortize the Non-Revolving Credit Loans over a period of five (5)
years (or such longer period as the Lenders may determine in their
sole discretion), commencing on the first Business Day of the month
immediately following the Amortization Commencement Date, and
continuing on the first Business Day of each third month thereafter
until the Termination Date, at which time any remaining outstanding
principal will be due. Accrued interest on the Non-Revolving Credit
Loans will be due and payable on the interest payment dates set forth
in Section 2.7.5 hereof.
2.7.5 INTEREST PAYMENT DATES.
2.7.5.1 Except for interest on Swingline Loans, accrued interest on
all Base Rate Advances shall be payable as follows: (i)
quarterly on the last Business Day of each June, September,
December and March, (ii) on the date any such Advance is
converted or continued (if applicable) or paid in full, (iii)
on the Termination Date, and (iv) after maturity, on demand.
2.7.5.2 Accrued interest on all Eurodollar Rate Advances shall be
payable as follows: (i) on the last day of the Interest Period
for such Advance (unless the Interest Period for such Advance
is in excess of three (3) months, in which event accrued
interest also must be paid on the first day of each third
month following the commencement of such Interest Period),
(ii) on the date any such Advance is converted or continued
(if applicable) or paid in full, (iii) on the Termination
Date, and (iv) after maturity, on demand.
2.7.6 DEFAULT RATE. Upon the occurrence and during the continuance of any
Event of Default, the unpaid principal amount of each Advance, and to
the extent not paid when due, the unpaid amount of all interest,
fees, expenses and other amounts payable hereunder, shall bear
interest at the Default Rate in effect from time to time. The waiver
by the Agent of the right to charge the Default Rate, the failure of
the Agent to charge the Default Rate or the acceptance by the Agent
of any payment bearing interest at the Default Rate, in any instance,
shall not prejudice any of the Agent's rights or remedies contained
herein or be deemed to extend the applicable cure period for the
Default in question or to create any
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cure period for any default for which this Credit Agreement does not
specifically provide a cure period.
2.8 TERMINATION OR REDUCTION OF COMMITMENTS BY THE COMPANY. The Company shall
have the right from time to time to terminate the Standby Letter of Credit
Commitment, the Swingline Commitment, the Revolving Commitment and/or the
Non-Revolving Commitment, or reduce the Standby Letter of Credit, the
Swingline Commitment, the Revolving Commitment and/or the Non-Revolving
Commitment upon not less than thirty (30) Business Days' prior notice by
the Company to the Agent in writing or by telecopy or facsimile
transmission, which notice shall (a) specify the Commitment being
terminated or the Commitment being reduced, (b) specify the effective date
of such termination or reduction, (c) be irrevocable and effective only
upon receipt by the Agent and (d) be signed by an Authorized Employee of
the Company; provided, however, that after giving effect to any such
termination or reduction, all applicable Standby Letter of Credit
Conditions, Swingline Conditions and/or Revolving Conditions must be
satisfied. Any optional reduction of the Revolving Commitment or the
Non-Revolving Commitment shall be in the amount of $1,000,000 or in
integral multiples of $100,000 in excess thereof or in the full amount of
the Commitment as then in effect. Any termination or reduction pursuant to
this Section 2.8 shall be permanent. The Agent promptly shall give notice
to each Lender of any termination or reduction hereunder. Any such
termination or reduction shall be accompanied by a payment of accrued but
unpaid interest, principal in an amount sufficient to eliminate the excess
over the Commitment as reduced or terminated, the accrued but unpaid
Commitment Fee with respect to the amount of the Commitment that is
terminated or reduced and any amounts payable pursuant to Section 2.17,
below.
2.9 RECORDS. Each Lender is hereby authorized by the Company to record on the
schedule attached to the Notes or in its books and records, the date,
amount, Interest Rate, and applicable Interest Period, if any, of each
Advance made to the Company, the date and amount of each payment of
principal or interest thereon, and the other information provided for on
such schedule, which schedule or books and records, as the case may be,
will constitute prima facie evidence of the accuracy of the information so
recorded, provided, however, that failure of any Lender to record, or any
error in recording, any such information will not relieve the Company of
its obligation to repay the outstanding principal amount of the Advances,
all accrued interest thereon, and other amounts payable with respect
thereto in accordance with the terms of the Notes and this Credit
Agreement.
2.10 LETTER OF CREDIT FACILITIES.
2.10.1 ISSUANCE OF SCOTTSBURG ALTERNATE LETTER OF CREDIT. The Company has
requested the Agent, as agent and for the account of the Lenders, to
issue the Scottsburg Alternate Letter of Credit to the Trustee.
Subject to the conditions precedent hereinafter set forth, the Agent
has issued, and the Lenders hereby confirm the
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authority of the Agent to issue, to the Trustee pursuant to the
request of the Company the Scottsburg Alternate Letter of Credit in
the Scottsburg Alternate Letter of Credit Amount. The Interest
Portion of the Scottsburg Alternate Letter of Credit Amount has been
established on the basis of two hundred ten (210) days' interest on
the Scottsburg Bonds, at an assumed maximum interest rate of 15% per
annum. The Scottsburg Alternate Letter of Credit shall expire at
5:00 p.m. on June 1, 2003, or if such day is not a Business Day, on
the next succeeding Business Day, subject to renewal as provided
therein. The Scottsburg Alternate Letter of Credit is subject to
prior automatic termination as provided therein. The payment of all
drawings honored under the Scottsburg Alternate Letter of Credit
will be made with the Agent's own funds. Draws under the Scottsburg
Alternate Letter of Credit are not available to pay any amounts due
under any other Letter of Credit.
2.10.2 [RESERVED].
2.10.3 ISSUANCE OF 1997 SCOTTSBURG LETTER OF CREDIT. The Company has
requested the Agent, as agent and for the account of the Lenders, to
issue the 1997 Scottsburg Letter of Credit to the Trustee. Subject
to the conditions precedent hereinafter set forth, the Agent has
issued, and the Lenders hereby confirm the authority of the Agent to
issue, to the Trustee pursuant to the request of the Company, the
1997 Scottsburg Letter of Credit in the 1997 Scottsburg Letter of
Credit Amount. The Interest Portion of the 1997 Scottsburg Letter of
Credit Amount has been established on the basis of sixty (60) days'
interest on the 1997 Scottsburg Bonds, at an assumed maximum
interest rate of 10% per annum. The 1997 Scottsburg Letter of Credit
shall expire at 5:00 p.m. on June 1, 2003, subject to renewal as
provided therein. The 1997 Scottsburg Letter of Credit is subject to
prior automatic termination as provided therein. The payment of all
drawings honored under the 1997 Scottsburg Letter of Credit will be
made with the Agent's own funds. Draws under the 1997 Scottsburg
Letter of Credit are not available to pay any amounts due under any
other Letter of Credit.
2.10.4 ISSUANCE OF MCC-BATAVIA ALTERNATE LETTER OF CREDIT. The Company has
requested the Agent, as agent and for the account of the Lenders, to
issue the MCC-Batavia Alternate Letter of Credit to the Trustee.
Subject to the conditions precedent hereinafter set forth, the Agent
has issued, and the Lenders hereby confirm the authority of the
Agent to issue, to the Trustee at the request of MCC-Batavia, the
MCC-Batavia Alternate Letter of Credit in the MCC-Batavia Alternate
Letter of Credit Amount. The Interest Portion of the MCC-Batavia
Alternate Letter of Credit Amount has
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been established on the basis of one hundred ten (110) days'
interest on the MCC-Batavia Bonds, at an assumed maximum interest
rate of 10% per annum. The MCC-Batavia Alternate Letter of Credit
shall expire at 5:00 p.m. on June 1, 2003. The MCC-Batavia Alternate
Letter of Credit is subject to prior automatic termination as
provided therein. The payment of all drawings honored under the MCC-
Batavia Alternate Letter of Credit will be made with the Agent's own
funds. Draws under the MCC-Batavia Alternate Letter of Credit are
not available to pay any amounts due under any other Letter of
Credit.
2.10.5 REIMBURSEMENT AND OTHER PAYMENTS. The Company hereby agrees to pay
or cause to be paid to the Agent:
2.10.5.1 a sum equal to each amount drawn under the Letters of Credit
by an Interest Draft, on the same Business Day that such
amount is so drawn after such draw is honored by the Agent;
2.10.5.2 a sum equal to each amount drawn against the Interest Portion
of the Letter of Credit Amounts by a Tender Draft (a) in the
case of any such amount drawn on an Interest Payment Date (as
defined in the Indenture) of the Bonds being purchased with
the proceeds of such Tender Draft, the same Business Day that
such amount is so drawn after such draw is honored by the
Agent, and (b) in all other cases, on the first to occur of
(i) the first Business Day of the first calendar month
following the calendar month in which such amount is so
drawn, (ii) the date on which the Bonds purchased with the
proceeds of such Tender Draft are remarketed by the
Remarketing Agent and the proceeds thereof delivered to the
Trustee, (iii) the date on which the Bonds purchased with the
proceeds of such Tender Draft are redeemed or otherwise paid
in full, or (iv) the date the Liquidity Period terminates;
2.10.5.3 a sum equal to each amount drawn against the Principal
Portion of the Letter of Credit Amounts by a Tender Draft
(for the purpose of this subparagraph 2.10.5.3 the "Principal
Draft Amount") payable as follows:
a. Subject to the terms set forth in this Section 2.10.5, the
Agent will hold Unremarketed Tendered Bonds for up to four
hundred fifty-eight (458) days. During the period, if any,
that Unremarketed Tendered Bonds are held by the Agent, the
Company will continue to make all principal and interest
payments on such Bonds. Upon payment in full of
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all sums due the Agent in connection with any Tender Draft,
the Agent will deliver any Bonds held by the Agent, or its
agent, in connection with such Tender Draft to such person
or persons as the Trustee or Company may direct. In the
event that there shall be a Tender Draft on or after four
hundred fifty-eight (458) days after the first Tender Draft,
the Company will pay to the Agent on each day after any
payment is made under any of the Letters of Credit pursuant
to any Tender Draft an amount equal to such amount so paid
under the Letters of Credit. On the first to occur of (i)
the termination of a Letter of Credit in accordance with its
terms, or (ii) four hundred fifty-eight (458) days after any
Bond subject to a Tender Draft has been delivered to the
Agent and has not been remarketed, the Company will pay to
the Agent an amount equal to the principal amount of and
interest on all Bonds subject to such Tender Draft;
b. anything contained in subparagraph 2.10.5.3(a), above
notwithstanding, the Principal Draft Amount shall be
immediately due and payable from time to time on the first
to occur of (i) the date on which the Bonds purchased with
the proceeds of such Tender Draft are remarketed by the
Remarketing Agent and the proceeds thereof are delivered to
the Trustee, (ii) the date on which the Bonds purchased with
the proceeds of such Tender Draft are redeemed or otherwise
paid in full, or (iii) the date the Liquidity Period
terminates; and
2.10.5.4 a sum equal to each amount drawn under the Letters of Credit
by a Redemption Draft, on the same Business Day that such
amount is so drawn after such draw is honored by the Agent.
All sums payable to the Agent under this Section 2.10.5 shall bear
interest, from the date the corresponding amount is drawn against and
paid by the Agent under the Letters of Credit until such sums are paid
in full (it being understood and agreed that any sum paid after 3:00
p.m. on a Business Day shall bear interest as if it was paid at 9:00
a.m. on the next following Business Day), at a fluctuating rate per
annum (computed for the actual number of days elapsed, based on a
three hundred sixty (360) day year) equal to the Bank Interest Rate;
provided that if any sum or interest thereon payable to the Agent
under this Section 2.10.5 is not paid on the date such sum or interest
is due and payable to the Agent under this Agreement, or if any other
Event of Default as defined herein has occurred and is continuing,
then all such sums shall thereafter bear interest at a fluctuating
rate per annum (computed for the actual number of days
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elapsed, based on a three hundred sixty (360) day year, as the case
may be) equal to the Default Rate until such sum or interest and all
other amounts due and payable under this Credit Agreement have been
paid in full. Interest payable under this Section 2.10.5 shall be
reduced by amounts paid to the Agent as the holder of Bonds pledged to
it hereunder.
Interest accruing on sums payable to the Agent pursuant to this
Section 2.10.5 shall be due and payable on the first Business Day of
each calendar month after the date the corresponding amount is drawn
under the Letter of Credit and on the date the respective sum is paid.
All payments under this Section 2.10.5 shall be applied first to the
payment of interest due and payable under this Section 2.10.5 and then
to the reduction of the principal balance of sums due and payable
under this Section 2.10.5.
2.10.6 TRANSFER; REDUCTION; REINSTATEMENT.
2.10.6.1 TRANSFER; FEE. The Letters of Credit may be transferred
in accordance with the provisions set forth in the
applicable Letter of Credit. The Company will pay to the
Agent upon each transfer of a Letter of Credit in
accordance with its terms the greater of $1,000 plus all
out-of-pocket expenses or such other amount which is at
the time of transfer the charge that the Agent is making
for transfers of similar letters of credit.
2.10.6.2 REDUCTION. The Letter of Credit Amounts and the
respective Principal Portion and Interest Portion of the
Letters of Credit shall be automatically reduced as
specified in the applicable Letter of Credit. With
respect to any reductions of the Letter of Credit
Amounts pursuant to the terms of the Letters of Credit
as a result of Bonds ceasing to be Outstanding, the
Agent shall have the right, at its option, to require
the Trustee to promptly surrender the respective
outstanding Letter of Credit to the Agent and to accept
in substitution therefor a substitute letter of credit
in the form required by such Letter of Credit, dated
the date of such substitution, for an amount equal to
the Letter of Credit Amount as so reduced, but otherwise
having terms identical to the then outstanding
Scottsburg Alternate Letter of Credit, 1997 Scottsburg
Letter of Credit or MCC-Batavia Alternate Letter of
Credit, as the case may be.
2.10.6.3 REINSTATEMENT. In the event of a drawing under any
Letter of Credit with an Interest Draft, the Interest
Portion of the Letter of Credit Amount shall, as
provided in the applicable Letter of Credit and subject
to the conditions therein set
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Credit Amount shall,
forth, be automatically reinstated by an amount equal to
the amount of such drawing. In the event of a drawing
under a Letter of Credit with a Tender Draft, the
Principal Portion and Interest Portion of the Letter of
Credit Amount shall, as provided in the applicable
Letter of Credit, be reinstated with respect to such
drawing when and to the extent that the Agent has
received reimbursement for such drawing in immediately
available funds (or the Trustee has received immediately
available funds which, pursuant to the Indenture, the
Trustee will immediately remit to the Agent as
reimbursement for such drawing).
2.10.6.4 CONFLICTS. In the event of any conflict between any
Letter of Credit and this Section 2.10.6, the terms of
such Letter of Credit will take precedence and be
controlling.
2.10.7 OBLIGATIONS ABSOLUTE. The obligations of the Company under this
Credit Agreement shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with
the terms of this Agreement, under all circumstances
whatsoever, including without limitation the following
circumstances: (i) any lack of validity or enforceability of
the Letters of Credit, the Bond Documents, the Loan Documents
or any other agreement or document relating thereto; (ii) any
amendment or waiver of or any consent to or departure from the
Letters of Credit, the Bond Documents, or any document relating
thereto; (iii) the existence of any claim, set off, defense or
other right which the Company may have at any time against the
Trustee (or any persons or entities for whom the Trustee may be
acting), the Remarketing Agent, the Agent, the Lenders or any
other person or entity, whether in connection with this
Agreement, the transactions described herein or any unrelated
transaction; or (iv) any of the circumstances contemplated in
clauses (i) through (vii), inclusive, of Section 2.10.9 of this
Credit Agreement. The Company understands and agrees that no
payment by it under any other agreement (whether voluntary or
otherwise) shall constitute a defense to its obligations
hereunder, except to the extent that the Agent has been
indefeasibly paid in full.
2.10.8 INDEMNIFICATION. To the extent permitted by applicable law, the
Company hereby indemnifies and holds harmless the Agent (and
its directors, officers, employees and agents) from and against
any and all claims, damages, loss, liabilities, costs or
expenses (including reasonable attorneys' fees for counsel of
the Agent's choice) whatsoever which the Agent may incur (or
which may be claimed against the Agent by any person or entity
whatsoever) by reason of or in connection with (A) the issuance
or transfer of, or
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payment or failure to pay under, the Letters of Credit, (B) any
breach by the Company of any representation, warranty,
covenant, term or condition in, or the occurrence of any
default under, this Credit Agreement or the Bond Documents,
including all reasonable fees or expenses resulting from the
settlement or defense of any claims or liabilities arising as a
result of any such breach or default, and (C) involvement of
the Agent in legal suit, investigation, proceeding, inquiry or
action as a consequence, direct or indirect, of the Agent's
issuance of the Letters of Credit, its entering into this
Credit Agreement or any other event or transaction contemplated
by any of the foregoing; provided the Company shall not be
required to indemnify the Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by (i) the willful misconduct or gross
negligence of the Agent or (ii) the Agent's failure to pay
under the Letters of Credit after the presentation to it by the
Trustee of a draft and certificate strictly complying with the
terms and conditions of the Letters of Credit, unless the Agent
in good faith believes that it is prohibited by law from making
such payment. Nothing in this Section is intended to limit the
Company's reimbursement obligations contained in Section 2.10.5
of this Credit Agreement. The obligations of the Company under
this Section shall survive the termination of this Credit
Agreement.
2.10.9 LIABILITY OF AGENT. As between the Company and the Agent, the
Company assumes all risks of the acts or omissions of the Trustee
with respect to the Trustee's use of the Letters of Credit.
Neither the Agent nor any of its officers or directors shall be
liable or responsible for: (i) the use which may be made of the
Letters of Credit or for any acts or omissions of the Trustee in
connection therewith; (ii) the form, validity, sufficiency,
accuracy or genuineness of any documents (including without
limitation any documents presented under the Letters of Credit),
or of any statement therein or endorsement thereon, even if such
documents, statements or endorsements should in fact prove to be
in any or all respects invalid, insufficient, fraudulent, forged,
inaccurate or untrue; (iii) the payment by the Agent against
presentation of documents which do not comply with the terms of
the Letters of Credit, including failure of any documents to bear
any reference to or adequate reference to the Letters of Credit,
or any other failure by the Trustee to comply fully with
conditions required in order to effect a drawing under the
Letters of Credit; (iv) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign any of the Letters of Credit or the rights or benefit
thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason; (v) errors,
omissions, interruptions, losses or delays in transmission
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or delivery of any message by mail, cable, telegraph,
telex, telephone or otherwise; (vi) any loss or delay in
the transmission or otherwise of any document or draft
required in order to make a drawing under the Letters of
Credit; or (vii) any other circumstances whatsoever in
making or failing to make payment under any of the
Letters of Credit; except only that the Company shall
have a claim against the Agent, and the Agent shall be
liable to the Company, to the extent, but only to the
extent, of any direct, as opposed to consequential,
damages suffered by the Company which the Company proves
were caused by (A) the Agent's willful misconduct or
gross negligence or (B) the Agent's failure to pay under
any of the Letters of Credit after the presentation to
it by the Trustee of a draft and certificate strictly
complying with the terms and conditions of any of the
Letters or Credit, unless the Agent in good faith
believes that it is prohibited by law from making such
payment. In furtherance and not in limitation of the
foregoing, the Agent may accept documents that appear on
their face to be in order, without responsibility for
further investigation, regardless of any notice or
information to the contrary; provided that if the Agent
shall receive written notification from both the Trustee
and the Company that documents conforming to the terms
of the Letters of Credit to be presented to the Agent
are not to be honored, the Agent agrees that it will not
honor such documents.
