1
Exhibit 10.33
FOURTH AMENDED AND RESTATED
CREDIT, REIMBURSEMENT AND SECURITY AGREEMENT
ORIGINAL DATED AS OF JULY 15, 1994
RESTATED AS OF JUNE 6, 2000
AMONG
MULTI-COLOR CORPORATION
THE COMPANY,
------------
THE SUBSIDIARIES OF THE COMPANY
AND
THE LENDERS IDENTIFIED HEREIN
AND
PNC BANK, NATIONAL ASSOCIATION
THE AGENT
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FOURTH AMENDMENT AND RESTATEMENT
MULTI-COLOR CORPORATION, an Ohio corporation (the "Company"),
MCC-BATAVIA, LLC, an Ohio limited liability company ("MCC-Batavia"),
MCC-UNIFLEX, LLC, an Ohio limited liability company ("MCC-Uniflex"), 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 June 6, 2000 ("Effective Date"):
1. RECITALS.
1.1 On June 22, 1998, the Company, PNC Bank, National Association
(successor by merger to PNC Bank, Ohio, National Association),
certain financial institutions party thereto, and the Agent
entered into a Third Amended and Restated Credit,
Reimbursement and Security Agreement, which was amended by an
Amendment, Consent and Waiver Agreement dated as of April 20,
1999, a Second Amendment to Credit Agreement dated as of May
1, 1999, a Third Amendment to Credit Agreement dated as of
August 13, 1999, a Fourth Amendment to Credit Agreement dated
as of November 17, 1999 and a Fifth Amendment to Credit
Agreement dated as of March 31, 2000 (as amended, the "Third
Restated Credit Agreement").
1.2 The Company has requested that the Lenders amend and restate
the Third Restated Credit Agreement and the Lenders are
willing to do so subject to and in accordance with the terms
of the attached Fourth Amended and Restated Credit,
Reimbursement and Security Agreement (the "Fourth Restated
Credit Agreement").
2. AMENDMENT AND RESTATEMENT. Effective as of the Effective Date, the
Third Restated Credit Agreement will be amended and restated in its
entirety as follows:
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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.......................................................21
1.3 OTHER DEFINITIONAL PROVISIONS..................................................................22
2. CREDIT FACILITIES.......................................................................................22
2.1 REVOLVING CREDIT FACILITY......................................................................22
2.2 NON-REVOLVING CREDIT FACILITY..................................................................23
2.2A SWINGLINE LOANS SUBFACILITY....................................................................24
2.3 MANNER OF BORROWING............................................................................25
2.3.1 REVOLVING BORROWINGS..................................................................25
2.3.2 NON-REVOLVING BORROWINGS..............................................................26
2.3.3 SWINGLINE BORROWINGS..................................................................27
2.4 ADDITIONAL PROVISIONS REGARDING FUNDING........................................................27
2.5 CONVERSIONS AND CONTINUATION OF ADVANCES.......................................................27
2.5.1 OPTIONAL CONVERSION...................................................................27
2.5.2 CONTINUATION..........................................................................28
2.5.3 AUTOMATIC CONVERSION..................................................................29
2.6 PREPAYMENT OF REVOLVING CREDIT FACILITY........................................................29
2.6.1 OPTIONAL PREPAYMENT...................................................................29
2.6.2 MANDATORY PREPAYMENT..................................................................29
2.7 INTEREST ON THE ADVANCES.......................................................................30
2.7.1 INTEREST ON REVOLVING CREDIT LOANS....................................................30
2.7.2 INTEREST ON SWINGLINE LOANS...........................................................30
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2.7.2 INTEREST ON NON-REVOLVING CREDIT LOANS................................................30
2.7.3 NON-REVOLVING CREDIT LOANS PAYMENT DATES..............................................31
2.7.4 INTEREST PAYMENT DATES................................................................31
2.7.5 DEFAULT RATE..........................................................................31
2.8 TERMINATION OR REDUCTION OF COMMITMENTS BY THE COMPANY.........................................31
2.9 RECORDS........................................................................................32
2.10 LETTER OF CREDIT FACILITIES....................................................................32
2.10.1 ISSUANCE OF SCOTTSBURG ALTERNATE LETTER OF CREDIT.....................................32
2.10.2 ISSUANCE OF BOONE ALTERNATE LETTER OF CREDIT..........................................33
2.10.3 ISSUANCE OF 1997 SCOTTSBURG LETTER OF CREDIT..........................................33
2.10.4 ISSUANCE OF MCC-BATAVIA ALTERNATE LETTER OF CREDIT....................................33
2.10.5 REIMBURSEMENT AND OTHER PAYMENTS......................................................34
2.10.6 TRANSFER; REDUCTION; REINSTATEMENT....................................................36
2.10.7 OBLIGATIONS ABSOLUTE..................................................................37
2.10.8 INDEMNIFICATION.......................................................................37
2.10.9 LIABILITY OF AGENT....................................................................38
2.11 STANDBY LETTER OF CREDIT FACILITY..............................................................39
2.11.1 STANDBY LETTER OF CREDIT COMMITMENT...................................................39
2.11.2 TERMS OF STANDBY LETTERS OF CREDIT....................................................40
2.11.3 PROCEDURE FOR STANDBY LETTERS OF CREDIT...............................................40
2.11.4 DRAWING AND REIMBURSEMENT.............................................................40
2.11.5 REIMBURSEMENT OBLIGATION OF COMPANY FOR STANDBY LETTER OF CREDIT DISBURSEMENTS........41
2.11.6 COMPANY'S OBLIGATIONS ABSOLUTE........................................................42
2.11.7 COLLATERAL IN THE EVENT OF DEFAULT....................................................43
2.11.8 LIABILITY AND INDEMNIFICATION OF THE AGENT............................................43
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2.11.9 GENERAL PROVISIONS....................................................................45
2.12 ASSUMPTIONS REGARDING NOTICES..................................................................47
2.12.1 AUTHORIZED EMPLOYEES..................................................................47
2.12.2 NO LIABILITY..........................................................................47
2.12.3 NOTICE IRREVOCABLE....................................................................47
2.13 COMPUTATIONS, FEES, PAYMENTS, ETC..............................................................47
2.13.1 COMPUTATIONS..........................................................................47
2.13.2 FEES..................................................................................48
2.13.3 PAYMENTS..............................................................................50
2.13.4 CHARGE TO ACCOUNTS....................................................................50
2.13.5 FAILURE TO MAKE PAYMENTS BY COMPANY...................................................50
2.14 TAXES..........................................................................................51
2.15 ADDITIONAL COSTS...............................................................................51
2.15.1 TAXES, RESERVE REQUIREMENTS, ETC......................................................51
2.15.2 CAPITAL ADEQUACY......................................................................52
2.15.3 CERTIFICATE OF LENDER.................................................................52
2.16 INABILITY TO DETERMINE RATE; INADEQUACY OF PRICING; ILLEGALITY.................................53
2.16.1 RATE INABILITY; PRICING INADEQUACY....................................................53
2.16.2 ILLEGALITY; TERMINATION OF COMMITMENTS................................................53
2.17 OBLIGATION TO INDEMNIFY........................................................................54
2.17.1 EVENTS................................................................................54
2.17.2 STATEMENT.............................................................................54
2.17.3 SURVIVAL..............................................................................54
2.18 USE OF PROCEEDS................................................................................55
3. LOCK BOX; CASH COLLATERAL ACCOUNT.......................................................................55
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3.1 LOCK BOX.......................................................................................55
3.2 CASH COLLATERAL ACCOUNT........................................................................58
4. BOND REDEMPTION.........................................................................................58
4.1 DEPOSITS TO SINKING FUND ACCOUNT...............................................................58
4.2 MCC-BATAVIA BOND REDEMPTION....................................................................58
5. COLLATERAL..............................................................................................59
6. SECURITY AND SUBROGATION UNDER INDENTURE................................................................59
6.1 SECURITY.......................................................................................59
6.2 PLEDGE OF RIGHTS TO CERTAIN FUNDS AND INVESTMENTS..............................................59
6.3 PLEDGED BONDS..................................................................................60
6.3.1 PLEDGE................................................................................60
6.3.2 PLEDGED BOND PAYMENTS.................................................................60
6.3.3 RELEASE OF PLEDGED BONDS..............................................................60
6.3.4 LIABILITY OF AGENT....................................................................61
6.3.5 REPRESENTATIONS; RIGHTS AND REMEDIES..................................................61
7. CONDITIONS PRECEDENT....................................................................................61
7.1 INITIAL ADVANCES...............................................................................61
7.1.1 LOAN DOCUMENTS........................................................................61
7.1.2 OPINION LETTERS.......................................................................61
7.1.3 RESOLUTIONS...........................................................................62
7.1.4 GOOD STANDING.........................................................................62
7.1.5 DESIGNATION OF AUTHORIZED EMPLOYEES OF COMPANY........................................62
7.1.6 TITLE INSURANCE.......................................................................62
7.1.7 SURVEY................................................................................63
7.1.8 INSURANCE.............................................................................63
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7.1.9 WETLANDS..............................................................................63
7.1.10 APPRAISAL.............................................................................63
7.1.11 ENVIRONMENTAL REQUIREMENTS............................................................63
7.1.12 FULL SYNDICATION......................................................................64
7.1.13 UCC SEARCHES..........................................................................64
7.1.14 CONSENTS..............................................................................64
7.1.15 UNIFLEX ACQUISITION DOCUMENTS.........................................................64
7.1.16 FEES..................................................................................64
7.1.17 DELIVERY OF THE BOND DOCUMENTS AND SECURITY DOCUMENTS.................................64