Except for the Agent's obligations under the Letters of
Credit, the Agent shall have no liability to the Company
or any other Person as a result of any reduction of the
credit rating of the Agent or any deterioration in the
Agent's financial condition. No reduction of the credit
rating shall reduce or in any way diminish the
obligations of the Company to the Agent under this
Credit Agreement, including without limitation the
Company's obligation to pay Letter of Credit Fees to the
Agent and to reimburse the Agent for any drawing under
the Letters of Credit.
2.11 STANDBY LETTER OF CREDIT FACILITY.
2.11.1 STANDBY LETTER OF CREDIT COMMITMENT. The Agent agrees to
issue and renew, and the other Lenders hereby authorize
the Agent to issue and renew, subject to the terms and
conditions set forth in this Section 2.11, Standby
Letters of Credit for the account of the Company from
time to time on any Business Day from the Closing Date
until thirty (30) days before the Termination Date;
provided that (a) at the time of, and after giving
effect to, any such requested Standby Letter of Credit,
all Revolving Conditions are satisfied; (b) the
requested amount of such Standby Letter of Credit after
taking into account, and aggregating therewith, the face
amount of all other Standby Letters of Credit
theretofore issued, does not
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exceed the Standby Letter of Credit Commitment; (c) the
term of such Standby Letter of Credit does not exceed
one year; and (d) the requested Standby Letter of Credit
satisfies the requirements of Section 2.11.2, below.
Each Lender's Revolving Commitment shall be deemed
utilized by an amount equal to such Lender's Ratable
Portion (based on such Lender's Revolving Commitment) of
the maximum amount available to be drawn under each
Standby Letter of Credit (assuming compliance with all
conditions to drawing the maximum amount available under
such Standby Letter of Credit). Immediately upon the
issuance of each Standby Letter of Credit, the Agent
shall be deemed to have sold and transferred to each
Lender, and each Lender shall be deemed to have
purchased and received from the Agent, in each case
irrevocably and without any further action by any party,
an undivided interest and participation in such Standby
Letter of Credit, each drawing thereunder and the
Obligations of the Company under this Credit Agreement
related to such Standby Letter of Credit in an amount
equal to the Ratable Portion of such Lender therein
(based on such Lender's Revolving Commitment), to the
end that all of the Lenders shall share the obligations
and risks as to Standby Letters of Credit in accordance
with their respective Ratable Portions (based on their
Revolving Commitments). Each Lender irrevocably agrees
to pay to the Agent upon demand at any time that Agent
is required to make a Standby Letter of Credit
Disbursement (prior to the making of a Revolving Loan in
refunding of any Letter of Credit Obligations) the
amount of such Lender's participation in such Standby
Letter of Credit Obligation.
2.11.2 TERMS OF STANDBY LETTERS OF CREDIT. All Standby Letters
of Credit shall be issued on the Agent's standard forms
therefor (or in such other form as the Agent and the
Authorized Employee may agree) for the account of the
Company and shall be, unless otherwise agreed by the
Agent in its discretion, denominated in Dollars. Unless
all the Lenders otherwise agree, no Standby Letter of
Credit shall be issued or renewed unless its expiration
date shall be no later than the earlier of (a) one year
after the date of issuance or renewal thereof or (b)
thirty (30) days prior to the Termination Date. The
Standby Letters of Credit shall be governed by the terms
of this Credit Agreement and of the Letter of Credit
Documents.
2.11.3 PROCEDURE FOR STANDBY LETTERS OF CREDIT. An Authorized
Employee shall give the Agent written notice (or
telephone advice thereof promptly confirmed in writing
but in no event later than 5:00 p.m. (Cincinnati time)
on the day on which such telephonic notice is given) at
least two (2) Business Days prior to the date on which a
Standby Letter of Credit is requested to be issued of
its
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request for a Standby Letter of Credit. Such notice
shall be accompanied by all Letter of Credit Documents
required by the Agent, duly executed, and shall specify:
(a) the name and address of the beneficiary of the
Standby Letter of Credit, (b) the amount of the Standby
Letter of Credit, such supporting information regarding
the related contract, payments and similar matters as
the Agent may require, (c) the Business Day on which the
Standby Letter of Credit is to be issued and the date on
which the Standby Letter of Credit is to expire, and (d)
any other terms or provisions the Company desires to be
contained in the Standby Letter of Credit. In the event
of any conflict between the provisions of this Credit
Agreement and the provisions of any applicable Letter of
Credit Documents, the provisions of this Credit
Agreement shall prevail and control unless otherwise
expressly provided in the Letter of Credit Documents. If
the requested form of such Standby Letter of Credit is
acceptable to the Agent in its sole discretion, the
Agent will, subject to the terms and conditions of this
Credit Agreement, make such Standby Letter of Credit
available to the Company.
2.11.4 DRAWING AND REIMBURSEMENT. The payment by the Agent of a
draft drawn under any Standby Letter of Credit shall
constitute for all purposes of this Agreement the making
by the Agent of a Revolving Credit Loan, which shall be
a Base Rate Advance, in the amount of such draft (but
without any requirement for compliance with the
provisions of Sections 2.1 or 7 hereof). On the first
Business Day following a drawing under a Standby Letter
of Credit, the Agent shall promptly notify each other
Lender. Upon receipt of such notice each such Lender
shall immediately (but in any event not later than the
first Business Day following such notification) make a
Revolving Loan, which shall be a Base Rate Advance, in
an amount equal to the amount of its participation in
such drawing for application to reimburse the Agent (but
without any requirement for compliance with the
provisions of Sections 2.1 or 7 hereof; provided that
the making of such Revolving Loan shall not constitute a
waiver of any such provision). Notwithstanding the
foregoing sentence, no Lender shall be required to make
such Revolving Loan if the Company is not obligated to
pay the applicable Standby Letter of Credit
Disbursements due to the Agent's gross negligence or
willful misconduct, and each Lender shall make available
for the account of its Applicable Lending Office to the
Agent for the account of the Agent, by deposit to the
Agent's Account, in same day funds, the amount of such
Revolving Loan. If and to the extent that any Lender
shall not have so made the amount of such Revolving Loan
available to the Agent, such Lender and the Company
severally agree to pay to the Agent forthwith on demand
such amount
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together with interest thereon, for each day from the
date of such notification by the Agent (in the case of
such Lender) or the dates such drawing was paid by the
Agent (in the case of the Company) until the date such
amount is paid to the Agent, at (i) in the case of the
Company, the Default Rate and (ii) in the case of such
Lender, two percent (2%) in excess of the Federal Funds
Rate. If such Lender shall pay to the Agent such amount,
such amount so paid shall constitute such Lender's
Advance for purposes of this Agreement.
2.11.5 REIMBURSEMENT OBLIGATION OF COMPANY FOR STANDBY LETTER
OF CREDIT DISBURSEMENTS. The Company hereby promises to
pay to the order of the Agent in Dollars the following
(each a "Standby Letter of Credit Disbursement and which
are herein called collectively the "Standby Letter of
Credit Disbursements") immediately upon or before
notification by the Agent to the Authorized Employee of
the amount of a Standby Letter of Credit Disbursement:
a. the amount which the Agent has paid or will be
required to pay in respect of any Standby Letter
of Credit;
b. any and all reasonable charges and expenses
(including, without limitation, reasonable
attorneys' fees and expenses) which the Agent may
pay or incur relative to any Standby Letter of
Credit and/or drafts related thereto, or the
prosecution or defense of any action growing out
of, or in connection with, any Standby Letter of
Credit, including, without limitation, any and all
costs and expenses in connection with the defense
of any and all actions to enjoin full or partial
payment of any draft drawn or purported to be
drawn under the Standby Letter of Credit; and
c. interest on the amounts described in (a) and (b),
above, not paid by the Company as and when due and
payable under the provisions of (a) and (b),
above, from the day paid or incurred by the Agent
until reimbursed in full at the Default Rate in
effect from time to time.
2.11.6 COMPANY'S OBLIGATIONS ABSOLUTE.
a. The Company's obligations to pay Standby Letter of
Credit Disbursements to the Agent shall be
absolute, unconditional and irrevocable under any
and all circumstances and irrespective of:
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(i) any lack of validity or enforceability of
any Standby Letter of Credit;
(ii) the existence of any claim, setoff,
defense or other right which the Company
or any other Person may at any time have
against the beneficiary of any Standby
Letter of Credit or the Agent (other than
the defense of payment in accordance with
the terms of this Credit Agreement or a
defense based on the gross negligence or
willful misconduct of the Agent), each
other, or any other Person in connection
with this Credit Agreement or any other
agreement or transaction;
(iii) any draft or other document presented
under a Standby Letter of Credit proving
to be forged, fraudulent, invalid or
insufficient in any respect or any
statement therein being untrue or
inaccurate in any respect; provided that
payment by the Agent under such Standby
Letter of Credit against presentation of
such draft or document shall not have
constituted gross negligence or willful
misconduct;
(iv) payment by the Agent under a Standby
Letter of Credit against presentation of a
draft or other document which does not
comply with the terms of such Standby
Letter of Credit; provided that such
payment shall not have constituted gross
negligence or willful misconduct; and
(v) any other circumstance or event
whatsoever, whether or not similar to any
of the foregoing; provided that such other
circumstance or event shall not have been
the result of gross negligence or willful
misconduct of the Agent.
b. It is understood that in making any payment under
a Standby Letter of Credit (x) the Agent's
exclusive reliance on the documents presented to
it under such Standby Letter of Credit as to any
and all matters set forth therein, including,
without limitation, reliance on the amount of any
draft presented under such Standby Letter of
Credit, whether or not the amount due to the
beneficiary equals the amount of such draft and
whether or not any document presented pursuant to
such Standby Letter of Credit proves to be
insufficient in any respect, if such document on
its
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face appears to be in order, and whether or not
any other statement or any other document
presented pursuant to such Standby Letter of
Credit proves to be forged or invalid or any
statement therein proves to be inaccurate or
untrue in any respect whatsoever and (y) any
noncompliance in any immaterial respect of the
documents presented under a Standby Letter of
Credit with the terms thereof shall, in each case,
not be deemed willful misconduct or gross
negligence of the Agent.
c. The Agent may accept or honor as complying with
any Standby Letter of Credit any draft or other
document otherwise in order which has been signed
or issued by or to the administrator, executor or
trustee in bankruptcy of or any receiver for any
of the property of any party designated in any of
the Standby Letters of Credit or in any of
Company's instructions, in the place of the name,
signature or act of such party.
2.11.7 COLLATERAL IN THE EVENT OF DEFAULT. If the Credit
Facilities terminate or expire for any reason or the
Agent accelerates the entire principal and interest and
all other amounts due from the Company pursuant to this
Credit Agreement as a result of any Event of Default,
then the Company shall, on demand of the Agent, deposit
with the Agent in cash, for deposit in the Cash
Collateral Account, an amount equal to the Standby
Letter of Credit Obligations as of such date. The Agent
shall have no obligation to make any of such funds
available to the Company pursuant to Section 3.2, below.
The Agent may also deposit to the Cash Collateral
Account any payments received by it from the collection
of the Obligations and the sale or other disposition of
the Collateral which the Agent, in its discretion,
designates as being held against Standby Letter of
Credit Obligations and other Obligations related
thereto.
2.11.8 LIABILITY AND INDEMNIFICATION OF THE AGENT.
a. Any action taken or omitted by the Agent, any
Affiliate of the Agent, or any branch or
correspondent bank or confirming bank, under or in
connection with the Standby Letters of Credit or
drafts or documents relating thereto, if taken or
omitted without gross negligence or willful
misconduct, will be binding upon the Company and
will not result in the Agent, any Affiliate, any
branch or any correspondent or confirming bank
being under any liability to the Company. The
Agent, any Affiliate, branch, correspondent bank
or confirming bank or any of their
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officers, directors or employees will not be
liable or responsible for: (a) the use which may
be made of the Standby Letters of Credit or for
any acts or omissions of any beneficiaries or any
transferees in connection therewith; (b) the
validity, sufficiency or genuineness of documents,
or of any endorsement(s) thereon, even if such
documents should in fact prove to be in any or all
respects invalid, insufficient, fraudulent or
forged; (c) if through the actions of shippers or
any other party, any documents fail to reach their
destination in due time; (d) the kind, quality,
quantity, delivery or existence of property
represented by any documents; (e) the sufficiency,
coverage or validity of any insurance, the
financial standing or responsibility of any
insurer, or any other risk associated with
insurance on any property; (f) delay in giving or
the failure to give notice of arrival or any other
notice; (g) failure of any draft to bear any
reference or adequate reference to any of the
Standby Letters of Credit; (h) any delay or
deviation from instructions in regard to shipment
or payment; (i) any variation between invoices and
insurance documents or between invoices and bills
of lading, warehouse receipts or other documents;
(j) any negligence or fraud of any shipper,
inspector, forwarding agent or other party; (k)
errors, omissions, interruptions or delays in
transmission or delivery of any messages or
documents by mail, telex or other means; or (l)
any other circumstances whatsoever in making or
failing to make payment under any of the Standby
Letters of Credit, except only damages which the
Company proves were caused by the Agent, any
Affiliate, branch, correspondent bank or
confirming bank or any of their officers,
directors or employees under either of the
following circumstances in those cases the Company
will have a claim only against the entity or its
officers, directors or employees that actually
committed the acts giving rise to such claim: (i)
gross negligence or willful misconduct in
determining whether a draft or other documents
presented under any Standby Letter of Credit
complies with the terms of the Standby Letter of
Credit or (ii) the willful or grossly negligent
failure to pay under a Standby Letter of Credit
after the presentation to it by any beneficiary or
transferee of a draft and documents strictly
complying with the terms and conditions of the
Standby Letter of Credit. In furtherance of and
not in limitation of the foregoing, (a) the Agent,
its Affiliates, branches, correspondent banks and
confirming banks may accept documents that appear
on their face to be in order, without
responsibility for further
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investigation, regardless of any notice or
information to the contrary and any action taken
or omitted in good faith in connection with any of
the Standby Letters of Credit or any documents or
property related to any of the Standby Letters of
Credit will be binding on the Company and will not
result in any liability of the Agent, its
Affiliates, branches, correspondent banks and
confirming banks, and (b) the Agent and its
Affiliates, branches, correspondent banks and
confirming banks will not be liable for any
failure or inability to perform in accordance with
the terms of any of the Standby Letters of Credit
by reason of any censorship, law, control or
restriction rightfully or wrongfully exercised by
any de facto or de jure government or group
exercising or exerting governmental powers, or for
any other act or omission for which banks are
relieved of responsibility under applicable law
and/or the Uniform Customs, as that term is
defined below.
b. The Company hereby agrees at all times to
indemnify, defend and hold harmless the Agent and
its Affiliates, branches, correspondent banks and
confirming banks, all directors, officers,
employees, agents and attorneys thereof, from and
against any and all claims, suits and other legal
proceedings, and from and against any and all
demands, liabilities, judgments, losses, claims,
liabilities, damages, reasonable attorney fees and
expenses, court costs, interest and penalties,
costs and other expenses which the Agent or any
such indemnified party jointly or severally may,
at any time, sustain or incur by reason of or in
consequence of or arising out of this Credit
Agreement or any of the Standby Letters of Credit
or the use (or the proposed or potential use) of
the proceeds of any drawing under any of the
Standby Letters of Credit, or any act hereunder or
thereunder, including but not limited to any of
the foregoing arising out of any legal proceeding
seeking to enjoin or require any payment under any
of the Standby Letters of Credit; provided that
the Company is not required to indemnify the
Agent, Affiliates, branches, correspondent banks
or confirming banks for any claims, damages,
losses, liabilities, costs or expenses to the
extent, but only to the extent, caused by (a) the
willful misconduct or gross negligence of such
entity in determining whether a draft or other
documents presented under any of the Standby
Letters of Credit complied with the terms of the
Standby Letter of Credit or (b) the willful or
grossly negligent failure of such entity to pay
under any of the Standby Letters of Credit after
the presentation to it by the
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beneficiary or any transferee of a draft and
documents strictly complying with the terms and
conditions of any of the Standby Letters of
Credit.
2.11.9 GENERAL PROVISIONS.
a. Any Standby Letter of Credit may be amended,
modified or revoked only upon the receipt by the
Agent from the Company and the beneficiary
(including any transferee(s) and/or assignee(s) of
the original beneficiary), of a written consent
and request therefor, and then only such terms and
conditions as the Agent may prescribe.
b. If any law, order of Court and/or ruling or
regulation of any agency of government of the
United States (or any state thereof) and/or any
country other than the United States, requires or
permits a beneficiary under a Standby Letter of
Credit to require the Agent and/or its branches,
affiliates and/or correspondents to pay drafts
under or purporting to be under a Standby Letter
of Credit after the expiration date of the Standby
Letter of Credit, the Company immediately shall
reimburse the Agent for any such payment (and such
obligation will be deemed to be included within
the meaning of the term "Standby Letter of Credit
Disbursement(s)").
c. Except as may otherwise be specifically provided
in a Standby Letter of Credit or Standby Letter of
Credit Document, the Standby Letters of Credit are
issued and subject to the Uniform Customs and
Practices for Documentary Credits published by the
International Chamber of Commerce (the "Uniform
Customs") or the International Standby Practices
published by the International Chamber of
Commerce, and the version of the Uniform Customs
or International Standby Practices applicable to
any particular Standby Letter of Credit shall be
the most current revision in effect on the date of
issuance of such Standby Letter of Credit. In the
event of a conflict between the Uniform Customs or
the International Standby Practices, as
applicable, and the laws of the State of Ohio, the
laws of the State of Ohio shall prevail.
d. The Company hereby irrevocably consents and agrees
to, at its expense, being joined, impleaded or
otherwise brought in as third-party defendants in
any action or proceeding brought by any Person
against the Agent or any of the Lenders or
otherwise naming the Agent or any of the
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Lenders as a party as a result of, arising out of
or in connection with, any Standby Letter of
Credit and/or any of the provisions of any Standby
Letter of Credit Document, including, but not
limited to, any action brought by a beneficiary,
their successors, assigns or transferees against
the Agent or any of the Lenders as a result of any
dishonor by the Agent or any of the Lenders of
drafts under or purporting to be under a Standby
Letter of Credit.
e. Equivalent Dollar amounts, to the extent
applicable, will be determined at the selling rate
of exchange then offered by the Agent at the time
of payment for cable transfers to the place of
payment, plus any payments made by the Agent to
comply with any applicable governmental exchange
regulations.
f. The Company will insure against the usual risks,
as the Agent may reasonably require, all goods
shipped under any of the Standby Letters of
Credit, which insurance will be with companies and
under policies meeting the requirements of Section
9.12 hereof and in all respects satisfactory to
the Agent. On the demand of the Agent, the Company
will deposit with the Agent policies or
certificates of such insurance. The Company will
sign and deliver to the Agent upon the request of
the Agent trust receipts or similar instruments,
financing statements or other documents reasonably
requested by the Agent to perfect any liens or
security interests granted by the Company to the
Agent in connection with Standby Letters of
Credit. The Company will promptly procure any
necessary licenses for the importing, exporting or
shipping of all property in connection with the
Standby Letters of Credit, comply will all
governmental laws and regulations affecting the
shipment or financing of such property and furnish
to the Agent such documents as the Agent may
reasonably require.
2.12 ASSUMPTIONS REGARDING NOTICES.
2.12.1 AUTHORIZED EMPLOYEES. Any Authorized Employee of the
Company may submit a Notice on behalf of the Company as
to any of the Credit Facilities. The Agent and each
Lender shall be entitled to rely conclusively on each
Authorized Employee's authority to submit a Notice on
behalf of the Company until the Agent receives written
notice from the Company to the contrary. The Agent shall
have no duty to verify the authenticity of the signature
appearing on any written Notice and, with respect to an
-51-
oral Notice, the Agent shall have no duty to verify the
identity of any Person representing himself as one of
the Authorized Employees entitled to make such a request
on behalf of the Company.
2.12.2 NO LIABILITY. Neither the Agent nor any Lender shall
incur any liability to the Company in acting upon any
Notice which the Agent or such Lender believes in good
faith to have been given by an Authorized Employee or
for otherwise acting in good faith in accordance with
this Section 2 and, upon the Agent's accepting any
Notice in accordance with this Section 2 pursuant to any
such Notice, the Company shall have effectively elected
the Borrowing, conversion, continuation, prepayment,
reduction or termination thereunder.
2.12.3 NOTICE IRREVOCABLE. Any Notice (whether telephonic,
telecopy, or facsimile or otherwise) given or deemed to
have been given pursuant to this Section 2 shall be
irrevocable.
2.13 COMPUTATIONS, FEES, PAYMENTS, ETC.
2.13.1 COMPUTATIONS. Except as otherwise set forth herein, all
computations of interest and of fees hereunder will be
made by the Agent on the basis of a year of three
hundred sixty (360) days, in each case for the actual
number of days (including the first day but excluding
the last day) occurring in the period for which such
interest or fees are payable; provided, however, that
computations of interest based on the Base Rate will be
made on the basis of a year of 365 or 366 days, as
applicable, for the actual number of days (including the
first day but excluding the last day) occurring in the
applicable interest period. Each determination by the
Agent of an Interest Rate or fee hereunder will be
conclusive and binding for all purposes, absent manifest
error. Whenever any payment to be made by the Company
hereunder or under any of the other Loan Documents is
stated to be due on a day other than a Business Day,
such payment will be made on the next succeeding
Business Day, and such extension of time will in such
case be included in the computation of payment of
interest or fees, as the case may be; provided, however,
that if such extension would cause payment of principal
or interest on Eurodollar Rate Advances to be made in
the next following calendar month, such payment shall be
made on the next preceding Business Day.
2.13.2 FEES. The fees described in this Section 2.13.2
represent compensation for services rendered and to be
rendered separate and apart from the lending of money or
the provision of credit and do not constitute
compensation for the use, detention or
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forbearance of money, and the obligation of the Company
to pay such fees will be in addition to and not in lieu
of the obligation of the Company to pay interest, other
fees and expenses otherwise described herein or in the
other Loan Documents. The following fees shall be paid
by the Company:
a. CLOSING FEE. The Company shall pay to the Agent,
for the account of the Lenders, on the Closing
Date a non-refundable closing fee of $36,747 to be
shared pro rata by the Lenders based on their
Ratable Portion.
b. COMMITMENT FEE. The Company shall pay to the
Agent, for the account of the Lenders, a
commitment fee (the "Commitment Fee") from and
including the Closing Date to the Termination
Date, computed at the rate per annum set forth
below, on the average daily unused portion of the
Revolving Commitment and the Non-Revolving
Commitment, such Commitment Fee to be payable
quarterly in arrears on the last Business Day of
each June, September, December and March and upon
the Termination Date and to be shared pro rata by
the Lenders based on their Ratable Portion.
LEVERAGE RATIO COMMITMENT FEE
-------------- --------------
Less than or equal to 2.0x 0.125%
Greater than 2.0x but less than
or equal to 2.5x 0.150%
Greater than 2.5x but less than
or equal to 3.0x 0.175%
Greater than 3.0x 0.200%
The Commitment Fee will be adjusted as of the
first day of the month following delivery of the
quarterly financial statements required hereunder
based upon the Leverage Ratio determined by the
Agent pursuant to those financial statements;
provided that if the Company fails to deliver such
financial statements as and when required by this
Credit Agreement the Commitment Fee will
automatically be increased to the highest rate
permitted hereunder.
c. AGENT CLOSING EXPENSES. All reasonable
out-of-pocket expenses and reasonable legal
expenses incurred by the Agent in connection with
the preparation, negotiation, execution and
delivery of this Credit Agreement and the other
Loan Documents and attendant documents and the
closing of the Credit Facilities shall be paid by
the
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Company to the Agent for the account of the Agent
on the Closing Date.
d. LETTER OF CREDIT AND STANDBY LETTER OF CREDIT
FEES. The Company will pay to the Agent a fee
computed at a rate per annum equal to the
following percentages of the aggregate Letter of
Credit Amounts and, in the case of Standby Letters
of Credit, the aggregate Standby Letter of Credit
stated amounts (the "Letter of Credit Fees"),
which fees will be deemed non-refundable on the
first day of such quarter and will be computed and
payable in arrears beginning on the date of
issuance and on the last Business Day of each
June, September, December and March thereafter:
LEVERAGE RATIO LETTER OF CREDIT FEES
-------------- ---------------------
Less than or equal to 2.0x 1.00%
Greater than 2.0x but less
than or equal to 2.5x 1.00%
Greater than 2.5x but less
than or equal to 3.0x 1.25%
Greater than 3.0x 1.50%
The Agent will pay to each Lender, promptly and
upon receipt from the Company, an amount equal to
such Lender's Ratable Portion of the Letter of
Credit Fees. The applicable Letter of Credit Fee
will be adjusted as of the first day of the
quarter following delivery of the quarterly
financial statements required hereunder based upon
the Leverage Ratio determined by the Agent
pursuant to those financial statements; provided
that if the Company fails to deliver such
financial statements as and when required by this
Credit Agreement the applicable Letter of Credit
Fee will automatically be increased to the highest
rate permitted hereunder.
2.13.3 PAYMENTS. The Company will make each payment hereunder
and under the Notes, as the case may be, not later than
3:00 p.m. (Cincinnati time) on the day when due by
deposit to the Agent's Account in same day funds.
Amounts received by the Agent after 3:00 p.m.
(Cincinnati time) on any Business Day will be deemed to
have been received on the next Business Day. Subject to
the foregoing, the Agent will cause to be distributed to
each Lender on the Business Day of receipt by the Agent
an amount equal to the amount of such payment then due
such Lender.
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2.13.4 CHARGE TO ACCOUNTS. If the Company fails to make any
payment of principal, interest, fees, expenses or other
Obligations specified or referred to in this Credit
Agreement or the Loan Documents to the Agent or any
Lender when due, the Agent is hereby authorized to make
such payments on the Company's behalf by charging the
Cash Collateral Account and/or drawing a Revolving Loan
(which shall be a Base Rate Advance, subject to
application of the Default Rate), in the appropriate
amount and each such draw shall constitute a Revolving
Loan and a Borrowing hereunder and part of the
Obligations, secured by all of the Collateral; provided,
however, that the Agent will not be obligated to make
any such charge or draw. The Agent may, in the Agent's
discretion, either (a) so charge the Cash Collateral
Account for such amount and/or draw an Advance or (b)
require the Company to pay such amount; provided that if
the Company does not pay such amount upon demand
therefor by the Agent, such amount shall bear interest
at the Default Rate. The Company also does hereby
authorize each Lender, if and to the extent payment of
any of the Obligations owed to such Lender by the
Company is not made when due hereunder, to charge any
amount so due from time to time against any or all
accounts of any or all of the Company with such Lender.
2.13.5 FAILURE TO MAKE PAYMENTS BY COMPANY. Unless the Agent
will have received notice from the Company prior to the
date on which any payment is due to the Agent hereunder
that the Company will not make such payment in full, the
Agent may assume that the Company has made such payment
in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed
to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the
Company will not have so made such payment in full to
the Agent, each Lender will repay to the Agent forthwith
on demand such amount distributed to such Lender
together with interest thereon, for each day from the
date such amount is distributed to such Lender until the
date such Lender repays such amount to the Agent, at the
Federal Funds Rate. If and to the extent the Company
makes only partial payment to the Agent, each Lender
will repay to the Agent, in accordance with this
Section, only the amount distributed to such Lender by
the Agent, with interest thereon, that exceeds the
Lender's Ratable Portion of the partial payment received
by the Agent from the Company.
2.14 TAXES. Any and all payments by the Company hereunder or under the
Security Documents will be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with
respect thereto, other than any tax on or measured by the net income
of a Lender pursuant to the income tax laws of the United States or
any
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state or political subdivisions thereof (all such non-excluded items
being hereinafter referred to as the "Taxes"). The Company agrees to
pay any present or future stamp, recording or documentary taxes or
similar levies which arise from any payment made hereunder or under
the Security Documents or from the execution, delivery or
registration of, or otherwise with respect to, this Credit Agreement
or the Security Documents (hereinafter referred to as the "Levies").
The Company will indemnify each Lender and the Agent for the full
amount of Taxes or Levies paid by such Lender or the Agent (as the
case may be) and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Levies were correctly or
legally asserted. A certificate of a Lender as to any additional
amounts payable to any Lender under this Section 2.14 submitted to
the Company shall be conclusive absent manifest error. The Company
will pay to the Agent for the account of such Lender the amount
shown as due on any such certificate within thirty (30) days after
receipt of the same. The agreements and obligations contained in
this Section 2.14 will survive the payment in full of the
Obligations and any termination of this Credit Agreement.
2.15 ADDITIONAL COSTS.
2.15.1 TAXES, RESERVE REQUIREMENTS, ETC. In the event that any
applicable law, rule or regulation now or hereafter in
effect and whether or not presently applicable to any of
the Lenders, or any interpretation or administration
thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance
by the Lenders with any guideline, request or directive
of any such authority (whether or not having the force
of law), will (i) subject any Lender to any tax or
affect the basis of taxation of payments to any of the
Lenders of any amounts payable by the Company under this
Credit Agreement (other than taxes imposed on the
overall net income of any of the Lenders, by the
jurisdiction, or by any political subdivision or taxing
authority of any such jurisdiction, in which any Lender
has its principal office), or (ii) will impose, modify
or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or
for the account of, or credit extended by any of the
Lenders (including but not limited to a request or
requirement which affects the manner in which any of the
Lenders allocates capital resources to its commitments
or obligations, including without limitation its
obligations under this Credit Agreement, the Loans,
Letters of Credit and other obligations) or (iii) will
impose any other condition affecting this Credit
Agreement, any of the Obligations or any of the Loan
Documents, and the result of any of the foregoing is to
increase the direct or indirect cost of making, funding
or maintaining the Loans, Letters of Credit or other
Obligations or to reduce the amount of any sum received
or receivable by any of the Lenders thereon, then the
Company will
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pay to such Lenders from time to time, upon request by
any of such Lenders, with a copy of such request to be
provided to the Agent, additional amounts sufficient to
compensate such Lenders for such increased cost or
reduced sum receivable.
2.15.2 CAPITAL ADEQUACY. If either (i) the introduction of, or
any change in, or in the interpretation or
administration of, any United States or foreign law,
rule or regulation, or (ii) compliance with any
directive, guidelines or request from any central bank
or other governmental authority (whether or not having
the force of law) promulgated, made, or that becomes
effective (in whole or in part) after the date hereof
affects or would affect the amount of capital required
or expected to be maintained by any of the Lenders or
any corporation directly or indirectly owning or
controlling any of the Lenders and any Lender will have
determined that such introduction, change or compliance
has or would have the effect of reducing the rate of
return on such Lender's capital or on the capital of
such owning or controlling corporation as a consequence
of its obligations hereunder or under any of the Loans,
Letters of Credit or other Obligations or any commitment
to lend thereunder or relating thereto to a level below
that which any Lender or such owning or controlling
corporation could have achieved but for such
introduction, change or compliance (after taking into
account such Lender's policies or the policies of such
owning or controlling corporation, as the case may be,
regarding capital adequacy) by an amount deemed by such
Lender (in its sole discretion) to be material, then,
from time to time, the Company will pay to such Lender
such additional amount or amounts as will compensate
such Lender for such reduction.
2.15.3 CERTIFICATE OF LENDER. A certificate of a Lender setting
forth such amount or amounts as will be necessary to
compensate the Lender as specified in Sections 2.15.1
and/or 2.15.2, above, will be delivered to the Company
and will be conclusive absent manifest error. The
Company will pay the Agent for the account of the
Lenders the amount shown as due on any such certificate
within thirty (30) days after its receipt of the same.
Failure on the part of any Lender to deliver any such
certificate will not constitute a waiver of such
Lender's rights to demand compensation for any
particular period or any future period. The protection
of this Section will be available to any Lender
regardless of any possible contention of invalidity or
inapplicability of the law, regulation, etc. that
results in the claim for compensation under this
Section. The agreements and obligations contained in
Section 2.15 will survive the payment in full of the
Obligations and any termination of this Credit
Agreement.
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2.16 INABILITY TO DETERMINE RATE; INADEQUACY OF PRICING; ILLEGALITY.
2.16.1 RATE INABILITY; PRICING INADEQUACY. In the event that
(a) the Agent or any Lender shall have determined (which
determination shall be conclusive and binding) that by
reason of circumstances affecting the interbank
eurodollar market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate, or (b) the
Agent or any Lender shall have determined that the
Eurodollar Rate will not adequately and fairly reflect
the cost to the Agent of maintaining or funding
Eurodollar Rate Advances, the Agent promptly shall give
notice of such determination and the basis therefor to
the Company. If such notice is given, and until such
notice has been withdrawn by the Agent, no additional
Advances which are Eurodollar Rate Advances shall be
made and no additional conversions to or continuations
of Eurodollar Rate Advances shall be permitted.
2.16.2 ILLEGALITY; TERMINATION OF COMMITMENTS. Notwithstanding
any other provisions herein, if any law, treaty, rule or
regulation, or determination of a court, governmental
authority, central bank or comparable agency charged
with the interpretation or administration thereof
(whether or not having the force of law), or any change
therein or in the interpretation or application thereof,
shall make it unlawful or impossible for any Lender to
make or maintain Eurodollar Rate Advances, the
obligation of the Lenders hereunder to make or maintain
Eurodollar Rate Advances shall forthwith be canceled,
and outstanding Eurodollar Rate Advances shall be
converted to Base Rate Advances on either (a) the last
day of the applicable Interest Period for such Advance
if the Lenders may continue to maintain such Advances
until such day or (b) immediately if any Lender may not
continue to maintain such Advances. Each Lender which
becomes aware of any such event which makes it unlawful
or impossible for such Lender to make or maintain
Eurodollar Rate Advances promptly shall notify the
Company and the Agent of such event; provided, however,
that the failure to provide any such notice shall not
affect the applicability of the preceding sentence or
the obligations of the Company hereunder or under any of
the other Loan Documents.
2.17 OBLIGATION TO INDEMNIFY.
2.17.1 EVENTS. In the event of (a) the Company's failure to
accept the proceeds from (or to convert to or continue)
an Advance after making a request therefor, or (b) any
payment, prepayment or conversion (whether mandatory, by
acceleration, voluntary or otherwise) of any Eurodollar
Rate Advance prior to the expiration of the applicable
Interest Period, as a result of which any Lender
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shall incur any loss, liability, claim or expense (other
than a loss, liability, claim or expense which directly
resulted from such Lender's breach of its obligation to
make funds available), the Company shall pay to such
Lender, within five (5) Business Days following delivery
of the statement referred to below, and indemnify and
hold harmless such Lenders from and against any such
loss, liability, claim or expense (including, without
limitation, any loss or expense incurred by reason of
the liquidation or redeployment of deposits or other
funds required for the account of any such Lender to
fund or maintain any such Advances). The losses of any
Lender (as differentiated from any other liabilities,
claims or expenses) shall be conclusively deemed to
consist of any amount equal to:
a. the interest that would have been received (at the
Interest Rate that was applicable to such Advance)
on the funds to be redeployed during the
applicable Interest Period (or remaining portion
thereof), less
b. the return which the Lenders could have obtained
had such funds been reinvested at the Federal
Funds Rate on the date of such prepayment,
repayment, failure to borrow or continue or
convert, as the case may be, and such funds had
remained so invested until the end of the relevant
Interest Period in Dollar denominated deposits
with prime banks on the Agent's interbank Dollar
market.
2.17.2 STATEMENT. Each Lender which has incurred any loss,
liability, claim or expense compensable pursuant to this
Section 2.17 promptly shall deliver to the Company a
written statement of the nature and amount thereof and
the basis of calculation thereof, which statement shall
be conclusive absent manifest error.
2.17.3 SURVIVAL. The obligations of the Company under this
Section 2.17 will survive the payment in full of the
Obligations and any termination of this Credit
Agreement.
2.18 USE OF PROCEEDS.
2.18.1 The proceeds of the Revolving Credit Loans and the
Swingline Loans will be used exclusively for working
capital purposes, permitted capital expenditures, and
other general corporate purposes.
2.18.2 Draws on the Letters of Credit will be used to pay
principal, interest and any premiums when due on the
Bonds.
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2.18.3 Draws on the Standby Letters of Credit will be used
exclusively to pay the obligations of the Company to pay
suppliers amounts due under purchase contracts or other
corporate purposes.
2.18.4 The proceeds of the Non-Revolving Credit Loans will be
used exclusively to fund acquisitions as permitted under
Section 10.13.
3. [RESERVED].
4. BOND REDEMPTION.
4.1 COMPANY BOND REDEMPTION. The Company will redeem outstanding 1997
Scottsburg Bonds and Scottsburg Bonds (in such order as the Company
and the Agent may agree) in the aggregate principal amount of
$200,000 on each January 1, April 1, July 1 and October 1 during the
term of this Credit Agreement, or in such other amounts or at such
other times as the Agent and the Company may agree from time to
time. Such redemptions will be accomplished pursuant to the optional
redemption provisions contained in the Indenture. The Company hereby
authorizes any Lender to charge the Cash Collateral Account (or any
other account of the Company at any Lender) to reimburse the Agent
or any Lender for any draws under any Letter of Credit in connection
with such redemptions.
4.2 MCC-BATAVIA BOND REDEMPTION. MCC-Batavia will continue to redeem
outstanding MCC-Batavia Bonds in a principal amount of at least
$175,000 during each calendar quarter on each March 1st, June 1st,
September 1st and December 1st. Such redemptions will be
accomplished by MCC-Batavia pursuant to the optional redemption
provisions contained in the MCC-Batavia Indenture. MCC-Batavia and
the Company each hereby authorizes each Lender to charge the Cash
Collateral Account (or any other account of MCC-Batavia or the
Company at any Lender) to reimburse the Agent or any Lender for any
draws under the MCC-Batavia Alternate Letter of Credit in connection
with such redemptions.
5. COLLATERAL. The Collateral for the repayment of the Obligations will be
that granted pursuant to the Security Documents. The Company and the
Subsidiaries of the Company each acknowledges and agrees that any and all
property, real or person, tangible or intangible, heretofore granted by the
Company or any of its Subsidiaries in favor of the Agent, for the benefit
of the Lenders, whether pursuant to any prior amendment or restatement of
this Credit Agreement or otherwise, is and shall be Collateral for the
Obligations (as defined in this Credit Agreement), and any and all
guaranties heretofore made by any of such Subsidiaries in favor of the
Agent, for the benefit of the Lenders, shall apply to the Obligations (as
defined in this Credit Agreement). Each Subsidiary of the Company reaffirms
its liabilities and obligations under its respective guarantee of the
Obligations and further represents and warrants that such guarantee
constitutes the legal, valid and binding obligation of such Subsidiary and
is enforceable against such Subsidiary in accordance with its terms. Each
such Subsidiary further represents and warrants that it has no defenses,
setoffs, claims, counterclaims, or causes of action of any kind or nature
whatsoever with respect to its guarantee of the Obligations.
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6. SECURITY AND SUBROGATION UNDER INDENTURE.
6.1 SECURITY. To further secure the Company's Letter of Credit
Obligations under this Credit Agreement, the Company and the Agent
intend that (i) the Agent will have the security and benefit of the
Bond Documents as provided in the Indenture and (ii) in the event of
one or more draws under the Letters of Credit and the application
thereof to the payment of Bonds, the Agent will be subrogated pro
tanto to the rights of the Trustee and the holders of such Bonds in
and to all funds and security held by the Trustee under the
Indenture for the payment of the principal of and interest on such
Bonds, including without limitation all loan funds, construction
funds, escrow funds, revenue funds, operation funds, debt service
funds, reserve funds, redemption funds and other funds and
securities and other instruments comprising investments thereof. In
addition, the Agent shall have any and all other subrogation rights
available to the Agent at law or in equity.