7.1.18 NO DEFAULT............................................................................64
7.1.19 REPRESENTATIONS AND WARRANTIES........................................................64
7.1.20 CERTIFICATES..........................................................................65
7.1.21 OPINION OF BOND COUNSEL...............................................................65
7.1.22 DOCUMENTATION AND PROCEEDINGS.........................................................65
7.1.23 OTHER DOCUMENTS.......................................................................65
7.1.24 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................................................................................66
8. REPRESENTATIONS AND WARRANTIES..........................................................................66
8.1 ORGANIZATION...................................................................................66
8.2 LATEST FINANCIALS..............................................................................66
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8.3 RECENT ADVERSE CHANGES.........................................................................66
8.4 RECENT ACTIONS.................................................................................66
8.5 TITLE..........................................................................................67
8.6 LITIGATION, ETC................................................................................67
8.7 TAXES..........................................................................................67
8.8 AUTHORITY......................................................................................67
8.9 OTHER DEFAULTS.................................................................................68
8.10 CONFLICTS......................................................................................68
8.11 PATENTS, LICENSES..............................................................................68
8.12 ERISA..........................................................................................68
8.13 ENVIRONMENTAL MATTERS..........................................................................69
8.14 INVESTMENT COMPANY ACT.........................................................................70
8.15 GOVERNMENTAL CONSENTS..........................................................................70
8.16 DISCLOSURE.....................................................................................70
8.17 REGISTERED OFFICE..............................................................................70
8.18 SUBSIDIARIES...................................................................................70
8.19 MARGIN STOCK...................................................................................71
8.20 STATUS OF PLEDGED COLLATERAL...................................................................71
8.21 SENIOR DEBT STATUS.............................................................................71
9. AFFIRMATIVE COVENANTS...................................................................................71
9.1 SINKING FUND...................................................................................71
9.2 BOOKS AND RECORDS; ACCESS......................................................................72
9.3 MONTHLY STATEMENTS.............................................................................72
9.4 QUARTERLY STATEMENTS...........................................................................72
9.5 AUDITS.........................................................................................73
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9.6 ANNUAL STATEMENTS..............................................................................73
9.7 AUDITOR'S LETTERS..............................................................................73
9.8 ANNUAL BUDGETS, FORECASTS AND COMPARISONS......................................................73
9.9 NOTICES OF DEFAULT.............................................................................74
9.10 PAYMENT OF CHARGES.............................................................................74
9.11 EXISTENCE; OPERATIONS..........................................................................74
9.12 INSURANCE......................................................................................74
9.13 COMPLIANCE WITH LAWS...........................................................................75
9.14 ENVIRONMENTAL VIOLATIONS.......................................................................75
9.15 ENVIRONMENTAL AUDIT AND OTHER ENVIRONMENTAL INFORMATION........................................75
9.16 BUSINESS NAMES AND LOCATIONS...................................................................76
9.17 ACCOUNTS.......................................................................................76
9.18 ERISA COMPLIANCE...............................................................................76
9.19 FURTHER ASSURANCES.............................................................................77
9.20 COMPLIANCE WITH AGREEMENTS.....................................................................77
10. NEGATIVE COVENANTS......................................................................................77
10.1 DEBT...........................................................................................77
10.2 LEASES.........................................................................................77
10.3 LIENS..........................................................................................78
10.4 LEVERAGE RATIO.................................................................................78
10.5 FIXED CHARGE COVERAGE RATIO....................................................................78
10.6 TANGIBLE NET WORTH.............................................................................78
10.7 GUARANTEES.....................................................................................78
10.8 CORPORATE CHANGES..............................................................................79
10.9 REDEMPTIONS....................................................................................79
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10.10 DIVIDENDS......................................................................................79
10.11 INVESTMENTS, LOANS AND ADVANCES................................................................79
10.12 MERGER OR SALE OF ASSETS.......................................................................79
10.13 ACQUISITIONS...................................................................................79
10.14 TRANSFER OF COLLATERAL.........................................................................80
10.15 SALE AND LEASEBACK.............................................................................80
10.16 LINE OF BUSINESS...............................................................................80
10.17 WAIVERS........................................................................................80
10.18 PAYMENTS TO SHAREHOLDERS AND AFFILIATES........................................................80
10.19 TRANSACTIONS WITH AFFILIATES...................................................................80
10.20 POST-CLOSING MATTERS...........................................................................80
10.21 BOND DOCUMENTS.................................................................................81
10.22 LIMITATION ON OPTIONAL CALLS...................................................................81
10.23 EXCESS BORROWING...............................................................................81
11. EVENTS OF DEFAULT.......................................................................................81
11.1 PAYMENT........................................................................................81
11.2 BOND DOCUMENTS.................................................................................81
11.3 COVENANTS......................................................................................81
11.4 REPRESENTATIONS AND WARRANTIES.................................................................81
11.5 OBLIGATIONS....................................................................................82
11.6 EXECUTION, ATTACHMENT, ETC.....................................................................82
11.7 LOSS, THEFT OR SUBSTANTIAL DAMAGE TO THE COLLATERAL............................................82
11.8 JUDGMENTS......................................................................................82
11.9 BANKRUPTCY, ETC................................................................................82
11.10 IMPAIRMENT OF SECURITY.........................................................................83
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11.11 OTHER INDEBTEDNESS.............................................................................83
11.12 AMENDMENT......................................................................................83
12. INTERCREDITOR LIEN AND PAYMENT PROVISIONS...............................................................84
12.1 LIEN PRIORITY..................................................................................84
12.2 PARTICIPATION IN LETTERS OF CREDIT.............................................................85
12.3 SHARING OF PAYMENTS, ETC.......................................................................85
12.4 RECEIPT OF PAYMENTS BY LENDERS.................................................................86
12.5 DISTRIBUTIONS, ETC.............................................................................87
12.6 BENEFIT........................................................................................87
13. REPRESENTATIONS AND WARRANTIES TO SURVIVE...............................................................87
14. ENVIRONMENTAL INDEMNIFICATION...........................................................................88
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.........................................................................90
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........................................................................................93
16.3 SUCCESSORS AND ASSIGNS.........................................................................94
16.4 MODIFICATIONS..................................................................................96
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16.5 ILLEGALITY.....................................................................................97
16.6 GENDER, ETC....................................................................................97
16.7 HEADINGS.......................................................................................97
16.8 PURPOSE........................................................................................97
16.9 RATIFICATION...................................................................................97
16.10 CLAIMS AND RELEASE OF CLAIMS...................................................................98
16.11 EXECUTION IN COUNTERPARTS......................................................................98
16.12 REMEDIES CUMULATIVE............................................................................98
16.13 COSTS, EXPENSES AND LEGAL FEES.................................................................98
16.14 INDEMNITY......................................................................................99
16.15 CONTINUING AGREEMENT...........................................................................99
16.16 COMPLETE AGREEMENT............................................................................100
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 Request for Draw
EXHIBIT H Swingline Note
EXHIBIT I Compliance Certificate
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FOURTH AMENDED AND RESTATED
CREDIT, REIMBURSEMENT AND SECURITY AGREEMENT
MULTI-COLOR CORPORATION, an Ohio corporation (the "Company"),
MCC-BATAVIA, LLC, an Ohio limited liability company ("MCC-Batavia"),
MCC-UNIFLEX, LLC, an Ohio limited liability company ("MCC-Uniflex"), 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.