6.2 PLEDGE OF RIGHTS TO CERTAIN FUNDS AND INVESTMENTS. To secure the
Company's Letter of Credit Obligations to the Agent under this
Agreement, the Company hereby pledges to the Agent, and grants to
the Agent a security interest in, all of the Company's right, title
and interest in and to all funds and investments thereof now or
hereafter held by the Trustee under the Indenture as security for
the payment of the Bonds, including without limitation any and all
loan funds, construction funds, escrow funds, revenue funds,
operations funds, debt service funds, reserve funds, redemption
funds and other funds and securities and other instruments
comprising investments thereof and interest and other income derived
therefor as held as security for the payment of the Bonds, such
pledge, assignment and grant being under and subject only to the
rights of the Trustee under the Indenture. The Company covenants and
agrees that it will defend the Agent's rights and security interests
created by this Section against the claims and demands of all
persons except the Trustee. In addition to its other rights and
remedies under this Credit Agreement and the Bond Documents, the
Agent shall have all the rights and remedies of a secured party
under the Uniform Commercial Code of the State or other applicable
law with respect to the security interests created by this Section.
The Agent's rights under this Section are in addition to, and not in
lieu of, its rights described in Section 6.1.
6.3 PLEDGED BONDS.
6.3.1 PLEDGE. To secure the Company's obligations to the Agent
under this Agreement, the Company hereby pledges and
assigns to the Agent, and grants to the Agent a security
interest in, all of the Company's right, title and
interest, now owned or hereafter acquired, in and to any
and all Unremarketed Tendered Bonds (together with all
income therefrom and proceeds thereof) purchased
pursuant to the Indenture with the proceeds of a Tender
Draft presented under the Letters of Credit for which
neither (i) full reimbursement has been made to the
Agent nor (ii) the Trustee
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holds sufficient funds which, pursuant to the Indenture,
the Trustee is required to apply on behalf of the
Company to reimburse the Agent in full for such Tender
Draft on the date such Tender Draft is paid by the
Agent. Such Unremarketed Tendered Bonds shall be pledged
to the Agent, registered in its name as pledgee of the
Company and delivered to and held by the Trustee as
agent for the Agent under this Section 6.3 or, at the
option of the Agent by written notice to the Company and
the Trustee, the Unremarketed Tendered Bonds specified
in such notice shall be delivered to and pledged and
held by the Agent. Unremarketed Tendered Bonds which are
so held by the Trustee as agent for the Agent or by the
Agent are herein referred to as "Pledged Bonds."
6.3.2 PLEDGED BOND PAYMENTS. Any principal of, premium on and
interest on Pledged Bonds which becomes due and payable
(including any due-bills received upon purchases thereof
pursuant to the record date provisions of the Indenture
or the Bonds) shall be paid to the Agent. All sums of
money so paid to the Agent in respect of Pledged Bonds
shall be credited against the obligation of the Company
to reimburse the Agent, with interest under Section
2.10.5 for the amount drawn with a Tender Draft to fund
the purchase of such Pledged Bonds pursuant to the
Indenture.
6.3.3 RELEASE OF PLEDGED BONDS. If the Company pays or causes
to be paid in full its obligation under Section 2.10.5
for the reimbursement of the amount (or allocable
portion thereof) drawn with a Tender Draft to fund the
purchase of Pledged Bonds pursuant to the terms of the
Indenture (or if the Trustee has received immediately
available funds which, pursuant to the terms of the
Indenture, the Trustee is required to pay over promptly
to the Agent in an amount sufficient to pay the
Company's reimbursement obligation under Section 2.10.5
hereof with respect to the amount drawn with such Tender
Draft to fund the purchase of such Pledged Bonds), and
provided no Event of Default has occurred and is
continuing, the Agent will release from the pledge of
this Credit Agreement and will deliver, or cause its
agent to deliver, such Pledged Bonds to such person or
persons as the Company may direct. An amount equal to
the principal of, plus accrued interest on, such Pledged
Bonds shall be presumed (absent notice to the contrary)
to be an "amount sufficient" for the purposes of this
Section 6.3.3 and, upon receipt of such amount by the
Trustee for payment to the Agent as aforesaid, the
Trustee shall be automatically authorized to deliver
such Pledged Bonds as aforesaid free from the pledge of
this Agreement, unless the Trustee has received from the
Agent written notice or telephonic notice (which shall
thereafter be confirmed in writing) that such release
shall not occur.
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6.3.4 LIABILITY OF AGENT. The Agent shall not be liable for
failure to collect or realize upon the obligations
secured by the Pledged Bonds or any collateral security
guarantee therefor, or any part thereof, or for any
delay in so doing, and the Agent shall not be under any
obligation to take any action whatsoever with regard
thereto.
6.3.5 REPRESENTATIONS; RIGHTS AND REMEDIES. The Company
represents and warrants to the Agent that the pledge,
assignment and delivery of Pledged Bonds pursuant to
this Section 6.3 will create a valid first lien on and a
first perfected security interest in, all right, title
and interest of the Company in and to the Pledged Bonds,
and the proceeds thereof. The Company covenants and
agrees that it will defend the Agent's right, title and
security interest in and to the Pledged Bonds and the
proceeds thereof against the claims and demands of all
persons. In addition to its other rights and remedies
under this Credit Agreement and the Bond Documents, the
Agent shall have all the rights and remedies of a
secured party under the Uniform Commercial Code of the
State or other applicable law with respect to the
security interests created by this Section.
7. CONDITIONS PRECEDENT. Notwithstanding anything to the contrary contained
herein, the Agent's and Lenders' obligation and commitment to continue to
make the Credit Facilities available to the Company pursuant to this Credit
Agreement will terminate in the event that all of the conditions set forth
in Sections 7.1 and 7.2 are not satisfied by the Company on or before the
Closing Date.
7.1 INITIAL ADVANCES. The Lenders' obligations to make the initial
Advances and to issue Standby Letters of Credit pursuant to Section
2 of this Credit Agreement are subject to the fulfillment of each of
the following conditions:
7.1.1 LOAN DOCUMENTS. The Agent has received, on behalf of the
Lenders, all Loan Documents duly executed by the Company
and its Subsidiaries, as applicable, together with all
instruments and other documents as are necessary to
continue in the Agent a perfected first priority
security interest in the Collateral.
7.1.2 OPINION LETTERS. The Agent and each Lender has received
an opinion of counsel for the Company and its
Subsidiaries directed to the Agent and the Lenders in
form and substance and from counsel acceptable to the
Agent.
7.1.3 RESOLUTIONS. The Agent has been furnished copies,
certified by the secretary or assistant secretary of the
Company and its Subsidiaries, of the resolutions of the
Board of Directors or the Members, as applicable, of the
Company and its Subsidiaries,
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authorizing the execution, delivery and performance of
this Credit Agreement and the Loan Documents, together
with a certificate of such secretary or assistant
secretary certifying the names, titles, incumbency and
signatures of the Persons authorized to execute such
documents.
7.1.4 GOOD STANDING. The Agent has received, as to the Company
and its Subsidiaries, long-form certificates of good
standing of the Secretary of State of the jurisdiction
in which it is formed and each jurisdiction in which it
is qualified to do business.
7.1.5 DESIGNATION OF AUTHORIZED EMPLOYEES OF COMPANY. The
Company shall have delivered to the Agent a written
designation of Authorized Employees.
7.1.6 INSURANCE. The Company shall provide to the Agent
evidence of all required insurance coverage under
Section 9.12 hereof.
7.1.7 FULL SYNDICATION. The Agent shall have received written
commitments from the Lenders to assume the lending
responsibility for the Commitments.
7.1.8 UCC SEARCHES. The Agent shall be provided with current
UCC searches with respect to the Company, its
Subsidiaries and such other parties and in such
locations as the Agent may require showing that all
personal property which is required to be Collateral for
the Credit Facilities is free from all liens and
security interests except for Permitted Liens.
7.1.9 CONSENTS. The Agent has received copies of all consents
which the Company must obtain in connection with the
transactions contemplated hereby.
7.1.10 FEES. The Agent and the Lenders have received full
payment of all fees, expenses and other amounts then due
under this Credit Agreement.
7.1.11 NO DEFAULT. No Default or Event of Default exists.
7.1.12 REPRESENTATIONS AND WARRANTIES. All representations and
warranties of the Company and its Subsidiaries contained
in this Credit Agreement or in the Bond Documents are
true and correct with the same force and effect as
though such representations and warranties had been made
on and as of such time.
7.1.13 DOCUMENTATION AND PROCEEDINGS. All instruments in
connection with the transactions contemplated by this
Credit Agreement are satisfactory in form and substance
to the Agent and its counsel and
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the Agent has received all information and copies of all
documents, including governmental approvals, which it
may have reasonably requested in connection with the
transactions contemplated by this Credit Agreement, such
documents where appropriate to be certified by
authorized officers of the Company or proper
governmental authorities.
7.1.14 OTHER DOCUMENTS. The Lenders have received such other
documents as they may have reasonably required in
connection with the transactions provided for in this
Credit Agreement, all in form and substance satisfactory
to the Agent.
7.1.15 OTHER CONDITIONS. The conditions set forth in Section
7.2, below, shall have been fully satisfied.
7.2 EACH ADVANCE. The obligation of each Lender to make any Advance is
subject to the fulfillment of each of the following conditions to
the satisfaction of the Agent:
7.2.1 NO DEFAULTS. There does not exist any Potential Default,
Default or Event of Default either before or after
giving effect thereto.
7.2.2 ACCURACY. The representations and warranties contained
in this Credit Agreement and in the other Loan Documents
as amended are true, correct and complete in all
respects on and as of the day of any Request for Advance
or making of any Borrowing.
7.2.3 NOTICES. The Agent shall have received all required
Notices.
7.2.4 OTHER DOCUMENTS. The Agent shall have received such
other documents or items of information as it may
reasonably require, in form and substance satisfactory
to it.
7.3 REPRESENTATION. Each Borrowing and each conversion or continuation
of an Advance shall constitute a representation and warranty by the
Company as of such Borrowing Date, Conversion Date, Continuance Date
or issuance or renewal date, as applicable, that the conditions
specified in Sections 7.1 and 7.2 above, have been satisfied.
8. REPRESENTATIONS AND WARRANTIES. To induce the Lenders to extend the Credit
Facilities herein contemplated, the Company and each of its Subsidiaries
party hereto hereby represents and warrants as follows:
8.1 ORGANIZATION. The Company and each of its Subsidiaries is duly
organized, validly existing and in good standing under the laws of
the state in which it is formed, has the power and authority to own,
lease and operate its assets and to conduct its business as is now
done and is duly qualified to do business as a foreign corporation
or limited liability company and is in good standing under the laws
of all jurisdictions where required by the conduct of its business
or
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ownership or leasing of its assets, except such jurisdictions, if
any, where the failure to be so qualified and in good standing,
whether considered individually or in the aggregate with all other
such failures, would not have a material adverse effect on the
ability of the Company to pay or perform the Obligations or on its
assets, liabilities, business, prospects, operations or condition
(financial or otherwise).
8.2 LATEST FINANCIALS. The audited financial statements of the Company
and its Subsidiaries as of March 31, 2002, as delivered to the
Lenders, are true, complete and accurate in all respects and fairly
present the financial condition, assets and liabilities, whether
accrued, absolute, contingent or otherwise and the results of
operations of such Persons for the period ended as of March 31,
2002. Such financial statements have been prepared in accordance
with GAAP applied consistently with preceding periods, subject to
any comments and notes contained therein.
8.3 RECENT ADVERSE CHANGES. Since March 31, 2002, neither the Company
nor any of its Subsidiaries has suffered any damage, destruction or
loss which has materially adversely affected its business or assets
and, except as previously disclosed in writing to the Lenders, no
event or condition of any character has occurred which has
materially and adversely affected its assets, liabilities, business,
operations, prospects or condition (financial or otherwise), and
neither the Company nor any of its officers or directors has any
knowledge of any event or condition which may materially adversely
affect the assets, liabilities, business, operations, prospects, or
condition (financial or otherwise) of the Company or any of its
Subsidiaries. The Company and each of its Subsidiaries is, and after
the consummation of the transactions contemplated by this Credit
Agreement will be, Solvent.
8.4 RECENT ACTIONS. Since March 31, 2002, the business of the Company
and its Subsidiaries has been conducted in the ordinary course and
neither the Company nor any of its Subsidiaries has: (i) incurred
any debt or other obligations or liabilities, whether accrued,
absolute, contingent or otherwise, other than debt and liabilities
incurred and obligations under contracts entered into in the
ordinary course of business; (ii) discharged, satisfied, paid or
cancelled any debt or any obligations, absolute or contingent, other
than current liabilities shown on the financial statements referred
to in Section 8.2, above, and current liabilities incurred since
March 31, 2002 in the ordinary course of business; or (iii) made any
loans or otherwise conducted its business other than in the ordinary
course.
8.5 TITLE. Except for sales in the ordinary course of business since
March 31, 2002, the Company or a Subsidiary of the Company has good
and marketable title to the assets reflected on the balance sheets
or notes thereon referred to in Section 8.2, above, free and clear
from all liens and encumbrances except for Permitted Liens.
8.6 LITIGATION, ETC. Except as set forth in the Disclosure Schedule,
there are no actions, suits, proceedings or governmental
investigations pending or, to the
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knowledge of the Company, its directors or officers, threatened
before any court, grand jury, arbitrator, regulatory commission,
board, administrative agency or other governmental authority against
or affecting the Company or any of its Subsidiaries, or any of its
or their properties, which (a) could, either individually or in the
aggregate, result in any material adverse change in the condition
(financial or otherwise), business, operations, assets or prospects
of the Company or any of its Subsidiaries or (b) questions the
validity or enforceability of any of the Loan Documents or
Obligations; and there is no basis known to the Company, its
officers or directors, for any such actions, suits, proceedings or
investigations.
8.7 TAXES. Except as to taxes not yet due and payable, the Company and
its Subsidiaries have timely filed all returns and reports to be
filed by it in connection with any federal, state, local or other
tax, duty or charge levied, assessed or imposed upon it, or its
property, including but not limited to income, franchise,
unemployment, social security and similar taxes; and all of such
taxes have been either paid or adequate reserve or other provision
has been made therefor.
8.8 AUTHORITY. The Company and each Subsidiary of the Company that is a
corporation has full corporate power and authority to enter into the
transactions provided for in this Credit Agreement and has been duly
authorized to do so by appropriate action of its board of directors.
Each Subsidiary of the Company that is a limited liability company
has full limited liability company power and authority to enter into
the transactions provided for in this Credit Agreement and has been
duly authorized to do so by appropriate action of its members. This
Credit Agreement, the Notes and the other Loan Documents as amended,
when executed and delivered by the Company and its Subsidiaries,
constitute the legal, valid and binding obligations of the Company
and its Subsidiaries, as applicable, enforceable in accordance with
their respective terms except as limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforceability
generally of rights of creditors.
8.9 OTHER DEFAULTS. There does not now exist any material default or
violation by the Company or any of its Subsidiaries of or under any
of the terms, conditions or obligations of: (i) with respect to the
Company and each Subsidiary of the Company that is a corporation,
its Articles of Incorporation, Regulations or Bylaws; (ii) with
respect to any Subsidiary of the Company that is a limited liability
company, its Articles of Organization or Operating Agreement; (iii)
any indenture, deed of trust or mortgage to which it is a party or
by which it is bound; (iv) any agreement or instrument evidencing
debt to which it is a party or by which it is bound; (v) any other
material franchise, permit, contract, agreement or other instrument
to which it is a party or by which it is bound; or (vi) any material
law, regulation, ruling, order, injunction, decree, condition or
other requirement applicable to or imposed upon it or affecting any
of its assets by any law or by any governmental authority, court or
agency.
8.10 CONFLICTS. Neither the execution, delivery and performance of this
Credit Agreement nor the consummation of any of the transactions
herein contemplated
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(a) will result in any default or violation by the Company or any of
its Subsidiaries of or under any of the terms, conditions or
obligation of (i) its organizational documents; (ii) any indenture,
deed of trust or mortgage to which it is a party or by which it is
bound; (iii) any agreement or instrument evidencing debt to which it
is a party or by which it is bound; (iv) any other material
franchise, permit, contract, agreement or other instrument to which
it is a party or by which it is bound; or (v) any law, regulation,
ruling, order, injunction, decree, condition or other requirement
applicable to or imposed upon it or affecting any of its assets by
any law or by any governmental authority, court or agency or (b)
will result in or require the creation of any lien, security
interest or other encumbrance (except as contemplated by this Credit
Agreement) upon any of the assets of the Company or its
Subsidiaries.
8.11 PATENTS, LICENSES, ETC. The Company and each of its Subsidiaries has
any and all licenses, permits, franchises or other governmental
authorizations necessary for the ownership or leasing of its
respective properties and the conduct of its business. The Company
and each of its Subsidiaries possesses adequate licenses, patents,
patent applications, copyrights, trademarks, trademark applications,
and trade names to continue to conduct its business as heretofore
conducted, without any conflict with the rights of any other person
or entity.
8.12 ERISA. The Company and each of its ERISA Affiliates are in
compliance in all material respects with the applicable provisions
of ERISA and the regulations and published interpretations
thereunder. No Reportable Event has occurred as to which the Company
or any such ERISA Affiliate was required to file a report with the
PBGC, and, as of the Closing Date, the present value of all benefit
liabilities under all the Plans (based on those assumptions used to
fund such Plans) did not, as of the last audited annual valuation
date applicable thereto, exceed by more than $500,000 the aggregate
value of the assets of such Plans. Neither the Company nor any such
ERISA Affiliate has incurred any Withdrawal Liability that
materially adversely affects the financial condition of the Company
and its ERISA Affiliates taken as a whole. Neither the Company nor
any such ERISA Affiliate have received any notification that any
Multiemployer Plan is in reorganization or has been terminated,
within the meaning of Title IV of ERISA, and no Multiemployer Plan
is reasonably expected to be in reorganization or to be terminated,
where such reorganization has resulted or can reasonably be expected
to result in an increase in the contributions required to be made to
such Plan that would materially and adversely affect the financial
condition of the Company and its ERISA Affiliates taken as a whole.
8.13 ENVIRONMENTAL MATTERS.
8.13.1 Except as set forth on the Disclosure Schedule, there
have been no material claims, notices, orders or
directives on environmental grounds made or delivered
to, pending or served on the Company, any of its
Subsidiaries or its agents, (i) issued by a governmental
department or agency having jurisdiction over the assets
of any
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such Person, real or personal, owned or leased,
affecting such assets or any part thereof, requiring any
work to be done upon or about such assets or any part
thereof, including but not limited to clean up orders,
or (ii) issued or claimed by any private agency or
individual affecting such assets or any part thereof.
8.13.2 To the best knowledge of the Company, except those
stored, held and used in accordance with all applicable
laws and regulations, there have not been, are not now
and will be no solid waste, hazardous waste, hazardous
substances, toxic substances, toxic chemicals,
pollutants, wastes or contaminants, underground storage
tanks, purposeful dumps, nor any accidental spills of
such in, on or about any of the assets of the Company or
any of its Subsidiaries, real or personal, owned or
leased, and no solid waste, hazardous waste, hazardous
substances, pollutants, contaminants, wastes or toxic
substance have ever been stored on any real property
owned or leased either by any such Person or by any of
their lessees, licensees, invitees or predecessors.
8.13.3 To the best knowledge of the Company, there has been no,
is not now and will be no filtering into ground water or
transmission by seepage or other draining or transfer
any solid waste, hazardous substances, hazardous waste,
pollutants or contaminants, or toxic substances which
have affected, is now affecting or will affect any of
the real property owned or leased by the Company or any
of its Subsidiaries or any sites adjoining such
property.
8.13.4 To the best knowledge of the Company, the Company and
each of its Subsidiaries have obtained all necessary
approvals or satisfactory clearances for use of its
assets from all governmental authorities, utility
companies, or development-related entities, in regard to
the use of its assets, the discharge of chemicals,
liquids and emissions, if any, and other chemicals into
the atmosphere, ground water or surface water, from its
operations.
8.14 INVESTMENT COMPANY ACT. Neither the Company nor any of its
Subsidiaries is directly or indirectly controlled by, or acting on
behalf of, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
8.15 GOVERNMENTAL CONSENTS. No consent, licenses, permits, approvals or
authorizations of, exemptions by, notices or reports to, or
registrations, filings or declarations with, any governmental
authority or agency are required to authorize the execution,
delivery or performance by the Company of this Credit Agreement, any
of the Loan Documents or any of the transactions contemplated hereby
or thereby, or are otherwise required to ensure the validity or
enforceability of this
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Credit Agreement or any of the Loan Documents, which have not been
obtained or made.
8.16 DISCLOSURE. Neither this Credit Agreement, any of the other Loan
Documents or any certificate, instrument, document or other
information furnished in writing to the Agent or any Lender in
connection herewith contains any untrue statement of a material fact
or omits to state a material fact necessary to keep the statements
herein or therein not misleading.
8.17 REGISTERED OFFICE. The Company's registered office for doing
business in Kentucky is located in Jefferson County, Kentucky and
the Company does not maintain and has not maintained a registered
office in any other county in Kentucky.
8.18 SUBSIDIARIES. The Disclosure Schedule states the exact legal name of
the Company and each of its Subsidiaries, their respective
jurisdictions of formation, and their respective employer
identification numbers and organizational identification numbers (if
any). Except as listed on the Disclosure Schedule, the Company has
no Subsidiaries and is not a party to any partnership agreement or
joint venture agreement. Except as listed on the Disclosure
Schedule, the Company does not own more than one percent (1%) of the
issued and outstanding capital stock or other ownership interests of
any Person.
8.19 MARGIN STOCK. None of the Company or any Subsidiaries of the Company
engages or intends to engage principally, or as one of its important
activities, in the business of extending credit for the purpose,
immediately, incidentally or ultimately, of purchasing or carrying
margin stock (within the meaning of Regulation U). No part of the
proceeds of any Credit Facility has been or will be used,
immediately, incidentally or ultimately, to purchase or carry any
margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock or to refund Indebtedness
originally incurred for such purpose, or for any purpose which
entails a violation of or which is inconsistent with the provisions
of the regulations of the Board of Governors of the Federal Reserve
System. None of the Company or any Subsidiary of the Company holds
or intends to hold margin stock in such amounts that more than 25%
of the reasonable value of the assets of the Company or any
Subsidiary of the Company are or will be represented by margin
stock.
8.20 STATUS OF PLEDGED COLLATERAL. All of the shares of capital stock,
partnership interests or limited liability company membership
interests intended to be included in the Collateral are or will be
upon issuance validly issued and nonassessable and owned
beneficially and of record by the pledgor free and clear of any
lien, encumbrance or restriction on transfer, except as otherwise
provided by the applicable Security Document and except as the right
of the Agent or the Lenders to dispose of such Collateral may be
limited by the Securities Act of 1933, as amended, and the
regulations promulgated by the Securities and Exchange Commission
thereunder and by applicable state securities laws. There
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are no shareholder, partnership, limited liability company or other
agreements or understandings with respect to the shares of capital
stock, partnership interests or limited liability company membership
interests included in the Collateral except for the partnership
agreements and limited liability company agreements delivered to the
Lenders in connection with the execution of this Credit Agreement.
8.21 SENIOR DEBT STATUS. The Obligations of the Company and its
Subsidiaries under this Credit Agreement, the Notes, and each of the
other Loan Documents to which it is a party do rank and will rank at
least pari passu in priority of payment with all other Indebtedness
of the Company or any such Subsidiary except Indebtedness of the
Company or any such Subsidiary to the extent secured by Permitted
Liens. There is no lien or encumbrance upon or with respect to any
of the properties or income of the Company or any Subsidiary of the
Company that secures indebtedness or other obligations of any Person
except for Permitted Liens.
9. AFFIRMATIVE COVENANTS. The Company covenants and agrees that from the date
of execution of this Credit Agreement until all Obligations to the Lenders
have been fully paid and this Credit Agreement terminated:
9.1 [RESERVED].
9.2 BOOKS AND RECORDS; ACCESS. The Company will maintain, and cause each
of its Subsidiaries to maintain, proper books of account and other
records and enter therein complete and accurate entries and records
of all of its transactions in accordance with GAAP; give
representatives of each Lender access to the books, records and
premises of the Company and its Subsidiaries at all reasonable
times, including permission to examine, copy and make abstracts from
any of such books and records, and to audit the Collateral, and
provide such other information as the Agent or any Lender may from
time to time reasonably request; and furnish to the Agent for
examination copies of any reports, statements or returns which the
Company may make to or file with any governmental department, bureau
or agency, federal or state and any letter, other than routine
correspondence, directed to the management of the Company or their
auditors or independent accountants relating to its or their
financial statements, accounting procedures, tax returns, financial
condition or the like; and make their officers and independent
certified public accountants available to the Lenders from time to
time upon reasonable notice to discuss their businesses, operations,
assets, liabilities and condition (financial or otherwise) and any
statements, records or documents furnished or made available to the
Agent or any of the Lenders.
9.3 MONTHLY STATEMENTS. The Company will furnish the Agent within thirty
(30) days after the end of each calendar month consolidated and
consolidating financial statements of the Company and its
Subsidiaries, which financial statements shall: (a) be in reasonable
detail and in form reasonably satisfactory to the Agent, (b) be
certified by a Responsible Officer of the Company that such
statements are true and correct to the best of his/her knowledge and
are prepared
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in accordance with GAAP applied on a basis consistent with the
preceding month's statements, if any, and (c) contain a certificate
by such officer stating that to the best of such officer's
knowledge, no Default or Event of Default has occurred during such
period and that as of the date of the certificate, no Default or
Event of Default exists, except as specified in such certificate.
Such certificate will be in the form of the attached Exhibit I.
Those financial statements will include a balance sheet as of the
end of such month and statements of income and retained earnings and
changes in financial position (or cash flow statements) for such
month. The Agent will promptly send a copy of such statements and
certificate to each Lender.
9.4 [RESERVED.]
9.5 AUDITS. At its discretion at any time after an Event of Default, the
Agent may engage an independent appraiser to perform a valuation of
the Company and its business. The report of such appraiser will be
for the Lenders' sole use and all reasonable fees and expenses
relating to such valuation shall be paid by the Company upon demand.
9.6 ANNUAL STATEMENTS. The Company will furnish the Agent within ninety
(90) days after the end of each fiscal year, with copies of annual
audited consolidated and consolidating financial statements for the
Company and its Subsidiaries, which will include a balance sheet of
the Company and its Subsidiaries as of the end of such year, and a
statement of income, retained earnings and cash flow for such year.
The audited financial statements will contain the unqualified
opinion of an independent certified public accountant acceptable to
the Agent and a certificate stating that in making their audit they
obtained no knowledge of the existence of any Default or Event of
Default and its examination will have been made in accordance with
generally accepted auditing standards and such opinion will contain
a report reasonably satisfactory to the Agent of any inconsistency
in the application of generally accepted accounting principles with
the preceding years' statements. Concurrently with the delivery of
the foregoing financial statements, a Responsible Officer of the
Company will deliver to the Agent certificates with respect to such
annual statements in the form required by Section 9.3, above. The
Agent will promptly send a copy of such financial statements and
certificates to each Lender.
9.7 AUDITOR'S LETTERS. Concurrently with delivery of annual audited
financial statements, the Company shall furnish copies of any
letter, other than routine correspondence or communications,
directed to the management of the Company or any of its Subsidiaries
by its auditors or independent accountants, relating to its
financial statements, accounting procedures, financial condition,
tax returns, or the like, for fiscal year then being reported.
9.8 ANNUAL BUDGETS, FORECASTS AND COMPARISONS. Concurrently with
delivery of annual audited financial statements, the Company will
submit to the Agent a copy of the Company's annual budget and
financial forecast for the succeeding fiscal
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year, at a minimum, including a summary of the Company's strategic
operating plan together with key assumptions underlying the
forecast, all in form and content acceptable to Agent. With each of
the financial statements delivered in accordance with Sections 9.3
and 9.6, above, the Company will deliver statements for each
division of the Company comparing actual performance to projected
and prior year's performance for such period.
9.9 NOTICES OF DEFAULT. Promptly after the Company obtains knowledge
thereof, the Company will notify the Agent of any Default, Event of
Default or Potential Default, the nature thereof, period of
existence thereof and action the Company proposes to take with
respect thereto.
9.10 PAYMENT OF CHARGES. The Company will pay and discharge when due all
taxes, assessments and governmental charges and levies imposed upon
it, its income, profit, business or assets, and all other lawful
claims of any kind which, if unpaid, might become a lien or charge
upon all or any part of its assets, except those which currently are
being contested in good faith by appropriate proceedings and for
which the Company has set aside adequate reserves in accordance with
GAAP, but any such disputed item will be paid forthwith upon the
commencement of any proceeding for the foreclosure of any lien which
may have attached with respect thereto, unless the Agent will have
received an opinion in form and substance and from legal counsel of
the Company acceptable to it that such proceeding is without merit.
9.11 EXISTENCE; OPERATIONS. The Company and each Subsidiary of the
Company will maintain and preserve its corporate existence and right
to carry on its business; maintain and preserve all material rights,
powers, privileges and franchises; continue in operation in
substantially the same manner as at present, except where such
operation is rendered impossible by a fire, strike or other events
beyond their control; keep its real and personal properties in good
operating condition and repair; make all necessary and proper
repairs, renewals, replacements, additions and improvements thereto
and comply with the provisions of all leases to which it is a party
or under which it occupies or holds real or personal property so as
to prevent any loss or forfeiture thereof or thereunder.
9.12 INSURANCE. The Company and each of its Subsidiaries will keep its
insurable real and personal property insured with responsible
insurance companies reasonably satisfactory to the Agent against
loss or damage by fire, windstorm and other hazards which are
commonly insured against with an extended coverage endorsement in an
amount equal to not less than eighty percent (80%) of the insurable
value thereof on a replacement cost basis (or, if greater, the
amount necessary so that the insured will not be deemed a co-insurer
under any coinsurance provisions of any such policy) and also
maintain public liability insurance and flood insurance in a
reasonable amount. In addition, the Company will and will cause its
Subsidiaries to maintain extended liability insurance covering their
operations in a reasonable amount considering the type of business
operations of such Persons and the amount and form of such insurance
and the
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companies issuing such insurance shall be consistent with the
quality, form and amount of insurance presently maintained by such
parties. All such policies shall provide that thirty (30) days'
prior written notice must be given to the Agent before such policy
is altered or cancelled. All casualty policies shall name the Agent
as lender loss payee and additional insured (for the benefit of
Lenders) (or, if applicable, a standard mortgagee clause and waiver
of insurer's right of subrogation against funds paid under the
standard mortgagee endorsement). The right to adjust all claims
under such policies and all amounts recoverable under such policies
hereby are assigned to the Agent (for the benefit of the Lenders);
and the amounts collected by the Agent, at the option of the Agent,
may be used in any one or more of the following ways: (a) applied to
the payment of any sums then in default under the Obligations; (b)
used to fulfill any Obligations that the Company has failed to
perform; (c) unless the insurer denies liability to any insured,
used to restore the applicable property to a condition satisfactory
to the Agent on such terms and conditions as the Agent may
determine; (d) released to the Company; and/or (e) applied to any of
the Obligations, whether matured or unmatured. Schedules of all
insurance of the Company and its Subsidiaries will be submitted to
the Agent upon request. Such schedules will contain a description of
the risks covered, the amounts of insurance carried in each risk,
the name of the insurer and the cost of such insurance to the
insured. Such schedules will be supplemented by the Company from
time to time to reflect any change in insurance coverage. The
Company will deliver to Agent certificates representing such
insurance policies on the Closing Date and thereafter updated
certificates at least thirty (30) days prior to the expiration of
each insurance policy date as reflected in the prior certificates
evidencing that the premiums for such policies have been paid in
full.
9.13 COMPLIANCE WITH LAWS. The Company and each of its Subsidiaries will
comply with all laws, regulations and court and governmental orders
applicable to it, any of its assets or the operation of its
business, including without limitation those relating to
environmental, insurance, health and employee benefit matters, the
failure to comply with which, whether considered individually or in
the aggregate, could materially adversely affect the ability of the
Company or its Subsidiaries to pay or perform any of the Obligations
or the business, operations, assets, prospects or condition
(financial or otherwise) of the Company or any of its Subsidiaries.
9.14 ENVIRONMENTAL VIOLATIONS. The Company will immediately notify the
Agent of any violation of any rule, regulation, statute, ordinance,
or law relating to public health or the environment.
9.15 ENVIRONMENTAL AUDIT AND OTHER ENVIRONMENTAL INFORMATION. The Company
will provide copies of all environmental reports, audits, studies,
data, results, and findings obtained by the Company or any of its
Subsidiaries from work conducted by the Company or any Subsidiaries
thereof or any other Person (including, but not by way of
limitation, the United States Environmental Protection Agency and
any state Environmental Protection Agency and their agents,
representatives, and
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contractors) on any property of the Company or any Subsidiary
thereof or property adjacent thereto. Copies of all such existing
reports, audits, studies, data, results and data will be delivered
to the Agent on or before the Closing Date, and any and all such
materials hereafter obtained will be delivered to the Agent as soon
as such reports, audits, studies, data, results, and findings become
available to any of the Company. If the submissions are considered
inadequate or insufficient in order for the Agent to adequately
consider the status of environmental compliance or if the
submissions are in error, then the Agent may require the Company, at
the Company's sole expense, to engage an independent engineering
firm acceptable to the Agent to conduct a complete environmental
report, study, finding or audit in as timely a fashion as is
reasonably possible. In addition, the Company will provide the Agent
with information related to remedial action at any property, the
Company or any Subsidiary thereof or adjacent to such property as
soon as such information becomes available to the Company or any
Subsidiary thereof (such information will include but not be limited
to a copy of the Remedial Investigation/Feasibility Study for that
property).
9.16 BUSINESS NAMES AND LOCATIONS. The Company will immediately notify
the Agent of any change in the name under which the Company or any
of its Subsidiaries conducts its business and, unless the Agent
otherwise consents in writing pursuant to this Credit Agreement,
keep and maintain all of the Collateral only at the addresses listed
in the Disclosure Schedule (and, as to any address disclosed therein
as a subcontractor location for Inventory, not permit at any time
the value of such Inventory at any such location to exceed $200,000)
and keep the principal places of business of the Company and each
Subsidiary thereof at the addresses specified in the Disclosure
Schedule. The Company will notify the Agent immediately upon the
opening or closing of any place from which the Company or any
Subsidiary thereof conducts business.
9.17 ACCOUNTS. So long as any of the Credit Facilities are in effect, the
Agent will remain the primary bank of account of the Company and its
Subsidiaries.
9.18 ERISA COMPLIANCE. The Company will, and will cause its Subsidiaries
to, (a) comply in all material respects with the applicable
provisions of ERISA and (b) furnish to the Agent (i) as soon as
possible, and in any event within thirty (30) days after any
Responsible Officer of the Company or any ERISA Affiliate knows or
has reason to know that any Reportable Event has occurred that alone
or together with any other Reportable Event could reasonably be
expected to result in liability of the Company to the PBGC in an
aggregate amount exceeding $500,000 a statement of a financial
officer of the Company, setting forth details as to such Reportable
Event and the action that the Company proposes to take with respect
thereto, together with a copy of the notice of such Reportable
Event, if any, given to the PBGC, (ii) promptly after receipt
thereof, a copy of any notice the Company or any ERISA Affiliate may
receive from the PBGC relating to the intention of the PBGC to
terminate any Plan or Plans (other than a Plan maintained by an
ERISA Affiliate which is considered an ERISA Affiliate only
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pursuant to subsection (m) or (o) of Code Section 414) or to appoint
a trustee to administer any such Plan, (iii) within ten (10) days
after the due date for filing with the PBGC pursuant to Section
412(n) of the Code of a notice of failure to make a required
installment or other payment with respect to a Plan, a statement of
a financial officer of the Company setting forth details as to such
failure and the action that the Company proposes to take with
respect thereto together with a copy of any such notice given to the
PBGC and (iv) promptly and in any event within thirty (30) days
after receipt thereof by the Company or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, a copy of each notice received by
the Company or any ERISA Affiliate concerning (A) the imposition of
Withdrawal Liability in an amount exceeding $500,000 or (B) a
determination that a Multiemployer Plan is, or is expected to be,
terminated or in reorganization, both within the meaning of Title IV
of ERISA, and which, in each case, is expected to result in an
increase in annual contributions of the Company or an ERISA
Affiliate to such Multiemployer Plan in an amount exceeding
$500,000.
9.19 FURTHER ASSURANCES. The Company will execute and deliver, or cause
to be executed and delivered, all such additional documents,
agreements and instruments (including but not limited to Uniform
Commercial Code financing statements) as the Agent or the Lenders
may reasonably request in order to effectuate the transactions
contemplated hereby or by the Security Documents or to preserve,
protect, or perfect the rights of the Agent, or the Lenders
hereunder, with respect to the Collateral.
9.20 COMPLIANCE WITH AGREEMENTS. The Company will observe, or cause to be
observed, all obligations, covenants and agreements applicable to
the Company or any Subsidiary thereof under the Loan Documents.
10. NEGATIVE COVENANTS. The Company covenants and agrees that from the date of
execution of this Credit Agreement until all of the Obligations have been
fully paid and this Credit Agreement terminated it will not, and it will
cause each of its Subsidiaries to not:
10.1 DEBT. Incur any Indebtedness other than: (a) the Credit Facilities;
(b) the existing Indebtedness described in the Company's
consolidated financial statements as of March 31, 2002 delivered to
the Agent; (c) open account obligations incurred in the ordinary
course of business; (d) rental and lease payments as described in
Section 10.2, below; (e) purchase money debt up to $250,000 in any
Fiscal Year incurred in connection with the acquisition of capital
assets limited to the specific assets acquired with such financing
(subject to the acquisition of such assets and incurrence of such
debt being otherwise permitted by the terms of this Credit
Agreement) and (f) Subordinated Debt of up to $10,000,000 in the
aggreate.
10.2 LEASES. Enter into or permit to remain in effect: (i) any operating
rental or lease agreement for real or personal property whose term,
including renewal options, exceeds five (5) years (except for the
term of the Lease dated as of February 26, 1999 (the "Scottsburg
Lease") between the Company and Indiana Properties,
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LLC) which on an annual basis would exceed $600,000, or (ii) any
capital lease agreement for real or personal property whose term,
including renewal options, exceeds five (5) years and which on an
annual basis would exceed $50,000. Notwithstanding the above to the
contrary, the Company may enter into leases funded by a Lender;
provided that the Company's and its Subsidiaries' aggregate
financial commitment under all such leases does not exceed
$1,500,000 during the term of this Credit Agreement.
10.3 LIENS. Incur, create, assume, become or be liable in any way, or
suffer to exist any mortgage, pledge, lien, charge or other
encumbrance of any nature whatsoever on any of their respective
assets, now or hereafter owned, other than Permitted Liens; be bound
by or subject to any agreement or option to do so; or be bound by or
subject to any agreement (other than this Credit Agreement) not to
do so (including but not limited to any agreement that imposes a
requirement that equal and ratable security be given in connection
therewith or attaches any other condition to any such matter.