C. The County of Boone, Kentucky ("Boone County") has issued its
Industrial Building Revenue Bonds (Multi-Color Corporation Project) in
the principal amount of $3,250,000 (hereinafter collectively referred
to as the "Boone Bonds"), under a Trust Indenture dated as of December
1, 1989 (the "Boone Indenture") between Boone County and the Trustee.
D. In order to facilitate the issuance and sale of the Boone Bonds and to
enhance the marketability of the Boone Bonds and thereby achieve
interest cost savings and other savings to the Company, Barclays issued
its irrevocable letter of credit (the "Boone 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 $3,566,875 of
which original amount (i) $3,250,000 was in respect of principal of the
Boone Bonds, (ii) $284,375 was in respect of accrued interest on the
Boone Bonds and (iii) $27,500 was to support the payment of a premium
upon a redemption as a result of a Determination of Taxability as set
forth in the Boone Indenture.
E. 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
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(the "1997 Scottsburg Bonds") under a Trust Indenture dated as of April
1, 1997 (the "1997 Scottsburg Indenture") between Scottsburg and the
Trustee.
F. 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.
G. 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 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.
H. With respect to the Boone Bonds, the Company requested the Agent to
issue an irrevocable alternate letter of credit (the "Boone Alternate
Letter of Credit") to the Trustee in substitution for the Boone Letter
of Credit. Pursuant to Section 6.04(b) of the Boone Indenture, the
issuance of the Boone Alternate Letter of Credit caused the Boone Bonds
to be subject to the right of the holders of the Boone Bonds to require
the redemption of the Boone Bonds pursuant to Section 3.01(b)(ii) of
the Boone Indenture and the Trustee provided notice in accordance with
Section 6.05 of the Boone Indenture to the holders of the Boone Bonds
of their right to require such purchase. The Boone Alternate Letter of
Credit authorized the Trustee to make one or more draws on the Agent up
to an aggregate of $3,566,875 (the "Boone Alternate Letter of Credit
Amount"), of which original amount (i) $3,250,000 is in respect of
principal of the Boone Bonds, (ii) $284,375 is in respect of accrued
interest on the Boone Bonds, and (iii) $27,500 is in respect to the
premium upon redemption as a result of a Determination of Taxability as
set forth in the Boone Indenture.
I. 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
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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).
J. 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.
K. The Company has requested that the Lenders extend a $5,000,000 secured
revolving credit facility to the Company.
L. The Company has requested that the Lenders extend a standby letter of
credit facility to the Company to be included as a $1,000,000 sub-limit
to the revolving credit facility.
M. 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.
N. The Company has requested that the Lenders extend a $7,200,000
non-revolving credit facility to the Company for acquisition purposes.
O. 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 Fourth Restated 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 MCC-Batavia
Barclays MCC-Batavia Alternate Letter of Credit
Boone Alternate Letter of Credit MCC-Batavia Bonds
Boone Alternate Letter of Credit Amount MCC-Batavia Indenture
Boone Bonds MCC-Batavia Letter of Credit Amount
Boone County Scottsburg
Boone Indenture Scottsburg Alternate Letter of Credit
Boone Letter of Credit Scottsburg Alternate Letter of Credit Amount
Company Scottsburg Bonds
Scottsburg Indenture
Scottsburg Letter of Credit
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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 Fourth Restated
Credit Agreement. From and after the closing of the
Uniflex Acquisition, the historical EBITDA of Uniflex
Corporation, a California corporation ("Uniflex"),
will be deemed to be the EBITDA of MCC-Uniflex, LLC
for purposes of this definition. With respect to any
other Permitted Acquisition consummated after the
Closing Date, the historical EBITDA of the seller in
such Acquisition will be deemed to be the EBITDA of
the Company 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.
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
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18
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.
1.1.7A "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.
1.1.8 "Alternate Letter of Credit" will mean the Boone
Alternate Letter of Credit, the Scottsburg Alternate
Letter of Credit and the MCC-Batavia Alternate Letter
of Credit, collectively and individually as the
context requires.
1.1.9 "Applicable Lending Office" will mean the office for
each Lender set forth in Exhibit A.
1.1.10 "Applicable Margin" will mean:
a. As to any Base Rate Advance:
APPLICABLE
LEVERAGE RATIO MARGIN
-------------- ----------
less than 2.0x 0.00%
greater than or equal to 2.0x less than 2.5x 0.00%
greater than or equal to 2.5x less than 3.0x 0.00%
greater than or equal to 3.0x less than 3.5x 0.00%
greater than or equal to 3.5x 0.25%
b. As to any Eurodollar Rate Advance:
APPLICABLE
LEVERAGE RATIO MARGIN
-------------- ----------
less than 2.0x 1.25%
greater than or equal to 2.0x < 2.5x 1.50%
greater than or equal to 2.5x < 3.0x 1.75%
greater than or equal to 3.0x < 3.5x 2.00%
greater than or equal to 3.5x 2.25%
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1.1.11 "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.
1.1.12 "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.
1.1.13 "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).
1.1.14 "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%).
1.1.15 "Base Rate" will mean the higher of (i) the Prime
Rate or (ii) 1/2% per annum in excess of the Federal
Funds Rate.
1.1.16 "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.
1.1.17 "Bond Counsel" will mean Taft, Stettinius & Hollister
as to the Boone Bonds and the Scottsburg Bonds and
Peck, Shaffer & Williams, L.L.P. as to the 1997
Scottsburg Bonds and the MCC-Batavia Bonds.
1.1.18 "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.
1.1.19 "Bonds" will mean the Boone Bonds, Scottsburg Bonds,
1997 Scottsburg Bonds and MCC-Batavia Bonds,
collectively and individually as the context
requires.
1.1.20 "Borrowing" will mean a borrowing consisting of all
Advances made on a given Borrowing Date.
1.1.21 "Borrowing Date" will mean the date on which an
Advance is made.
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20
1.1.22 "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.
1.1.23 "Cash Collateral Account" will mean Account No.
4110349324 at the Agent.
1.1.24 "Closing Date" will mean the date on which this
Fourth Restated Credit Agreement and the other Loan
Documents are executed.
1.1.25 "Code" will mean the Internal Revenue Code of 1986,
as amended or supplemented from time to time.
1.1.26 "Collateral" will mean any property, real or
personal, tangible or intangible, referred to in this
Fourth Restated Credit Agreement or the Security
Documents or now or in the future securing any of the
Obligations.
1.1.27 "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.
1.1.28 "Commitment Fee" will have the meaning given to that
term in Section 2.13.2(b), below.
1.1.29 "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).
1.1.30 "Conversion Date" will mean the date on which an
Advance is converted into a different Type of Advance
(subject to Section 2.5, below).