10.4 LEVERAGE RATIO. Permit the Leverage Ratio for the Company and its
Subsidiaries to exceed 3.25 to 1.00 as of the end of any Fiscal
Quarter on a trailing four quarters basis.
10.5 FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge Coverage Ratio
for the Company and its Subsidiaries to be less than 1.25 to 1.00 as
of the end of any Fiscal Quarter on a trailing four quarters basis.
10.6 TANGIBLE NET WORTH. Permit Tangible Net Worth for the Company and
its Subsidiaries to be less than $6,880,268, plus 50% of positive
consolidated net income (without deduction for any losses) earned
from the Closing Date to the date of determination, plus 100% of the
proceeds from any issuance by the Company or any of its Subsidiaries
to any Person of (a) shares of its capital stock or other equity
interests, (b) any shares of its capital stock or other equity
interests pursuant to the exercise of options or warrants or (c) any
shares of its capital stock or other equity interests pursuant to
the conversion of any debt securities to equity.
10.7 GUARANTEES. Except in connection with the endorsement and deposit of
checks in the ordinary course of business for collection, guarantee,
endorse, assume or otherwise in any way be or become contingently
liable or responsible for, directly or indirectly, the obligation of
any Person.
10.8 CORPORATE CHANGES. Amend or change its Articles of Incorporation or
Code of Regulations, recapitalize or otherwise change or adjust its
capital stock, other than the conversion of Indebtedness to equity
upon terms satisfactory to the Lenders.
10.9 REDEMPTIONS. Purchase, retire, redeem or otherwise acquire for
value, directly or indirectly, any shares of its capital stock,
options, warrants, membership interests or other equity interests
now or hereafter outstanding, or authorize or set aside any funds or
other property for any such purpose; provided, however, that the
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Company may utilize up to $1,500,000 in the aggregate during the
term of this Credit Agreement for such redemptions ("Permitted Stock
Buybacks").
10.10 DIVIDENDS. Declare or pay dividends (other than dividends payable
solely in shares of stock) of any kind on any shares of capital
stock now or hereafter outstanding or make any other distribution of
cash or property to its shareholders, or authorize or set aside any
funds or other property for any such purpose. No dividend may be
paid if at the time of making or declaring such dividend and after
giving effect thereto any Default or Event of Default exists and no
dividend may be paid if a Default or Event of Default has been
waived by the Lenders, but not cured by the Company.
10.11 INVESTMENTS, LOANS AND ADVANCES. Make or commit to make any loan,
extension of credit, advance or contribution of capital to any
Person, or purchase, acquire or hold any stock, equity interest,
other securities or evidences of indebtedness of, or make any
investment or purchase, acquire or hold any interest whatsoever in,
any other Person other than (a) loans, extensions of credit,
advances or contributions of capital to its Subsidiaries in an
amount not to exceed $500,000 in the aggregate; (b) advances to
employees of the Company not to exceed $15,000 per employee or
$250,000 in the aggregate when cumulated with all other such
employee advances to cover reasonable expenses of employees, such as
travel expenses, or to cover reasonable cash advances against
employees' salaries; and (c) short term investments of excess
working capital invested in one or more of the following: (i)
investments (of one (1) year or less) in direct or guaranteed
obligations of the United States, or any agencies thereof; and (ii)
investments (of one (1) year or less) in certificates of deposit of
banks or trust companies organized under the laws of the United
States or any jurisdiction thereof, provided that such banks or
trust companies are insured by the Federal Deposit Insurance
Corporation and have capital in excess of $150,000,000.
10.12 MERGER OR SALE OF ASSETS. Merge or consolidate with or into any
other Person, dissolve or sell, lease or otherwise dispose of any of
its assets (or enter into an agreement to do any of the foregoing),
or permit any of its Subsidiaries to do any of the foregoing, except
for: (i) sale of inventory in the ordinary course of business; and
(ii) other dispositions of obsolete, under-utilized or idle assets
in the ordinary course of business or with the prior written consent
of the Agent.
10.13 ACQUISITIONS. Other than Permitted Acquisitions, purchase, lease or
otherwise acquire all or any substantial part of the assets of any
Person, or commit to enter into any Acquisition, or create any
Subsidiary, or enter into any joint venture or partnership, or
permit any Subsidiary to do any of the foregoing without the prior
written consent of the Required Lenders in each instance.
10.14 TRANSFER OF COLLATERAL. Transfer, or permit the transfer, to another
location of any of the Collateral or the books and records related
to any of the Collateral; provided, however, that the Company may
transfer Collateral or the books and records related thereto to
another location with the prior written consent of the
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Agent and if the Company has provided to the Agent prior to such
transfer an opinion addressed to the Agent in the form and substance
and written by counsel acceptable to the Agent to the effect that
the perfection and priority of the Agent's security interest in the
Collateral will not be affected by such move or if it will be
affected, setting forth the steps necessary to continue the
perfection and priority of the Agent's security interest together
with the commencement of such steps by the Company at its expense.
10.15 SALE AND LEASEBACK. Directly or indirectly enter into any
arrangement to sell or transfer all or any part of its fixed assets
and thereupon or within one (1) year thereafter rent or lease (or
permit any Subsidiary to rent or lease) any assets so sold or
transferred.
10.16 LINE OF BUSINESS. Enter into any line or area of business
substantially different from the business or activities in which it
is presently engaged, or permit any Subsidiary to do so.
10.17 WAIVERS. Waive any right or rights of substantial value which,
singly or in the aggregate, is or are material to the condition
(financial or otherwise), properties, business or operations of the
Company.
10.18 PAYMENTS TO SHAREHOLDERS AND AFFILIATES. Except for payments
permitted by Sections 10.9, 10.10 and 10.11 and except for
reasonable and customary salaries and bonuses, make any payment or
distribution (including, without limitation, debt repayment, payment
for goods or services, or otherwise) other than reasonable and
ordinary advances to cover reasonable expenses of employees, such as
travel expenses, to its shareholders or to any Affiliate without the
prior written consent of the Agent.
10.19 TRANSACTIONS WITH AFFILIATES. Enter into any transaction, including,
without limitation, any purchase, sale, transfer, lease or exchange
of property or the rendering of any service, with any Affiliate,
unless such transaction is otherwise permitted under this Credit
Agreement, is in the ordinary course of the Company's business and
is on fair and reasonable terms no less favorable to the Company
than it would obtain in a comparable arm's length transaction with a
non-Affiliate.
10.20 POST-CLOSING MATTERS. Fail to deliver to the Lender the documents,
if any, noted as post-closing items on the Closing Document List of
even date herewith. Such documents will be delivered on or before
the date specified in the Closing Document List and will be in form
and substance satisfactory to the Lenders.
10.21 BOND DOCUMENTS. Amend or otherwise modify, or agree to the amendment
or modification of, the Bond Documents to which the Company is a
party or to which the Company shall have a right to consent to any
amendment or modification, and fail to obtain the consent of the
Lenders whenever required under the Indentures.
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10.22 LIMITATION ON OPTIONAL CALLS. Exercise its rights under the Bond
Documents to direct the Issuer to call the Bonds for any optional
redemption thereof or convert the interest rate thereon to the Long
Term Rate, unless the Company first demonstrates to the reasonable
satisfaction of the Lenders and their legal counsel that at the time
of such redemption or conversion the Lenders will be fully
reimbursed for all drawings on the Letters of Credit in connection
with such redemption or conversion.
10.23 EXCESS BORROWING. Permit the Advances to violate any of the
applicable Revolving Conditions.
11. EVENTS OF DEFAULT. Upon the occurrence of any of the following events:
11.1 PAYMENT. The non-payment of (a) any principal amount of any of the
Advances, (b) any mandatory prepayment pursuant to this Credit
Agreement, (c) any amounts due under this Credit Agreement as
reimbursement for a drawing under the Letters of Credit or Standby
Letters of Credit, Letter of Credit Fees, or interest on any such
drawing or Letter of Credit Fees, or (d) any interest, fees or other
amounts owing hereunder or under any of the other Loan Documents
within ten (10) days of when the same is due; or
11.2 BOND DOCUMENTS. Any of the events of default specified in the Bond
Documents; or
11.3 COVENANTS. The default in the due observance of any other covenant
or agreement to be kept or performed by the Company under the terms
of this Credit Agreement or any of the Security Documents and the
failure or inability of the Company to cure such default within
thirty (30) days of the occurrence thereof; provided that such
thirty (30) day grace period will not apply to: (a) any default
which in the Agent's good faith determination is incapable of cure,
(b) any default that has previously occurred, (c) any default in any
negative covenants, (d) any payment default, (e) any failure to
maintain insurance or to permit inspection of the Collateral or the
books and records, or (f) any failure to provide any notice required
hereunder; or
11.4 REPRESENTATIONS AND WARRANTIES. Any representation, warranty or
statement made by or on behalf of the Company in this Credit
Agreement, in any other Loan Document or in any report, certificate,
opinion (including any opinion of counsel to the Company), financial
statement or other instrument furnished at any time under or in
connection with this Credit Agreement or any of the Obligations is
false or erroneous in any material respect on or as of the date made
or any material breach thereof has been committed; or
11.5 OBLIGATIONS. Except as provided in Sections 11.1, 11.2 or 11.3,
above, the default by the Company in the due observance of any other
covenant or agreement to be kept or performed by the Company under
the terms of any of the Obligations to any Lender and the lapse of
any applicable cure period provided in such
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Obligations with respect to such default, or, if so defined therein,
the occurrence of any Event of Default or Default and the Company's
failure to cure such Event of Default or Default within any
applicable cure period (as such terms are defined in the
Obligations) under any of such obligations; or
11.6 EXECUTION, ATTACHMENT, ETC. The commencement of any foreclosure
proceedings, proceedings in aid of execution, attachment actions,
levies against, or the filing by any taxing authority of a lien
against, any of the Collateral; or
11.7 LOSS, THEFT OR SUBSTANTIAL DAMAGE TO THE COLLATERAL. In addition to
the rights of the Agent to deal with proceeds of insurance as
provided herein, the loss, theft or substantial damage to Collateral
if the result of such occurrence (singly or in the aggregate) is the
failure or inability of the Company to resume substantially normal
operation of its business within ninety (90) days of the date of
such occurrence; or
11.8 JUDGMENTS. Unless in the opinion of the Agent adequately insured or
bonded, the entry of a final judgment for the payment of money
involving more than $500,000 against the Company and the failure by
the Company to discharge the same, or cause it to be discharged,
within ninety (90) days from the date of the order, decree or
process under which or pursuant to which such judgment was entered,
or to secure a stay of execution pending appeal of such judgment; or
the entry of one or more final non-monetary judgment(s) or order(s)
which, singly or in the aggregate, does or could reasonably be
expected to (i) cause a material adverse change in the value of the
Collateral or the condition (financial or otherwise), operations,
properties or prospects of the Company, or (ii) have a material
adverse effect on the ability of the Company to perform its
obligations under this Credit Agreement or any of the other Loan
Documents or any of the Obligations, or (iii) have a material
adverse effect on the rights and remedies of the Agent under this
Credit Agreement or any of the other Loan Documents or any of the
Obligations and the failure by the Company to secure a stay of
execution pending appeal of such judgment or order; or
11.9 BANKRUPTCY, ETC. The Company (a) dissolves or is the subject of any
dissolution, winding up or liquidation; (b) becomes insolvent; (c)
makes a general assignment for the benefit of creditors; or (d)
files or has filed against the Company a petition in bankruptcy, for
a reorganization or an arrangement, or for a receiver, trustee or
similar creditors' representative for the property or assets of the
Company or any part thereof, or any other proceeding under any
federal or state insolvency law (and if filed against the Company
without its acquiescence, the same is not contested by the Company
within ninety (90) days thereof and has not been dismissed or
discharged within ninety (90) days thereof); or
11.10 IMPAIRMENT OF SECURITY. The validity or effectiveness of any Loan
Document or the transfer, grant, pledge, mortgage or assignment by
the Company of any lien hereunder or thereunder to the Agent is
impaired or contested; or any Security Document is amended,
hypothecated, subordinated, terminated or discharged, or
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if any Person is released from any of its covenants or obligations
of such person thereunder any Security Document except to the extent
that the Agent expressly consents in writing; or
11.11 OTHER INDEBTEDNESS. A default in payment with respect to any
Indebtedness in excess of $250,000 in principal amount singly or in
the aggregate of or guaranteed by the Company (other than to a
Lender pursuant to the Credit Facilities); or any other breach or
default or event occurs with respect to any such Indebtedness if the
effect of such breach, default or event is to accelerate the
maturity of such Indebtedness (or otherwise allow the holders to
cause such Indebtedness to become due prior to its stated maturity),
whether or not such breach, default or event is waived; provided,
however, that a material adverse change default of the Lease
Agreement between PNC Leasing Corp. and the Company in and of itself
will not be deemed an Event of Default under this Credit Agreement;
11.12 AMENDMENT. Any amendment is made to the Bond Documents or any waiver
of the terms thereof is granted, or any action is taken pursuant to
the Bond Documents which requires the prior written consent of the
Agent and such consent is not obtained; or
11.13 CHANGE OF CONTROL. Any person or group of persons (within the
meaning of Sections 13(d) or 14(a) of the Securities Exchange Act of
1934, as amended) shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 promulgated by the Securities and Exchange
Commission) of 51% or more of the voting capital stock of the
Company; or (ii) within a period of twelve (12) consecutive calendar
months, individuals who were directors of the Company on the first
day of such period shall cease to constitute a majority of the board
of directors of the Company;
then in any such event ("Event of Default"), the Agent may, with the
consent of the Lenders, or upon the request of the Lenders shall, take any
or all of the following actions (provided that if any Event of Default
specified in Section 11.9, above, occurs, the results described in clauses
(a) and (b), below, shall occur automatically):
a. declare the Commitments terminated,
b. declare all principal, interest and other amounts due and payable
hereunder and under the Loan Documents, and the maximum amount
available to be drawn under all outstanding Letters of Credit, to be
immediately due and payable whereupon all such amounts shall
immediately be due and payable, without presentment, demand, protest
or notice of any kind, all of which hereby are waived by the Company
and require the immediate purchase by the Company of all Bonds held
by the Agent and/or the deposit by the Company with the Agent in a
cash collateral account of an amount equal to the Letter of Credit
Amounts,
c. exercise all rights and remedies under the Bond Documents,
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d. notify the Trustee of such Event of Default, direct the Trustee to
declare an Event of Default, as defined in the Indenture, and
accelerate the Bonds, direct the Paying Agent to draw on the Letter
of Credit, and direct the Trustee to exercise remedies under the
Bond Document,
e. by written notice to the Company, the Trustee, the Tender Agent and
the Remarketing Agent, terminate the Liquidity Period, and
f. exercise any other rights and remedies provided hereunder, under any
of the Loan Documents and/or by applicable law. After the occurrence
of any Event of Default the Lenders are authorized at any time and
from time to time without notice to the Company to offset,
appropriate and apply to all or any part of the Obligations all
moneys, credits, deposits (general or special, demand or time,
provisional or final) and other property of any nature whatsoever of
the Company now or at any time hereafter in the possession of, in
transit to or from, under the control or custody of, or on deposit
with (whether held by the Company individually or jointly with
another party) any of the Lenders and any or all indebtedness at any
time owing by such Lender to or for the credit or account of the
Company. The rights and remedies of the Lenders upon the occurrence
of any Event of Default will include but not be limited to all
rights and remedies provided in the Security Documents and all
rights and remedies provided under applicable law. The Company
irrevocably waives (a) any requirement of marshalling of the
Collateral upon the occurrence of any Event of Default and (b) any
right to direct the application of any payments received by any
Lender or the Agent from or on behalf of the Company after the
occurrence of any Event of Default.
From and after the date on which the Agent has taken any action pursuant to
this Section 11 and until all of the Obligations have been paid in full,
any and all proceeds received by the Agent or any Lender from any sale or
other disposition of the Collateral, or any part thereof, or the exercise
of any other remedy by the Agent, shall be applied as follows:
a. first, to reimburse the Agent and the Lenders for out-of-pocket
costs, expenses and disbursements, including reasonable attorneys'
and paralegals' fees and legal expenses, incurred by the Agent and
the Lenders (or any of them) in connection with realizing on the
Collateral or collection of any Obligations under any of the Loan
Documents, including advances made by the Agent and the Lenders (or
any of them) for the maintenance, preservation, protection or
enforcement of, or realization upon, the Collateral, including
advances for taxes, insurance, repairs and the like and reasonable
expenses incurred to sell or otherwise realize on, or prepare for
sale or other realization on, any of the Collateral;
b. second, to the repayment of all loans, advances, debts, liabilities,
obligations, covenants and duties owing to the Agent and/or any or
all of the Lenders from the Company or its Subsidiaries arising
under this Credit Agreement, the Letters of Credit, the Notes, the
Standby Letters of Credit, the Letter of Credit Documents,
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the Hedging Agreements, or any of the other Loan Documents, in such
manner as the Agent may reasonably determine in its discretion;
c. third, to the repayment of all the remaining Obligations then due
and unpaid to the Agent and/or any or all of the Lenders, whether of
principal, interest, fees, expenses or otherwise, whether arising
out of overdrafts on deposit or other accounts or electronic funds
transfers (whether through automated clearing houses or otherwise),
in such manner as the Agent may reasonably determine in its
discretion; and
d. the balance, if any, as required by applicable law.
12. INTERCREDITOR LIEN AND PAYMENT PROVISIONS.
12.1 LIEN PRIORITY.
12.1.1 The Company has granted to the Agent, for the benefit of
the Lenders, a lien on and security interest in the
Collateral to secure payment of the Obligations.
Notwithstanding the date, manner or order of perfection,
attachment or filing, all pledges, liens and security
interests of any kind that any Lender now has or
hereafter acquires in any or all of the Collateral, are
and shall be subordinate, inferior and subject to the
pledges, liens and security interests of the Agent for
the benefit of the Lenders in the Collateral.
12.1.2 None of the Lenders will (i) release any Collateral or
(ii) take any action with respect to foreclosure or
repossession of any Collateral upon an Event of Default
without, in each case, the prior written consent of the
Agent and the Lenders, so long as this Credit Agreement
is in effect or any obligations exist between the
Company and the Lenders pursuant thereto or pursuant to
the Security Documents. The Lenders will cooperate with
each other with regard to all such actions with respect
to such Collateral and in all events, sums due and owing
the Lenders under this Credit Agreement, the Obligations
or the other Loan Documents will be paid out of any
amounts realized upon any disposition or other transfer
of the Collateral prior to the application thereof to
any other obligation of the Company to any Lender.
12.2 PARTICIPATION IN LETTERS OF CREDIT. Immediately upon the issuance of
each Letter of Credit, the Agent shall be deemed to have sold and
transferred to each Lender, and each Lender shall be deemed to have
purchased and received from the Agent, in each case irrevocably and
without any further action by any party, an undivided interest and
participation in such Letter of Credit, each drawing thereunder and
the Obligations of the Company under this Credit Agreement related
to such Letter of Credit in an amount equal to the Ratable Portion
of such
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Lender therein, to the end that all of the Lenders shall share the
obligations and risks as to Letters of Credit in accordance with
their respective Ratable Portions. Each Lender irrevocably agrees to
pay to the Agent upon demand at any time the amount of such Lender's
participation in such Letter of Credit Obligation.
12.3 SHARING OF PAYMENTS, ETC.
12.3.1 Except as otherwise expressly required by the terms of
this Credit Agreement each payment or prepayment of
principal, interest, fees, expenses and other charges
under the Credit Facilities and each reduction of the
Total Revolving Commitment will be applied pro-rata
among the Lenders in accordance with their respective
Ratable Portions applicable thereto.