1.1.31 "Credit Facilities" will mean the Revolving Credit
Facility, the Non-Revolving Credit Facility, the
Swingline Subfacility and the Letter of Credit
Facilities, as described in Section 2, below.
1.1.32 "Date of Issuance" will mean the respective dates the
Boone Alternate Letter of Credit, 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.
1.1.33 "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.
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1.1.34 "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.
1.1.35 "Disclosure Schedule" will mean the updated schedules
to be provided by the Company that are attached
hereto as Exhibit B.
1.1.36 "Dollars" will mean lawful money of the United States
of America.
1.1.37 "EBITDA" will mean operating income (or loss) before
interest expenses, tax expenses, depreciation and
amortization expenses.
1.1.38 "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 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.
1.1.39 "ERISA" will mean the Employee Retirement Income
Security Act of 1974, or any successor statute, as
amended or supplemented from time to time.
1.1.40 "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.
1.1.41 "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.
1.1.42 "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
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22
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 on Dow Jones
Rate Markets Service display page 3750 as quoted by British
Banker's Association or appropriate successor
-------------------------------------------------------
1.00 - Eurodollar Rate Reserve Percentage
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.
1.1.43 "Eurodollar Rate Advance" will mean any Advance as to
which the Company has elected an Interest Rate that
is based upon the Eurodollar Rate.
1.1.44 "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.
1.1.45 "Event of Default" will mean any of the events listed
in Section 11 of this Fourth Restated Credit
Agreement.
1.1.46 "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.
1.1.47 "Fiscal Quarter" means each three (3) month fiscal
period of the Company and its Subsidiaries.
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23
1.1.48 "Fiscal Year" means each annual fiscal period of the
Company and its Subsidiaries ending on or about March
31.
1.1.49 "Fixed Charge Coverage Ratio" will mean for the
Company and its Subsidiaries on a consolidated basis
the ratio of Adjusted EBITDA to Fixed Charges.
1.1.50 "Fixed Charges" will mean for the Company and its
Subsidiaries on a consolidated basis the sum of cash
interest expense, cash taxes, scheduled principal
payments on long-term debt, scheduled payments under
capital leases, the amount expended for Permitted
Stock Buybacks and unfunded capital expenditures.
1.1.51 "Fourth Restated Credit Agreement" or "Credit
Agreement" will mean this Fourth 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.
1.1.52 "GAAP" will mean generally accepted accounting
principles.
1.1.53 "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.
1.1.54 "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").
1.1.55 "Hedging Agreements" will mean, collectively,
interest rate protection agreements, foreign currency
exchange agreements, commodity purchase or option
agreements or other interest or exchange rate or
commodity price hedging agreements, in each case,
entered into or purchased by the Company or any
Subsidiary thereof.
1.1.56 "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; (c) all obligations evidenced by
notes, bonds,
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24
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.
1.1.57 "Indenture" will mean the Boone Indenture, the
Scottsburg Indenture, the 1997 Scottsburg Indenture
and the MCC-Batavia Indenture, collectively and
individually as the context requires.
1.1.58 "Interest Draft" will mean a drawing under any Letter
of Credit to be used for payment of interest due on
the applicable Bonds.
1.1.59 "Interest Period" will mean, with respect to any (a)
Base Rate Advance, a period commencing on the
Borrowing Date or 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;
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25
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 five (5) different Interest
Periods may be outstanding at any one time.
1.1.60 "Interest Portion" will have the meaning ascribed to
such term in the Letters of Credit.
1.1.61 "Interest Rate" will mean the applicable rates under
Section 2.7, below.
1.1.62 "Issuer" will mean Boone County, Kentucky; Clermont
County, Ohio and Scottsburg, Indiana, individually or
collectively as applicable.
1.1.63 "Items" will have the meaning given that term in
Section 3.1 of this Fourth Restated Credit Agreement.
1.1.64 "Lead Arranger" will mean PNC Capital Markets, Inc.
1.1.65 "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.
1.1.66 "Letter of Credit" or "Letters of Credit" will mean
the Scottsburg Alternate Letter of Credit, the Boone
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.
1.1.67 "Letter of Credit Amount" or Letter of Credit
Amounts" will mean the Boone Alternate Letter of
Credit Amount, the Scottsburg Alternate Letter of
Credit Amount, the 1997 Scottsburg Letter of Credit
Amount, and the MCC-Batavia Letter of Credit Amount,
as applicable.
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1.1.68 "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.
1.1.69 "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.
1.1.70 "Letter of Credit Facilities" will mean the Credit
Facilities described in Sections 2.10 and 2.11 of
this Fourth Restated Credit Agreement.
1.1.71 "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.
1.1.72 "Leverage Ratio" will mean the ratio of (i)
Indebtedness less the balance in the Sinking Fund
Account 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.
1.1.73 "Levies" will have the meaning given that term in
Section 2.14 of this Fourth Restated Credit
Agreement.
1.1.74 "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 Alternate
Letter of Credit, and (iii) the date the Liquidity
Period is terminated pursuant to Section 11.
1.1.75 "Loan Documents" will mean this Fourth Restated
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, notices,
certificates and all other written matter now or
hereafter executed by or on behalf of the Company,
and delivered to the Agent or the Lenders in
connection with this Fourth Restated Credit
Agreement, together with all agreements, instruments
and documents referred to therein or contemplated
thereby.
1.1.76 "Long Term Rate" will have the meaning ascribed to
such term in the Indenture, as applicable.
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1.1.77 "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.
1.1.78 "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 or equal to 2.0x less than 2.5x 0.00%
greater than or equal to 2.5x less than 3.0x 0.00%
greater than or equal to 3.0x less than 3.5x 0.00%
greater than or equal to 3.5x 0.25%
b. As to any Eurodollar Rate Advance:
APPLICABLE
LEVERAGE RATIO MARGIN
-------------- ----------
less than or equal to 2.0x 1.25%
greater than or equal to 2.0x less than 2.5x 1.50%
greater than or equal to 2.5x less than 3.0x 1.75%
greater than or equal to 3.0x less than 3.5x 2.00%
greater than or equal to 3.5x 2.25%
1.1.79 "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.
1.1.80 "Non-Revolving Credit Facility" will mean the Credit
Facility described in Section 2.2, below.
1.1.81 "Non-Revolving Credit Loans" will mean the advances
made pursuant to Section 2.2, below."
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1.1.82 "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."
1.1.83 "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.
1.1.84 "Notice of Borrowing" will mean the notice required
under Section 2.3, below, in the form attached to
this Fourth Restated Credit Agreement as Exhibit D.
1.1.85 "Notice of Continuation" will mean the notice
required under Section 2.5, below, in the form
attached to this Fourth Restated Credit Agreement as
Exhibit E.
1.1.86 "Notice of Conversion" will mean the notice required
under Section 2.5, below, in the form attached to
this Fourth Restated Credit Agreement as Exhibit F.
1.1.87 "Notice of Prepayment" will mean the notice required
under Section 2.6, below.
1.1.88 "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.
1.1.89 "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 Fourth Restated
Credit Agreement, the Letters of Credit, the Standby
Letters of Credit, the Letter of Credit Documents,
the Notes or any of the Loan Documents, whether or
not for the payment of money, whether arising by
reason of an extension of credit, 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.
1.1.90 "Outstanding" when applied to the Bonds will have the
meaning ascribed to such term in the Indenture.
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1.1.91 "PBGC" will mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
1.1.92 "Permitted Acquisition" means the Uniflex Acquisition
and any other Acquisition, funded through the
Non-Revolving Credit Facility, 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 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, the Company and
its Subsidiaries are in compliance with all of the
covenants set forth in Sections 10.4, 10.5 and 10.6
below, and that pro-forma Adjusted EBITDA of the
Person acquired is at least five percent (5%) of the
total revenues of such Person, (f) the
representations and warranties made by the Company in
this Fourth Restated 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 giving effect thereto) except
to the extent such representations and warranties
expressly relate to an earlier date.