12.3.2 If any Lender at any time obtains any payment (whether
voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of Advances
or Letter of Credit Obligations owing to it, as
applicable (other than payments to the Agent in respect
of Letter of Credit Obligations, and payments of fees
and expenses to the Agent pursuant to Sections
2.13.2(c), (d), and (e) and of indemnities and expenses
to the Agent pursuant to Sections 2.10.8, 16.12 and
16.13 hereof, in excess of its pro rata share of
payments on account of Advances or Letter of Credit
Obligations, as the case may be), such Lender will
forthwith purchase from the other Lenders, such
participations in the Advances or Letter of Credit
Obligations, as applicable, owing to them as will be
necessary to cause such purchasing Lender to share the
excess payment ratably with each of them; provided,
however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender will be rescinded
and such Lender will repay to the purchasing Lender the
purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such
Lender's required payment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Company
agrees that any Lender so purchasing a participation
from another Lender pursuant to this Credit Agreement
may, to the fullest extent permitted by law, exercise
all of its rights of payment (including the right of
set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Company
in the amount of such participation.
12.3.3 The Company and the Lenders further acknowledge that the
Agent shall not be obligated to make any Advances to the
extent that any
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of the other Lenders do not contribute their Ratable
Portion of any Advance.
12.3.4 Each Lender's Ratable Portion of any payment hereunder
shall be reduced to the extent that such Lender has not
contributed its Ratable Portion of any amount owing to
the Agent hereunder.
12.3.5 Each Lender's obligation to purchase participation
interests pursuant to this Credit Agreement shall be
absolute and unconditional.
12.3.6 Each Lender shall be entitled to receive from the Agent
its Ratable Portion of interest on Advances of such
Lender only as calculated based upon funds actually
received by the Agent from each Lender by 11:00 a.m.
(Cincinnati time) on the day due from such Lender. Funds
received by the Agent after such cut off time will be
treated as having been received by the Agent on the next
Business Day following the day on which received.
12.3.7 To the extent that the Agent shall have disbursed a
Borrowing on a day prior to receipt by the Agent of a
Lender's Ratable Portion of such Borrowing, interest
accrued and paid on such unfunded sums will be for the
account of the Agent.
12.4 RECEIPT OF PAYMENTS BY LENDERS. Should any payment or distribution
not permitted by the provisions of this Credit Agreement or the
Security Documents or proceeds thereof be received by any Lender
upon or with respect to all or any part of the Notes, Letter of
Credit Obligations or the Obligations and/or the Collateral prior to
the full payment and satisfaction of the Obligations in the priority
set forth in this Section 12.4 and the termination of all financing
arrangements between the Lenders and the Company, such Lender will
deliver the same to the Agent in precisely the form received (except
for the endorsement or assignment of the Lender where necessary),
for application to the Obligations (whether due or not due in such
order and manner as set forth herein), and, until so delivered, the
same shall be held in trust by such Lender as property of the Agent
on behalf of all of the Lenders. In the event of the failure of any
Lender to make any such endorsement or assignment, the Agent on
behalf of all of the Lenders, or any of its officers or employees on
behalf of the Agent on behalf of all of the Lenders, is hereby
irrevocably authorized in its own name or in the name of the Lenders
to make the same, and is hereby appointed each of the Lender's
attorney-in-fact for those purposes, that appointment being coupled
with an interest and irrevocable.
12.5 DISTRIBUTIONS, ETC. In the event of any distribution, division or
application, partial or complete, voluntary or involuntary, by
operation of law or otherwise, of all or any part of the assets of
the Company or the proceeds thereof to creditors of the Company or
to any indebtedness, liabilities and obligations of the Company,
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or upon any liquidation, dissolution or other winding up of the
Company's business, or in the event of any sale (singly or in the
aggregate) of all or any substantial part of the assets of the
Company, or in the event of any receivership, insolvency or
bankruptcy proceeding, or assignment for the benefit of creditors,
or any proceeding by or against the Company for any relief under any
bankruptcy or insolvency law or other laws relating to the relief of
debtors, readjustment of indebtedness, reorganization, compositions
or extensions, then and in any such event any payment or
distribution of any kind or character, either in cash, securities or
other property, whether or not on account of the Collateral, which
shall be payable or deliverable upon or with respect to all or any
part of the Obligations shall be paid or delivered directly to the
Agent for application to the Obligations (whether due or not due in
order and manner as set forth herein) until the Obligations shall
have been fully paid and satisfied. The Lenders hereby irrevocably
authorize and empower the Agent to demand, sue for, collect and
receive every such payment or distribution and give acquittance
therefor and to file claims and take such other proceedings in the
Agent's own name or in the name of the Lenders or otherwise, as the
Lender may deem necessary or advisable to carry out the provisions
of this Section. The Lenders hereby agree to execute and deliver to
the Agent such limited powers of attorney, assignments, endorsements
or other instruments as may be requested by Agent in order to enable
the Agent to enforce any and all claims upon or with respect to the
Obligations and/or the Collateral, and to collect and receive any
and all payments or distributions which may be payable or
deliverable at any time upon or with respect to the Obligations
and/or the Collateral.
12.6 BENEFIT. The provisions of this Section 12 are solely for the
benefit of the Lenders, and may at any time or times be changed by
the Lenders pursuant to Section 16.4, below, as they may elect
without necessity of notice to or consent or approval by the Company
or any other Person (other than the Lenders pursuant to Section
16.4, below); and the Company, or other Person shall not have any
right to rely on or enforce any of the provisions hereof.
13. REPRESENTATIONS AND WARRANTIES TO SURVIVE. All representations, warranties,
covenants and agreements made by the Company herein and in the other Loan
Documents will survive the execution and delivery of this Credit Agreement,
the Security Documents and the issuance of the Notes.
14. ENVIRONMENTAL INDEMNIFICATION. The Company assumes any liability or
obligation of, or claims asserted against the Agent or any of the Lenders
for loss, damage, fines, penalties, claims or duty to clean-up or dispose
of wastes or materials on or relating to any of its assets, real or
personal, owned or leased, regardless of any inspections of such assets
made by the Agent or the Lenders prior to the consummation of this
transaction or as a result of any conveyance of title to the Agent or the
Lenders by foreclosure, deed in lieu of foreclosure, or otherwise. The
Company agrees to remain fully liable and will indemnify and hold harmless
Agent and the Lenders from any costs, expenses, clean-up costs, waste
disposal costs, litigation costs, fines, penalties, including without
limitation those costs, expenses, penalties and fines within the meaning of
CERCLA, and other
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related liabilities. The provisions of this Section will survive any
termination of this Credit Agreement.
15. THE AGENT.
15.1 AUTHORIZATION AND ACTION. Each Lender hereby appoints and
irrevocably authorizes the Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Credit
Agreement and the other Loan Documents as are delegated to the Agent
by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto. Without limitation of the foregoing,
each Lender hereby expressly authorizes the Agent to execute,
deliver and perform its obligations hereunder and under each of the
Loan Documents to which the Agent is a party, and to exercise
hereunder or thereunder all rights, powers and remedies that the
Agent may have hereunder or thereunder. Each Lender agrees that any
action taken by the Agent in accordance with the provisions of this
Credit Agreement or the Loan Documents, and the exercise by the
Agent of the powers set forth herein or therein, together with such
other powers as are reasonably incidental thereto, shall be
authorized and binding upon all Lenders. As to any matters not
expressly provided for hereunder or by the Loan Documents
(including, without limitation, enforcement or collection of the
Obligations), the Agent will not be required to exercise any
discretion or take any action, but will be required to act or to
refrain from acting (and will be fully protected in so acting or
refraining from acting) upon the instructions of the Lenders, and
such instructions will be binding upon all the Lenders. The duties
of the Agent will be mechanical and administrative in nature and the
Agent will have no fiduciary relationship in respect of any Lender.
If the Agent shall request instructions from any Lenders with
respect to any act or failure to act in connection with this Credit
Agreement, the Credit Facilities or any of the Loan Documents, the
Agent shall be entitled to refrain from such act or taking such
action unless and until the Agent has received instructions and the
Agent will have no liability to any Person or Lender by reason of so
refraining. The Agent will not be required to take any action which
exposes the Agent to personal liability or is contrary to this
Credit Agreement, any Security Document or applicable law.
15.2 AGENT'S RELIANCE, ETC. Neither the Agent, any Affiliate of the
Agent, nor any of their respective directors, officers, agents,
employees, attorneys or consultants will be liable to any Lender for
any action taken or omitted to be taken by it or them under or in
connection with this Credit Agreement, any of the Obligations, any
of the Collateral or any Loan Document, except for its or their own
gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Agent: (a) may consult with legal
counsel (including counsel for the Company), independent public
accountants and other experts selected by it and will not be liable
for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts;
(b) makes no warranty or representation to any Lender and will not
be responsible to any Lender for any statements, warranties or
representations made in or in
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connection with this Credit Agreement, the Notes or any Loan
Document; (c) will not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or
conditions of this Credit Agreement, the Obligations or any Loan
Document on the part of the Company or as to the existence or
possible existence of any Potential Default, Default or Event of
Default or to inspect the property (including the books and records)
of the Company; (d) will not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, the Obligations or
any Loan Document or any other instrument or document furnished
pursuant thereto; (e) will have no obligation to any Person to
assure that the Collateral exists or is owned by the Company or is
cared for, protected or insured or has been encumbered or that the
liens granted to Agent pursuant to the Loan Documents have been
created, perfected, protected or enforced or are entitled to any
particular priority or to exercise at all or in any particular
manner or under any duty of care any right, authority or power in
respect of the Collateral; and (f) will incur no liability under or
in respect of this Credit Agreement, the Obligations or any Loan
Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telephone, telegram, cable,
telecopy or telex) believed by it to be genuine and signed or sent
by the proper party or parties. The Agent will not be liable for any
apportionment or distribution of payments made by it in good faith
pursuant to this Credit Agreement, and if any such apportionment or
distribution is subsequently determined to have been made in error
the sole recourse of any Person to whom payment was due, but not
made, shall be to recover from the recipients of such payments any
payment in excess of the amount to which they are determined to have
been entitled.
15.3 THE AGENT AND ITS AFFILIATES. With respect to its Commitments, the
Advances made or Letters of Credit issued by it, the Notes issued to
it, and the Collateral, the Agent will have the same rights and
powers under the Loan Documents as any other Lender and may exercise
the same as though it were not the Agent; and the term "Lender" or
"Lenders" will, unless otherwise expressly indicated, include the
Agent in its individual capacity. The Agent and its Affiliates may
accept deposits from, lend money to, act as trustee under indentures
of, and generally engage in any kind of business with the Company or
the Company's Affiliates and any Person who may do business with or
own securities of the Company or the Company's Affiliates, all as if
it were not the Agent and without any duty to account therefor to
the Lenders.
15.4 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other
Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into
this Credit Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Agent or any other
Lender and based on such documents and information as it will deem
appropriate at the time, continue to make its own credit decisions
in taking or not taking action under or otherwise relating to this
Credit Agreement, the
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Obligations, the Collateral and the Security Documents; and the
Agent will not have any duty or responsibility at any time to
provide any Lender with any credit or other information with respect
thereto.
15.5 INDEMNIFICATION. The Lenders agree to indemnify the Agent (to the
extent not reimbursed by the Company), ratably according to their
respective Commitments, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against the Agent
in any way relating to or arising out of this Credit Agreement, the
Notes, the Letters of Credit, the Obligations or any of the Loan
Documents or any action taken or omitted by the Agent under this
Credit Agreement, the Notes, the Letters of Credit, the Obligations
or any of the Loan Documents, provided that no Lender will be liable
for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees
to reimburse the Agent promptly upon demand for its ratable share of
any out-of-pocket expenses incurred by the Agent in connection with
the preparation, review, execution, delivery, administration,
modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Credit Agreement,
the Notes, the Letters of Credit, the Obligations or any of the Loan
Documents, or any of them, to the extent that the Agent is not
reimbursed for such expenses by the Company. The provisions of this
Section will survive the termination of this Credit Agreement.
15.6 SUCCESSOR AGENT. The Agent may resign at any time as Agent under
this Credit Agreement, the Notes or the Loan Documents by giving
written notice thereof to the Lenders and the Company. Upon any such
resignation, the Lenders will appoint a successor Agent, which will
be a commercial bank organized under the laws of the United States
of America or of any State thereof and having a combined capital and
surplus of at least $150,000,000. So long as no Event of Default has
occurred, the Company shall have the right to approve any successor
Agent, which consent will not be unreasonably withheld or delayed.
Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent will thereupon succeed to and
become vested with all the rights, powers, privileges and duties of
the retiring Agent, and the retiring Agent will be discharged from
its duties and obligations under this Credit Agreement; provided,
however, that the successor Agent will not be considered as a Lender
for purposes of this Credit Agreement. After any retiring Agent's
resignation, the provisions of this Section 15 will inure to its
benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Credit Agreement. If the other Lenders
request the Agent to resign, then, prior to such resignation, the
other Lenders shall cause the Agent to be paid all amounts owed to
Agent hereunder, including, without limitation, the Agent's Ratable
Portion of all outstanding Advances and other Obligations,
replacement Letters of Credit shall be substituted for any Letters
of Credit issued by the Agent and Letters of Credit outstanding
pursuant to
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this Credit Agreement shall be returned to Agent without demand for
payment by the beneficiaries thereof.
15.7 RELATIONS AMONG LENDERS.
15.7.1 Except as contemplated under this Credit Agreement, no
Lender shall make any loan, advance or other financial
accommodation to the Company without the prior written
consent of all the Lenders except for corporate credit
cards issued by any of the Lenders.
15.7.2 Each Lender agrees that it will not take or institute
any actions or proceedings, against the Company under
this Credit Agreement or with respect to any Collateral,
without the prior written consent of all the Lenders.
15.8 BENEFIT. The provisions of this Section 15 are solely for the
benefit of the Agent and the Lenders, and may at any time or times
be changed by the Lenders as they may elect without necessity of
notice to or consent or approval by the Company or other Person
(other than the Lenders pursuant to Section 16.4, below); and the
Company or other Person shall not have any right to rely on or
enforce any of the provisions hereof. In performing its actions and
duties under this Credit Agreement the Agent acts solely as Agent of
the Lenders and does not assume or have any obligation toward or
agency relationship with or for the Company.
16. GENERAL.
16.1 WAIVER. No delay or omission on the part of the Agent or any Lender
to exercise any right or power arising from any Event of Default
will impair any such right or power or be considered a waiver of any
such right or power or a waiver of any such Event of Default or any
acquiescence therein nor will the action or nonaction of the Agent
or any Lender in case of such Event of Default impair any right or
power arising as a result thereof or affect any subsequent default
or any other default of the same or a different nature. No
disbursement of Advances, issuance of Letters of Credit or Standby
Letters of Credit or disbursement under Letters of Credit or Standby
Letters of Credit hereunder will constitute a waiver of any of the
conditions to the Lenders' obligation to make further disbursements;
nor, in the event that the Company is unable to satisfy any such
condition, will any such disbursement have the effect of precluding
the Lenders from thereafter declaring such inability to be a Default
or an Event of Default. No modification or waiver of any provision
of this Credit Agreement or any of the Loan Documents, nor consent
to any departure by the Company therefrom, will be established by
conduct, custom or course of dealing; and no modification, waiver or
consent will in any event be effective unless the same is in writing
and specifically refers to this Credit Agreement, and then such
waiver or consent will be effective only in the specific instance
and for the purpose for which given. No notice to or demand on the
Company in any case will entitle the Company to any other or further
notice or demand in the same, similar or other circumstance. Unless
otherwise
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agreed in writing by all the Lenders pursuant to Section 16.4
hereof, the liability of the Company will not be affected by any
surrender, exchange, acceptance, or release by the Agent or any
Lender of any party or other person or any other guarantee or any
security held by it for any of the Obligations or by the Agent's or
any Lender's failure to take any steps to perfect or maintain its
lien or security interest in or to preserve any of its rights to,
any guarantee, security or other collateral for any of the
Obligations, by any delay or omission in exercising any right,
remedy or power with respect to any of the Obligations or any
guarantee or collateral therefor, or by any irregularity,
unenforceability or invalidity of any of the Obligations or any
security or guarantee therefor. Subject to Section 16.4 hereof, the
Lenders at any time and from time to time, and without impairing,
releasing, discharging or modifying the liabilities of the Company
hereunder, may (a) without the consent of or notice to the Company,
change the manner, amount, place or terms of payment or performance
of or interest rates on, or change or extend the time of payment of,
or other terms relating to, any of the Obligations, (b) renew,
substitute, modify, amend or alter, or grant consents or waivers
relating to, any of the Obligations without the consent of or notice
to the Company, (c) renew, substitute, modify, amend or alter, or
grant consents or waivers relating to, any guarantee or any security
for any guarantee, (d) apply any and all payments received by a
Lender by whomever paid or however realized, including any proceeds
of any Collateral, to any of the Obligations in such order, manner
and amount as such Lender may determine in its sole discretion, (e)
deal with any Person in respect of the Obligations in such manner as
such Lender deems appropriate in its sole discretion and/or (f)
substitute any security or guarantee. Irrespective of the taking or
refraining from the taking of any such action, the obligations of
the Company shall remain in full force and effect. The Lenders in
their sole discretion may determine the reasonableness of the period
which may elapse prior to the making of demand for any payment upon
the Company and need not pursue any remedy or remedies against any
particular Company, any other Person or any Collateral before having
recourse against the Company hereunder.
16.2 NOTICES. Any notice, request, demand, direction or other
communication (for purposes of this Section 16.2 only, a "Notice")
to be given to or made upon any party hereto under any provision of
this Agreement shall be given or made by telephone or in writing
(which includes by means of electronic transmission (i.e., "e-mail")
or facsimile transmission or by setting forth such Notice on a site
on the World Wide Web (a "Website Posting") if Notice of such
Website Posting (including the information necessary to access such
site) has previously been delivered to the applicable parties hereto
by another means set forth in this Section 16.2) in accordance with
this Section 16.2. Any such Notice must be delivered to the
applicable parties hereto at the addresses and numbers set forth by
their respective names below or in accordance with any subsequent
unrevoked Notice from any such party that is given in accordance
with this Section 16.2. Any Notice shall be effective:
a. In the case of hand-delivery, when delivered;
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b. If given by mail, four days after such Notice is deposited
with the United States Postal Service, with first-class
postage prepaid, return receipt requested;
c. In the case of a telephonic Notice, when a party is contacted
by telephone, if delivery of such telephonic Notice is
confirmed no later than the next Business Day by hand
delivery, a facsimile or electronic transmission, a Website
Posting or an overnight courier delivery of a confirmatory
Notice (received at or before noon on such next Business Day);
d. In the case of a facsimile transmission, when sent to the
applicable party's facsimile machine's telephone number, if
the party sending such Notice receives confirmation of the
delivery thereof from its own facsimile machine;
e. In the case of electronic transmission, when actually
received;
f. In the case of a Website Posting, upon delivery of a Notice of
such posting (including the information necessary to access
such site) by another means set forth in this Section 16.2;
and
g. If given by any other means (including by overnight courier),
when actually received.
Notwithstanding the above, notices and communications to the Agent
pursuant to Sections 2 or 15, above, will not be effective until
received by the Agent. Any Lender giving a Notice to the Company or
any Subsidiary thereof shall concurrently send a copy thereof to the
Agent, and the Agent shall promptly notify the other Lenders of its
receipt of such Notice.
16.3 SUCCESSORS AND ASSIGNS.
16.3.1 This Credit Agreement will be binding upon and inure to
the benefit of the Company and the Lenders and their
respective successors and assigns, provided, however,
that the Company may not assign this Credit Agreement in
whole or in part without the prior written consent of
the Agent.