1.1.93 "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;
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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 Fourth Restated Credit
Agreement);
e. liens in favor of the Agent for the benefit
of the Lenders under this Fourth Restated
Credit Agreement or the Security Documents;
and
f. liens disclosed on the updated Disclosure
Schedule.
1.1.94 "Permitted Stock Buybacks" has the meaning set forth
in Section 10.9 (Redemptions), below.
1.1.95 "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.
1.1.96 "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.
1.1.97 "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.
1.1.98 "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 Fourth Restated Credit
Agreement, then in each such event, any rate of
interest payable under this Fourth Restated 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.
1.1.99 "Principal Portion" will have the meaning ascribed to
such term in the Letters of Credit.
1.1.100 "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,
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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.
1.1.101 "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.
1.1.102 "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.
1.1.103 "Remarketing Agent" will mean the Remarketing Agent
under the Indenture, as applicable.
1.1.104 "Remarketing Agreement" means the Remarketing Agent's
agreement to perform its duties under the Indenture.
1.1.105 "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).
1.1.106 "Required Lenders" shall mean Lenders whose
Commitments aggregate at least 66% of the Commitments
of all of the Lenders.
1.1.107 "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.
1.1.108 "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.
1.1.109 "Revolving Conditions" will mean the conditions
specified in Section 2.1, below.
1.1.110 "Revolving Credit Facility" will mean the Credit
Facility described in Section 2.1, below.
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1.1.111 "Revolving Credit Loans" will mean the advances made
pursuant to Section 2.1. below.
1.1.112 "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.
1.1.113 "Sinking Fund Account" will mean the account
described in Section 4.1 of this Fourth Restated
Credit Agreement.
1.1.114 "Standby Letter of Credit" or "Standby Letters of
Credit" will mean Standby Letters of Credit issued
pursuant to Section 2.11 of this Fourth Restated
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.
1.1.115 "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)
$1,000,000.
1.1.116 "Standby Letter of Credit Conditions" will mean the
conditions specified in Section 2.11.1 of this Fourth
Restated Credit Agreement.
1.1.117 "Standby Letter of Credit Disbursements" will have
the meaning given that term in Section 2.11.5 of this
Fourth Restated Credit Agreement.
1.1.118 "Standby Letter of Credit Facility" will mean the
Credit Facility described in Section 2.11 of this
Fourth Restated Credit Agreement.
1.1.119 "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) 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.
1.1.120 "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.
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1.1.121 "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.
1.1.122 "Swingline Conditions" will mean the conditions
specified in Section 2.2A, below.
1.1.123 "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.
1.1.124 "Swingline Subfacility" will mean the Credit Facility
described in Section 2.2A, below.
1.1.125 "Swingline Loan(s)" will mean the advances made
pursuant to Section 2.2A below.
1.1.126 "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.
1.1.127 "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 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.
1.1.128 "Taxes" will have the meaning given that term in
Section 2.14 of this Fourth Restated Credit
Agreement.
1.1.129 "Tender Agent" will mean the Tender Agent under the
Indenture, as applicable.
1.1.130 "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
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applicable Bonds tendered to the Tender Agent in
accordance with the Indenture and not remarketed.
1.1.131 "Termination Date" will mean June 1, 2003; 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.
1.1.132 "Total Revolving Commitment" will mean the aggregate
of the Revolving Commitment and the Non-Revolving
Commitment.
1.1.133 "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.
1.1.134 "Trustee" shall mean the Trustee under the Indenture,
as applicable.
1.1.135 "Type of Advance" refers to the distinction between
Advances bearing interest at the Base Rate or
Eurodollar Rate.
1.1.136 "Unfunded Capital Expenditures" shall mean any
capital expenditures utilizing funds other than funds
borrowed from the Lenders hereunder.
1.1.137 "Uniflex Acquisition" will mean the Acquisition by
MCC-Uniflex of substantially all of the assets of
Uniflex relating to the manufacture of heat shrink
specialty labels pursuant to the Asset Purchase
Agreement dated as of June 6, 2000 by and among
MCC-Uniflex, as buyer, Uniflex, as seller, and the
other parties thereto.
1.1.138 "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.
1.1.139 "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,
2000, 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
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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 Fourth Restated
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, 2000 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
Fourth Restated 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 Fourth Restated Credit
Agreement will mean this Fourth Restated Credit Agreement as a
whole and not any particular provision of this Fourth Restated
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
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
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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 June 1, 2003. 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 June 1,
2001 upon the request of the Company in an amount not
to exceed $7,200,000 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 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 June 1,
2001.
2.2.3 Unless otherwise agreed in a Non-Revolving Credit
Note, on the earlier of (i) June 1, 2001 or (ii) upon
draws by the Company in an aggregate amount of
$3,500,000 (the "Amortization Commencement Date"),
the aggregate amount of all then-outstanding
Non-Revolving Credit Loans will be converted to a
term loan payable as provided in the Non-Revolving
Credit Notes and in this Fourth Restated 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.
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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) all
Swingline Loans shall accrue interest at the Base
Rate in effect from time to time. Prior to the
Termination Date, Swingline Loans may be repaid and
reborrowed by the Company in accordance with the
provisions of this Fourth Restated 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 5.2. 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 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
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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.
2.3 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 five (5)
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
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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 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
five (5) 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 applicable
conditions set forth in Section 7 hereof, the Agent
will make such funds available to the Company by
crediting the Cash Collateral Account.
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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 Fourth
Restated 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 Fourth Restated 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 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
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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 five (5) 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 Fourth Restated 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 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 five (5) different dates.
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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 Fourth Restated
Credit Agreement, or any requested conversion or
continuation otherwise fails to satisfy the
applicable requirements of this Fourth Restated
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 REVOLVING CREDIT FACILITY.
2.6.1 OPTIONAL PREPAYMENT. Subject to the terms and
conditions of this Fourth Restated 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.
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 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, the Company
shall pay an amount equal to 100% of the
proceeds of such asset disposition to the
Agent as a prepayment of the
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Obligations (to be applied as reasonably
determined by the Agent); PROVIDED that 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 such substitute assets
automatically would become part of the
Collateral without further action of the
Company or any Lender upon the Company's
acquisition thereof.
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 Fourth
Restated 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. Each
Non-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 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 Fourth
Restated 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 last Business Day of
the quarter following the Amortization Commencement
Date and continuing on the last Business Day of each
quarter 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
cure period for any default for which this Fourth
Restated 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 and/or Revolving Commitment, or
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reduce the Standby Letter of Credit, the Swingline Commitment
and/or 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 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 Fourth Restated 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
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
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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 ISSUANCE OF BOONE ALTERNATE LETTER OF CREDIT. The
Company has requested the Agent, as agent and for the
account of the Lenders, to issue the Boone 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
pursuant to the request of the Company, as of the
date of execution and delivery of the Credit
Agreement, the Boone Alternate Letter of Credit in
the Boone Alternate Letter of Credit Amount. The
Interest Portion of the Boone Alternate Letter of
Credit Amount has been established on the basis of
two hundred ten (210) days' interest on the Boone
Bonds, at an assumed maximum interest rate of 15% per
annum. The Boone 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 Boone Alternate Letter of Credit is subject to
prior automatic termination as provided therein. The
payment of all drawings honored under the Boone
Alternate Letter of Credit will be made with the
Agent's own funds. Draws under the Boone Alternate
Letter of Credit are not available to pay any amounts
due under any other Letter of Credit.
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
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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 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
Sinking
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Fund Account payments and principal
and interest payments on such
Bonds. Upon payment in full of 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 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 Fourth Restated Credit Agreement have
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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 Boone
Alternate Letter of Credit, 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 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
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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 Fourth Restated 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 Fourth Restated 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 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
Fourth Restated 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 Fourth Restated Credit Agreement
or any other event or transaction contemplated by any
of the foregoing; provided the Company shall not be
required to indemnify
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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 Fourth Restated Credit Agreement. The
obligations of the Company under this Section shall
survive the termination of this Fourth Restated
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 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
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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
Fourth Restated 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 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
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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, determined 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 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)
whether the Standby Letter of Credit is revocable or
irrevocable, (d) 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,
(e) the terms of payment of any draft or drafts which
may be drawn under the Standby Letter of Credit, and
(f) 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 at the Agent's office.
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,
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54
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 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
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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:
(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
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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 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
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or any of their 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 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,
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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
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
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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"), and the version of the
Uniform Customs 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 and Practice for Documentary
Credits 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 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
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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 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. 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
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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
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. AMENDMENT AND EXTENSION FEE. The Company
shall pay to the Agent, for the account of
the Lenders, on the Closing Date a
non-refundable amendment and extension fee
of $46,295.40 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 or equal to 2.0x less than 2.5x 0.125%
greater than or equal to 2.5x less than 3.0x 0.150%
greater than or equal to 3.0x less than 3.5x 0.200%
greater than or equal to 3.5x 0.250%
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 Fourth Restated Credit
Agreement the Commitment Fee will
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automatically be increased to the highest rate
permitted hereunder. As of the Closing Date, the
initial Commitment Fee will be 0.200%.
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 Fourth
Restated Credit Agreement and the other Loan
Documents and attendant documents and the closing of
the Credit Facilities shall be paid by the Company to
the Agent for the account of the Agent on the Closing
Date.
d. AGENCY FEE. The Company shall pay to the Agent for
its own account a nonrefundable agency fee (the
"Agency Fee") as and when set forth in the letter
agreement dated June 2, 2000 between the Company and
the Agent.
e. 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 advance beginning on
the date of issuance and on the last Business Day of
each June, September, December and March thereafter:
LETTER OF
LEVERAGE RATIO CREDIT FEES
-------------- -----------
greater than or equal to 2.0x 1.00%
greater than or equal to 2.0x less than 2.5x 1.00%
greater than or equal to 2.5x less than 3.0x 1.25%
greater than or equal to 3.0x less than 3.5x 1.50%
greater than or equal to 3.5 1.75%
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 Fourth Restated Credit Agreement the
applicable Letter of Credit Fee will automatically be
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63
increased to the highest rate permitted hereunder. As
of the Closing Date, the initial Letter of Credit
Fees will be 1.50%.
f. ARRANGEMENT FEE. The Company shall pay to the Lead
Arranger for its own account a nonrefundable
arrangement fee as and when set forth in the letter
agreement dated June 2, 2000 between the Company and
the Agent.
g. LOCK BOX FEES. The Company shall pay to the Agent,
for its own account, on demand, the Agent's fees and
charges for the services described in Section 3
hereof at the customary rates of the Agent in effect
from time to time.
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.
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 Fourth Restated 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 any or all of the Cash
Collateral Account, and/or the Sinking Fund 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
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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 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 Fourth Restated 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 Fourth Restated 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
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Company under this Fourth Restated 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 Fourth Restated
Credit Agreement, the Loans, Letters of Credit and
other obligations) or (iii) will impose any other
condition affecting this Fourth Restated 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 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
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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
Fourth Restated Credit Agreement.
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
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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 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 Fourth
Restated Credit Agreement.
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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,
permitted acquisitions 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.
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. LOCK BOX; CASH COLLATERAL ACCOUNT.
3.1 LOCK BOX.
3.1.1 Until the expiration of this Fourth Restated Credit
Agreement, the Company will instruct its customers to
forward all payments, receipts and remittances in
favor of the Company, whether in the form of checks,
drafts or other orders for the payment of money
("Items") to the Lock Box as set forth in this
Section 3. The Company authorizes the Agent to act as
its agent and to have exclusive and unrestricted
access to its incoming mail for the purpose of
processing remittances therein.
3.1.2 As the agent for the Company, the Agent will:
a. Collect mail from the Post Office at various
times each Business Day in accordance with
the Agent's regular collection schedule. The
relationship of a Company to the Agent as a
depositor will commence only when the Items
are credited to the Cash Collateral Account.
Prior to such time, the Agent will be
considered to be a bailee as to the Items in
its possession.
b. Open such mail and remove the contents
thereof. The Items contained in the envelope
will be inspected for validity and handled
accordingly. All Items contained therein,
which appear to be for deposit to a
Company's credit will be endorsed:
"Credit to the Account of the Within Named Payee
Absence of Endorsement Guaranteed
________________________"
Should any Item be returned to the Company by the
drawee bank with the request for personal
endorsement, the Company and each of its Subsidiaries
authorizes the Agent to endorse the Item "Pay to the
Order
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of" any one or more of the following Persons:
Multi-Color Corporation, Buriot International, Inc.,
MCC-Batavia, LLC, MCC-Uniflex, LLC, Uniflex, Uniflex
Corporation or Laser Graphic Systems, Incorporated.
c. Prepare a photocopy of each Item processed
and attach the copy to the proper envelope
together with any correspondence or other
material accompanying the remittance, if
necessary.
d. Deposit such Items to the Cash Collateral
Account, it being understood that the credit
and collection of such Items should be
subject to the same terms and conditions as
would apply to deposits received by the
Agent directly from the Company. Deposits
should be made in anticipation of major
check clearing deadlines in order to
maximize funds availability.
e. Mail each Business Day an advice of credit
listing the processed Items, total amount
deposited and all original Items that are
not accepted for deposit and all associated
remittance detail to the Company at the
address listed in Section 16.2 of this
Fourth Restated Credit Agreement.
f. Telephone advice to the Company (Contact
Person: Vice President of Finance or her
designee) of the total amount of each
deposit on a daily basis at telephone number
(513) 381-1480, ext. 104.
g. Maintain a microfilm record of each Item
deposited in processing sequence for
reference purposes for at least two (2)
years. The Company may receive photocopies
of the microfilmed Items if they provide the
deposit date, the account number and the
deposit total. Charges will be imposed for
furnishing the photocopies to the Company at
the Agent's customary rates.
h. Handle irregular Items as follows:
(i) The Agent will use its best efforts
to examine the front and back sides
of Items to detect handwritten or
typed "paid in full" or similar
language but will not be liable for
any failure to do so and will not
be responsible for any loss
relating to deposit of such Items.
Where the Agent's personnel observe
that such language has been
handwritten or typed on the Item,
the Item will not be deposited into
a Cash Collateral Account and the
Agent will notify the Company by
telephone advice to the contact
person and at the telephone number
listed in this Section 3.1.2.
(ii) Postdated Items may be processed in
accordance with the Agent's policy.
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(iii) Undated Items may be processed in
accordance with the Agent's policy.
(iv) If legible, the amount in words
will always be accepted provided it
agrees with the accompanying
remittance forms. If the words are
not legible, the amount in figures
will be guaranteed if it agrees
with the remittance forms. If the
amount is not legible, is missing
or if the figures do not agree with
the remittance forms, the Item will
not be deposited in a Cash
Collateral Account.
(v) Deposit Items returned for
insufficient or uncollected funds
will be automatically redeposited.
If an Item is returned for "Account
Closed or Payment Stopped" or if an
Item is returned unpaid a second
time for insufficient or
uncollected funds, it should be
charged back to the Cash Collateral
Account and advice mailed to the
Company at the address listed in
Section 16.2 of this Fourth
Restated Credit Agreement. Charges
will be imposed for such Items at
the Agent's customary rates. The
Company understands that it is the
practice of the Agent to notify
customers on the return of Items in
an amount above certain limits set
by the Agent from time to time and
agrees that the Agent will notify
the Company by telephone advice to
the contact person and at the
telephone number listed in this
Section 3.1.2(f).
(vi) Items denominated in a foreign
currency and drawn on a foreign
bank will not be deposited, but
will be submitted for collection
only. An appropriate advice will be
forwarded to the Company. The Agent
will not be responsible for the
fluctuation in exchange rates.