16.3.2 Each Lender may, with the prior consent of the Company,
the Agent and the other Lender(s) (such consent not to
be unreasonably withheld but in the case of the Company
it will be deemed reasonable for the Company to withhold
its consent if as a result of any assignment the total
number of Lenders would be greater than 6), assign to
one or more banks or other entities all or a portion of
its rights and obligations under this Credit Agreement
(including, without limitation, all or a portion of its
Commitments, the Advances owing to it and the Note or
Notes held by it); provided, however, that no consent of
the Company will be
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required (i) if an Event of Default exists and is
continuing, or (ii) in the case of an assignment by a
Lender to an Affiliate of such Lender; and provided,
further, that (i) each such assignment will be of a
uniform, and not a varying, percentage of all rights and
obligations under and in respect of all of the Credit
Facilities, (ii) except in the case of an assignment of
all of a Lender's rights and obligations under this
Credit Agreement, (A) the amount of the Revolving
Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to
such assignment) will in no event be less than
$3,000,000 and will be an integral multiple of $500,000
and (B) after giving effect to each such assignment, the
amount of the Revolving Commitment of the assigning
Lender will in no event be less than $1,000,000, and
(iii) the parties to each such assignment will execute
and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance,
together with any Note or Notes subject to such
assignment and, for the sole account of the Agent, a
processing and recordation fee of $3,500. Upon such
execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment
and Acceptance, (x) the assignee thereunder will be a
party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder (including but not
limited to all participation obligations with respect to
Swingline Loans and Letter of Credit Obligations) and
(y) the Lender assignor thereunder will, to the extent
that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its
obligations under this Credit Agreement (and, in the
case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and
obligations under this Credit Agreement, such Lender
will cease to be a party hereto).
16.3.3 The Agent will maintain at its address referred to
herein for notices a copy of each Assignment and
Acceptance delivered to and accepted by it and the
Register. The entries in the Register will be conclusive
and binding for all purposes, absent manifest error, and
the Company, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Credit
Agreement. The Register will be available for inspection
by the Company or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
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16.3.4 Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee,
together with any Note or Notes subject to such
assignment, the Agent will, if such Assignment and
Acceptance has been completed and is in substantially
the form delivered to the Lenders in connection with the
Closing, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register
and (iii) give prompt notice thereof to the Company.
Within five (5) Business Days after its receipt of such
notice, the Company, at its own expense, will execute
and deliver to the Agent in exchange for the surrendered
Note or Notes a new Note or Notes to the order of such
assignee in an amount equal to the applicable Commitment
assumed by it pursuant to such Assignment and Acceptance
and, if the assigning Lender has retained a Commitment
hereunder, a new Note or Notes to the order of the
assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Note or Notes will be
in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, and
will be dated the effective date of such Assignment and
Acceptance.
16.3.5 Each Lender may sell participations, in minimum amounts
of $3,000,000 each, to one or more banks or other
entities in all or a portion of its rights and
obligations under this Credit Agreement (including,
without limitation, all or a portion of its Commitments
and the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) such Lender's
obligations under this Credit Agreement (including,
without limitation, its Commitments to the Company
hereunder and its participation obligations to the Agent
as to Letter of Credit Obligations) shall remain
unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall
remain the holder of any such Notes for all purposes of
this Agreement, (iv) the Company, the Agent and the
other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights
and obligations under this Credit Agreement, (v) no
participant under any such participation shall have any
right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any
departure by any party therefrom, and (vi) the assigning
Lender shall pay a $3,500 service charge to the Agent.
Notwithstanding the foregoing, the Company agrees that
each such participant shall, to the extent provided in
its participation, be entitled to the rights and
benefits under Sections 2.13, 2.14, 2.15 and 2.17, and,
subject to Section 12, all rights of setoff under this
Credit Agreement with respect to its participating
interest, in each case, as if such participant were a
Lender.
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16.3.6 Any Lender may, in connection with any assignment or
participation or proposed assignment or proposed
participation pursuant to this Section 16, disclose to
the assignee or participant or proposed assignee or
proposed participant, any information relating to the
Company furnished to such Lender by or on behalf of the
Company.
16.4 MODIFICATIONS. No modification, amendment or waiver of any provision
of this Credit Agreement or any of the Loan Documents nor consent to
any departure therefrom by the Company, nor any release of any
Collateral, will in any event be effective unless the same is in
writing signed by the Required Lenders and the Company and
specifically refers to this Credit Agreement, and then such waiver
or consent will be effective only in the specific instance and for
the purpose for which given, provided, however, that no amendment,
waiver or consent will be effective without the signed written
consent of all the Lenders, to (a) change the percentage amount of
the Commitments or of the aggregate unpaid principal amount of the
Notes or the number of Lenders which will be required for the
Lenders or any of them to take any action hereunder, (b) waive any
Event of Default under Section 11.1 hereof; (c) amend Sections 12 or
15 or this Section 16.4; (d) increase any Commitment of any Lender;
(e) reduce any fees payable to any Lender or the rate of interest on
any Note held by any Lender; (f) postpone any date fixed for any
payment of fees, principal of, or interest on, any of the Notes; (g)
except for sales of assets expressly permitted by this Credit
Agreement, release any Collateral consisting of capital stock or
other ownership interests of the Company or any of its Subsidiaries
or substantially all of the assets of the Company or any of its
Subsidiaries, or any other security for the Obligations; or (h)
change the definition of Required Lenders; and provided further,
however, that no amendment, waiver or consent will, unless in
writing and signed by the Agent in addition to all of the Lenders,
affect the rights or duties of the Agent under this Credit
Agreement, the Letters of Credit, the Obligations or any Loan
Document. No notice to or demand on the Company in any case will
entitle the Company to any other or further notice or demand in the
same, similar or other circumstance. Notwithstanding anything to the
contrary contained herein: (a) the Agent may in its sole discretion
and without the consent of the Lenders change the fees or expenses
for audits or legal services that the Company is required to pay to
the Agent; provided, however, that any increase in such fees shall
not be effective unless the same is in writing and signed by the
Company; and (b) as long as the fees provided herein are at the
customary level as normally charged by the Agent, such fees are not
subject to this Section 16.4.
16.5 ILLEGALITY. If fulfillment of any provision hereof or any
transaction related hereto or of any provision of any of the Loan
Documents, at the time performance of such provision is due,
involves transcending the limit of validity prescribed by law, then
ipso facto, the obligation to be fulfilled will be reduced to the
limit of such validity; and if any clause or provisions herein
contained other than the provisions hereof pertaining to repayment
of the Obligations operates or would prospectively operate to
invalidate this Credit Agreement in whole or in part, then
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such clause or provision only will be void, as though not herein
contained, and the remainder of this Credit Agreement will remain
operative and in full force and effect; and if such provision
pertains to repayment of the Obligations, then, at the option of the
Lenders, all of the Obligations will become immediately due and
payable.
16.6 GENDER, ETC. Whenever used herein, the singular number will include
the plural, the plural the singular and the use of the masculine,
feminine or neuter gender will include all genders.
16.7 HEADINGS. The headings in this Credit Agreement are for convenience
only and will not limit or otherwise affect any of the terms hereof.
16.8 PURPOSE. The Company hereby ratifies and confirms all of its
obligations, liabilities and indebtedness under the provisions of
the Credit Agreement as amended and restated by this Credit
Agreement. The purpose of this Credit Agreement is to amend and
restate the Credit Agreement. The Agent, Lenders and the Company
agree that nothing contained herein shall be construed to
extinguish, release or discharge or constitute a novation of, or an
agreement to extinguish, (a) the continuing Obligations under the
provisions of the Credit Agreement as amended and restated by this
Credit Agreement, (b) any of the Loan Documents, (c) the security
interests and liens created by any of the Security Documents, and
(d) any of the Obligations (as defined in the Credit Agreement as
amended and restated by this Credit Agreement); all of the foregoing
described in (a), (b), (c) and (d) above to continue and remain in
full force and effect.
16.9 RATIFICATION. Agent, Lenders and the Company agree that any and all
of the terms and provisions of the Notes, the Security Documents,
and any and all other documents, instruments or agreements
evidencing, securing or pertaining to the Obligations evidenced by
the Notes and Credit Agreement shall, except as modified and
amended, hereby remain in full force and effect as to the
Collateral. The Company hereby ratifies and extends the liens and
security interests of any and all security for the indebtedness
evidenced by the Security Documents, including, without limitation,
the Mortgages until the Obligations evidenced by the Credit
Agreement have been paid in full and agrees that such modification
and renewal of the Obligations shall in no manner affect or impair
the Security Documents and that the lien shall not in any manner be
waived; the purpose of this Agreement being to modify and renew the
Obligations evidenced by the Credit Agreement and the Loan Documents
and to carry forward all liens securing the payment and performance
of the Obligations, which are acknowledged by the Company to be
valid and subsisting.
16.10 CLAIMS AND RELEASE OF CLAIMS. The Company and its Subsidiaries each
represents and warrants that neither the Company nor any such
Subsidiary has any claims, counterclaims, setoffs, actions or causes
of actions, damages or liabilities of any kind or nature whatsoever
whether at law or in equity, in contract or in tort, whether now
accrued or hereafter maturing (collectively, "Claims" against the
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Lenders or the Agent, their respective direct or indirect parent
corporations or any direct or indirect affiliates of such parent
corporation, or any of the foregoing's respective directors,
officers, employees, agents, attorneys and legal representatives, or
the successors or assigns of any of them (collectively, "Lender
Parties" that directly or indirectly arise out of, are based upon or
are in any manner connected with any Prior Related Event. As an
inducement to the Lenders and the Agent to enter into this Credit
Agreement, the Company and each of its Subsidiaries, jointly and
severally, on behalf of itself and all of its successors and
assigns, hereby knowingly and voluntarily releases and discharges
all Lender Parties from any and all Claims, whether known or
unknown, that directly or indirectly arise out of, are based upon or
are in any manner connected with any Prior Related Event. As used
herein, the term "Prior Related Event" means any transaction, event,
circumstance, action, failure to act, occurrence of any sort or
type, whether known or unknown, which occurred, existed, was taken,
permitted or begun at any time prior to the Closing Date or
occurred, existed, was taken, was permitted or begun in accordance
with, pursuant to or by virtue of any of the terms of the Credit
Agreement or any documents executed in connection with the Credit
Agreement or which was related to or connected in any manner,
directly or indirectly to the Notes, Letter of Credit or Standby
Letter of Credit.
16.11 EXECUTION IN COUNTERPARTS. This Credit Agreement may be executed in
any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed will be deemed
to be an original and all of which taken together will constitute
one and the same agreement.
16.12 REMEDIES CUMULATIVE. No single or partial exercise of any right or
remedy by the Lenders will preclude any other or further exercise
thereof or the exercise of any other right or remedy. All remedies
hereunder and in any instrument or document evidencing, securing,
guaranteeing or relating to any Loan or now or hereafter existing at
law or in equity or by statute are cumulative and none of them will
be exclusive of the others or any other remedy. All such rights and
remedies may be exercised separately, successively, concurrently,
independently or cumulatively from time to time and as often and in
such order as the Lenders may deem appropriate.
16.13 COSTS, EXPENSES AND LEGAL FEES. The Company will be solely
responsible for any fees and expenses for appraisals, surveys, title
insurance, lien searches, environmental reports, recording fees,
documentary taxes and similar items. The Company agrees to reimburse
on demand the Agent and the Lenders for all reasonable out-of-pocket
costs and expenses, including, without limitation, due diligence and
audit expenses and reasonable fees and expenses of auditors,
attorneys (which attorneys may be the Agent's or any Lender's
employees and including, without limitation, the reasonable fees and
disbursements of Frost Brown Todd LLC, special counsel for the
Agent), and other advisors, expended or incurred in the syndication
of the Credit Facilities; the preparation, review, negotiation,
execution and delivery, and filing and recording as necessary, of
this Credit Agreement and the other amended Loan Documents; in
amending,
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supplementing, waiving or enforcing provisions of this Credit
Agreement and the other amended Loan Documents; in collecting any
sum which is not paid when due under this Credit Agreement and the
other amended Loan Documents; and/or in the protection, perfection,
preservation and enforcement of any and all rights of the Agent and
the Lenders in connection with this Credit Agreement and any of the
other amended Loan Documents.
16.14 INDEMNITY. The Company will indemnify, defend and hold harmless the
Agent and Lenders, their respective directors, officers, counsel and
employees, from and against all claims, demands, liabilities,
judgments, losses, damages, costs and expenses, joint or several
(including all accounting fees and attorneys' fees reasonably
incurred), that any such indemnified party may incur arising under
or by reason of the Company's failure to observe, perform or
discharge the Company's obligations, covenants, representations and
duties under this Credit Agreement, any of the Credit Facilities,
Loan Documents or Collateral, except the willful misconduct or gross
negligence of such indemnified party. Without limiting the
generality of the foregoing, the Company agrees that if, after
receipt by the Agent or any Lender of any payment of all or any part
of the Obligations, demand is made at any time upon the Agent and/or
any Lender for the repayment or recovery of any amount or amounts
received by it in payment or on account of the Obligations and the
Agent and/or Lender repays all or any part of such amount or amounts
by reason of any judgment, decree or order of any court or
administrative body, or by reason of any settlement or compromise of
any such demand, this Credit Agreement will continue in full force
and effect and the Company will be liable, and will indemnify,
defend and hold harmless the Agent and Lenders for the amount or
amounts so repaid. The provisions of this Section will be and remain
effective notwithstanding any contrary action which may have been
taken by the Company in reliance upon such payment, and any such
contrary action so taken will be without prejudice to the Agent's
and any Lender's rights under this Credit Agreement and will be
deemed to have been conditioned upon such payment having become
final and irrevocable. The provisions of this Section will survive
the termination of this Credit Agreement.
16.15 CONTINUING AGREEMENT. This Credit Agreement is and is intended to be
a continuing agreement and will remain in full force and effect
until the Obligations are finally and irrevocably paid in full and
the Credit Facilities, Commitments, Letters of Credit and Standby
Letters of Credit are terminated.
16.16 COMPLETE AGREEMENT. This Credit Agreement, together with the
exhibits and schedules hereto, the other Loan Documents as amended,
the Security Documents, the Bond Documents and related documents
delivered on the Closing Date constitutes the entire agreement of
the parties hereto regarding the subject matter hereof and thereof
and supersedes any prior or written agreements or understandings
regarding such subject matter.
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16.17 NO THIRD PARTY BENEFICIARIES. Nothing express or implied herein is
intended or will be construed to confer upon or give any Person,
other than the parties hereto, any right to remedy hereunder or by
reason hereof.
16.18 NO PARTNERSHIP OR JOINT VENTURE. Nothing contained herein or in any
of the agreements or transactions contemplated hereby is intended or
will be constructed to create any relationship other than as
expressly stated herein or therein and will not create any joint
venture, partnership or other relationship.
16.19 GOVERNING LAW AND JURISDICTION; WAIVER OF JURY TRIAL. THIS CREDIT
AGREEMENT WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF OHIO. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS CREDIT
AGREEMENT OR THE OBLIGATIONS MAY BE BROUGHT IN ANY COURT(S) OF THE
STATE OF OHIO, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF OHIO, AND THE COMPANY HEREBY ACCEPTS, GENERALLY,
IRREVOCABLY AND UNCONDITIONALLY, THE JURISDICTION OF ANY SUCH COURT
AND CONSENTS THAT ANY SERVICE OF PROCESS MAY BE MADE BY CERTIFIED
MAIL DIRECTED TO THE COMPANY AT THE ADDRESS SET FORTH HEREIN FOR
NOTICES AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED FIVE (5)
BUSINESS DAYS AFTER THE SAME HAS BEEN DEPOSITED IN U.S. MAILS,
POSTAGE PREPAID. THE COMPANY WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED
HEREUNDER IN ANY SUCH JURISDICTION. NOTHING HEREIN CONTAINED SHALL
AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS,
ENFORCE ANY JUDGMENT OR OTHERWISE PROCEED AGAINST THE COMPANY, ANY
SECURITY OR ANY PROPERTY OF THE COMPANY IN ANY OTHER JURISDICTION.
THE COMPANY AND THE LENDERS EACH UNCONDITIONALLY AND IRREVOCABLY
WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
RELATING TO THIS CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY
TRANSACTION CONTEMPLATED IN ANY OF SUCH AGREEMENTS.
[signature page follows]
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Signed at Cincinnati, Ohio, effective as of July 12, 2002.
MULTI-COLOR CORPORATION
Address for Notices:
Multi-Color Corporation
425 Walnut Street, Suite 1300 By: /s/ Dawn H. Bertsche
Cincinnati, Ohio 45202 --------------------------------
Attn: Vice President - Finance Print Name: Dawn H. Bertsche
------------------------
Title: Vice President - Finance
-----------------------------
LASER GRAPHIC SYSTEMS,
INCORPORATED
Address for Notices:
Laser Graphic Systems, Incorporated
425 Walnut Street, Suite 1300 By: /s/ Dawn H. Bertsche
Cincinnati, Ohio 45202 --------------------------------
Attn: Vice President - Finance Print Name: Dawn H. Bertsche
------------------------
Title: Secretary
-----------------------------
MCC-BATAVIA, LLC
Address for Notices:
MCC-Batavia, LLC
425 Walnut Street, Suite 1300 By: /s/ Dawn H. Bertsche
Cincinnati, Ohio 45202 --------------------------------
Attn: Vice President - Finance Print Name: Dawn H. Bertsche
------------------------
Title: Secretary
-----------------------------
MCC-UNIFLEX, LLC
Address for Notices:
MCC-Uniflex, LLC
425 Walnut Street, Suite 1300 By: /s/ Dawn H. Bertsche
Cincinnati, Ohio 45202 --------------------------------
Attn: Vice President - Finance Print Name: Dawn H. Bertsche
------------------------
Title: Secretary
-----------------------------
MCC-TROY, LLC
Address for Notices:
MCC-Troy, LLC
425 Walnut Street, Suite 1300 By: /s/ Dawn H. Bertsche
Cincinnati, Ohio 45202 --------------------------------
Attn: Vice President - Finance Print Name: /s/ Dawn H. Bertsche
------------------------
Title: Secretary
-----------------------------
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MCC-QUICK PAK, LLC
Address for Notices:
MCC-Quick Pak, LLC
425 Walnut Street, Suite 1300 By: /s/ Dawn H. Bertsche
Cincinnati, Ohio 45202 --------------------------------
Attn: Vice President - Finance Print Name: Dawn H. Bertsche
------------------------
Title: Secretary
-----------------------------
PNC BANK, NATIONAL
ASSOCIATION, on its own behalf as a
Address for Notices: Lender and as Agent
PNC Bank, National Association
201 East Fifth Street By: /s/ Thomas M. Groneman
Cincinnati, Ohio 45202 --------------------------------
Attn: Corporate Banking Print Name: Thomas M. Groneman
------------------------
Title: Senior Vice President
-----------------------------
KEYBANK NATIONAL ASSOCIATION,
Address for Notices: as a Lender
KeyBank National Association
525 Vine Street, 6th Floor By: /s/ Louis A. Fender
Cincinnati, Ohio 45202 --------------------------------
Attn: Corporate Banking Print Name: Louis A. Fender
------------------------
Title: Senior Vice President
-----------------------------
LASALLE BANK NATIONAL
Address for Notices: ASSOCIATION, as a Lender
LaSalle Bank N.A.
312 Walnut Street, Suite 2450 By: /s/ Shawna Elkus
Cincinnati, Ohio 45202 --------------------------------
Attn: Corporate Banking Print Name: Shawna Elkus
------------------------
Title: Officer
-----------------------------
HARRIS TRUST AND SAVINGS BANK,
Address for Notices: as a Lender
Harris Trust and Savings Bank
111 West Monroe Street By: /s/ Thad D. Rasche
Chicago, Illinois 60690 --------------------------------
Attn: Corporate Banking Print Name: Thad D. Rasche
------------------------
Title: Vice President
-----------------------------
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