3.1.3 The Agent will have the right to credit or debit the
Cash Collateral Account to correct processing
mistakes which are capable of correction. Copies of
credit or debit advices will be sent to the Company.
If the Company does not object to entries appearing
on any Cash Collateral Account statement within
eighteen (18) months of the transaction date, the
Agent's accounting thereon shall become final and
binding.
3.1.4 The Agent will have no duty to perform services not
enumerated in this Section 3 and the Agent's
responsibility under this Section 3 shall be limited,
except as otherwise specifically set forth herein, to
the exercise of ordinary care. Failure to exercise
ordinary care shall not be inferable by reason of
loss of an Item, without in addition thereto a
showing of negligence on the part of the Agent.
Establishment of and substantial compliance with the
procedures set forth in this Section 3 by the Agent
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shall be deemed to constitute the exercise of
ordinary care. The Company agrees that occasional
unintentional deviations by the Agent from the
procedures set forth in this Section 3 shall not be
deemed a failure to exercise ordinary care. The Agent
shall not be liable to the Company for failure to
perform under this Fourth Restated Credit Agreement
if such failure is due to the occurrence of any event
beyond the control of the Agent, PROVIDED that Agent
exercises reasonable diligence under the
circumstances. THE AGENT MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO WARRANTIES OF COLLECTABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3.2 CASH COLLATERAL ACCOUNT.
3.2.1 Until the expiration of this Fourth Restated Credit
Agreement, all Items from the Lock Box will be
deposited into the Cash Collateral Account pursuant
to the terms of Section 3.1 and all accounts
receivable and other funds generated and received by
the Company and all other receipts of the Company
that are received by the Company through methods
other than by deposit into the Lock Box, regardless
of origin, will be deposited by the Company into the
Cash Collateral Account. Subject to the limitations,
terms and conditions of this Fourth Restated Credit
Agreement, all funds deposited to the Cash Collateral
Account will be available for use by the Company
immediately upon receipt by the Agent of collected
funds from the payor bank.
3.2.2 The Agent will not be obligated to make any charge to
or transfer from the Cash Collateral Account with
respect to sums received which the Agent, in its
discretion, designates as held against Letter of
Credit Obligations and other Obligations related
thereto.
4. BOND REDEMPTION.
4.1 DEPOSITS TO SINKING FUND ACCOUNT. The Company will maintain a
depository account with the Agent (the "Sinking Fund
Account"). On the first Business Day of each Fiscal Quarter
the Company will continue to deposit $200,000 into the Sinking
Fund Account until the Termination Date. The funds deposited
into the Sinking Fund Account will be invested in Eligible
Investments and, provided no Default or Event of Default shall
have occurred and be continuing, such funds and the interest
thereon will be used to redeem the Bonds upon mandatory or,
with the Lenders' prior written approval, optional,
redemption. Upon the Agent's request, the Company shall use
the funds in the Sinking Fund Account to redeem Bonds pursuant
to the optional redemption provisions thereof.
4.2 MCC-BATAVIA BOND REDEMPTION. MCC-Batavia will redeem
outstanding MCC-Batavia Bonds in a principal amount of at
least $175,000 during each
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calendar quarter, commencing September 1, 2000 and continuing
on each December 1st, March 1st, June 1st and September 1st
thereafter. 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.
6. SECURITY AND SUBROGATION UNDER INDENTURE.
6.1 SECURITY. To further secure the Company's Letter of Credit
Obligations under this Fourth Restated 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 Fourth
Restated 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.
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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 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 Fourth
Restated 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
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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.
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 Fourth
Restated 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 Fourth Restated 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 Fourth Restated 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, MCC-Batavia or MCC-Uniflex, as applicable,
together with all instruments, Uniform Commercial
Code Financing Statements 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
directed to the Agent and the Lenders in form and
substance and from counsel acceptable to the Agent.
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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 of the Company, of the
Members in MCC-Batavia and of the Members of
MCC-Uniflex, authorizing the execution, delivery and
performance of this Fourth Restated 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 incorporated 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 TITLE INSURANCE. The Agent has been issued, with
respect to each of the properties secured by the (i)
Open-End Mortgage, Assignment of Rents and Leases and
Security Agreement between the Company and Agent
dated July 13, 1994 recorded on July 19, 1994 in
Official Record Book 1015, Page 307 of the land
records of Boone County, Kentucky, (ii) Open-End
Mortgage, Assignment of Rents and Leases and Security
Agreement dated July 13, 1994 recorded on July 19,
1994 in Mortgage Record Volume 171, Pages 42-58 of
the land records of Scott County, Indiana and (iii)
Open-End Mortgage, Assignment of Rents and Leases and
Security Agreement between MCC-Batavia and Agent
dated December 17, 1999 recorded on December 20, 1999
in Official Record Book 1242 Page 1175 of the land
records of Clermont County, Ohio (collectively the
"Mortgaged Properties"), a commitment for the
issuance of an ALTA mortgagee's policy of title
insurance, in form and substance and issued by a
company or companies acceptable to the Agent (with
appropriate reinsurance or co-insurance agreements,
where required by the Agent), showing fee simple
title to such Mortgaged Properties to be vested in
the Company, MCC-Batavia or MCC-Uniflex, as
applicable, and showing and insuring the Mortgage on
each such Mortgaged Property to be a good and valid
first lien on the Company's, MCC-Batavia's or
MCC-Uniflex's interest in such property, subject only
to such title exceptions as may be approved by the
Agent. Complete and legible copies of all documents
affecting title shall be included in each such
commitment. Each policy must insure against, in
addition to other items, mechanic's liens and
eliminate survey and other standard "pre-printed"
exceptions, shall provide for affirmative insurance
coverage with respect to such easements and other
matters as the Agent may require, and shall include
such revolving credit, zoning and other endorsements
as the Agent may require. Any restrictions, parking
agreements, access or utility easements, common
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maintenance and service agreements, and other similar
documents or agreements shall be subject to the
Agent's review and approval.
7.1.7 SURVEY. The Company has provided the Agent with a
survey (dated not more than thirty (30) days prior to
the Closing Date) of each of the Mortgaged
Properties, prepared by a licensed surveyor
acceptable to the Agent with adequate errors and
omissions insurance, showing, through the use of
course bearings and distances, the boundaries of each
Mortgaged Property and location of the building
located on each Mortgaged Property in relation
thereto and all dimensions thereof, and all
easements, set-back lines, deviations between survey
lines and title lines, rights of way, encroachments,
bench marks, etc. The survey shall contain a full
legal description of adjacent and contiguous streets
as well as measurement to the nearest intersection or
other adequate checkpoint in form and substance
satisfactory to the Agent. Such survey shall be
certified to the Agent, the title insurance companies
and any other party required by the Agent and shall
otherwise be reasonably acceptable to the Agent and
sufficient for the title insurance companies to
remove the survey exceptions from the title insurance
policies.
7.1.8 INSURANCE. The Company shall provide to the Agent
evidence of all required insurance coverage under
Section 9.12 hereof.
7.1.9 WETLANDS. The Company shall provide the Agent with
evidence, satisfactory to the Agent, that (a) none of
the Mortgaged Properties contain any areas that
constitute wetlands (as defined in 40 C.F.R. Section
122.2 and 33 C.F.R. Section 328.3), and (b) there
has been no unpermitted filling of wetlands at any of
such Mortgaged Properties.
7.1.10 APPRAISAL. The Agent has received an updated
appraisal of each Mortgaged Property, in form and
content satisfactory to the Agent, prepared by an MAI
appraiser selected or approved by the Agent.
7.1.11 ENVIRONMENTAL REQUIREMENTS. The Company shall provide
the Agent with an environmental engineer's report for
each of the Mortgaged Properties, in form and
substance acceptable to the Agent. Such environmental
engineer must be approved by the Agent. Such report
shall indicate, among other things, that the
Mortgaged Properties are not and have not been
affected by the presence of any toxic or hazardous
substance or waste, or underground storage tanks, or
any other pollutants that could be detrimental to any
of the Mortgaged Properties, human health, or the
environment, that the Mortgaged Properties are not in
violation of any local, state or federal laws or
regulations except as set forth on the Disclosure
Schedule and that no environmental problems exist
with respect to the Mortgaged Properties. Such report
also shall (i) indicate that the engineers have made
written inquiry of the appropriate regional office of
the United States Environmental Protection Agency
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("EPA"), and the appropriate agency or authority,
requesting any information held by the EPA or the
appropriate state agency indicating whether or not
any of the Mortgaged Properties are or have been
identified as a site containing toxic or hazardous
substance or waste or underground storage tanks, and
(ii) provide the Agent with a history of the use of
the Mortgaged Properties giving particular attention
to possible past military, industrial or land-fill
use and as to the presence of any and all underground
storage tanks.
7.1.12 FULL SYNDICATION. The Agent shall have received
written commitments from the Lenders to assume the
lending responsibility for the Commitments.
7.1.13 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.
7.1.14 CONSENTS. The Agent has received copies of all
consents which the Company must obtain in connection
with the transactions contemplated hereby.
7.1.15 UNIFLEX ACQUISITION DOCUMENTS. The Lenders have
received true and complete copies of all documents to
which the Company or any of its Subsidiaries is a
party relating to the Uniflex Acquisition, including
without limitation the Asset Purchase Agreement
(including all appendices, exhibits and schedules
thereto) between MCC-Uniflex, LLC, as buyer, Uniflex,
as seller, and the other parties thereto.
7.1.16 FEES. The Agent and the Lenders have received full
payment of all fees, expenses and other amounts then
due under this Fourth Restated Credit Agreement.
7.1.17 DELIVERY OF THE BOND DOCUMENTS AND SECURITY
DOCUMENTS. The Bond Documents and Security Documents
have been executed and delivered by the parties
thereto, each in form and substance satisfactory to
the Agent, and the Agent has received an executed or
conformed copy of each of the Bond Documents and
Security Documents.
7.1.18 NO DEFAULT. No Default or Event of Default exists.
7.1.19 REPRESENTATIONS AND WARRANTIES. All representations
and warranties of the Company and its Subsidiaries
contained in this Fourth Restated 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.
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7.1.20 CERTIFICATES. There has been delivered to the Agent a
certificate of the Company dated the Closing Date, to
the effect that all of the conditions specified in
Sections 7.1.18 and 7.1.19 have been satisfied as of
such date.
7.1.21 OPINION OF BOND COUNSEL. There has been delivered to
the Agent an opinion of Bond Counsel, dated the Date
of Issuance and in form and substance satisfactory to
the Agent, to the effect that the Bonds are legal,
valid and binding obligations of the Issuer and that
interest on the Bonds are exempt from Federal income
taxes under existing statutes, and court decisions
(with such exceptions as are satisfactory to the
Agent), and covering such other matters as the Agent
may reasonably request.
7.1.22 DOCUMENTATION AND PROCEEDINGS. All instruments in
connection with the transactions contemplated by this
Fourth Restated Credit Agreement and the Bond
Documents are satisfactory in form and substance to
the Agent and its counsel and 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 Fourth Restated
Credit Agreement and the Bond Documents, such
documents where appropriate to be certified by
authorized officers of the Company or proper
governmental authorities.
7.1.23 OTHER DOCUMENTS. The Lenders have received such other
documents as they may have reasonably required in
connection with the transactions provided for in this
Fourth Restated Credit Agreement, all in form and
substance satisfactory to the Agent.
7.1.24 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 Fourth Restated 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.
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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 continue 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 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, 2000, 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, 2000. 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, 2000, 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.
8.4 RECENT ACTIONS. Since March 31, 2000, 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
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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, 2000 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, 2000, the Company, MCC-Batavia or MCC-Uniflex
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 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 respective
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 has full corporate power and authority
to enter into the transactions provided for in this Fourth
Restated Credit Agreement and has been duly authorized to do
so by appropriate action of its board of directors.
MCC-Batavia has full limited liability company power and
authority to enter into the transactions provided for in this
Fourth Restated Credit Agreement and has been duly authorized
to do so by appropriate action of its members. MCC-Uniflex has
full limited liability company power and authority to enter
into the transactions provided for in this Fourth Restated
Credit Agreement and has been duly authorized to do so by
appropriate action of its members. This Fourth Restated Credit
Agreement, the Notes and the other Loan Documents as amended,
when executed and delivered by the Company, MCC-Batavia and
MCC-Uniflex, constitute the legal, valid and binding
obligations of the Company, MCC-Batavia or MCC-Uniflex, 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.
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8.9 OTHER DEFAULTS. There does not now exist any material default
or violation by the Company, MCC-Batavia or MCC-Uniflex of or
under any of the terms, conditions or obligations of: (i) with
respect to the Company, its Articles of Incorporation or Code
of Regulations; (ii) with respect to MCC-Batavia, its Articles
of Organization or Operating Agreement; (iii) with respect to
MCC-Uniflex, its Articles of Organization or Operating
Agreement (iv) any indenture, or deed of trust or mortgage to
which it is a party or by which it is bound; (v) any agreement
or instrument evidencing debt to which it is a party or by
which it is bound; (vi) any other material franchise, permit,
contract, agreement or other instrument to which it is a party
or by which it is bound; or (vii) 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 Fourth Restated Credit Agreement nor the consummation of
any of the transactions herein contemplated (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
Fourth Restated 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. Except as disclosed in the Disclosure Schedule, 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
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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 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
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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
Fourth Restated 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 Fourth Restated Credit Agreement or any of the Loan
Documents, which have not been obtained or made.
8.16 DISCLOSURE. Neither this Fourth Restated 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 name of the
Company's Subsidiaries, its jurisdiction of formation, its
authorized capital stock, the issued and outstanding equity
interests (referred to herein as the "Subsidiary Shares") and
the owners thereof if it is a corporation, its outstanding
partnership interests (the "Partnership Interests") if it is a
partnership and its outstanding limited liability company
interests, interests assigned to managers thereof and the
voting rights associated therewith (the "LLC Interests") if it
is a limited liability company. The Company and each
Subsidiary of the Company has good and marketable title to all
of the Subsidiary Shares, Partnership Interests and LLC
Interests it purports to own, free and clear in each case of
any lien or encumbrance. All Subsidiary Shares, Partnership
Interests and LLC Interests have been validly issued, and all
Subsidiary Shares are fully paid and nonassessable. All
capital contributions and other consideration required to be
made or paid in connection with the issuance of the
Partnership Interests and LLC Interests have been made or
paid, as the case may be. There are no options, warrants or
other rights outstanding to purchase any such Subsidiary
Shares, Partnership Interests or LLC Interests except as
indicated on the Disclosure Schedule.
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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 the Subsidiary Shares,
Partnership Interests and LLC 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 the Shares, Partnership
Interests or LLC Interests 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 are no shareholder,
partnership, limited liability company or other agreements or
understandings with respect to the Subsidiary Shares,
Partnership Interests or LLC 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 Fourth Restated Credit
Agreement.
8.21 SENIOR DEBT STATUS. The Obligations of the Company and its
Subsidiaries under this Fourth Restated 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 Fourth Restated Credit Agreement until all
Obligations to the Lenders have been fully paid and this Fourth
Restated Credit Agreement terminated:
9.1 SINKING FUND. The Company will maintain the Sinking Fund
Account with the Agent and make timely deposits therein
pursuant to the terms of this Fourth Restated Credit
Agreement.
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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
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 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 J. 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 QUARTERLY STATEMENTS. The Company will furnish the Agent
within forty-five (45) days after the end of each Fiscal
Quarter copies of financial statements for the Company and its
Subsidiaries, which financial statements will: (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 in accordance with GAAP
applied on a basis consistent with the preceding quarter's
statements, if any; and (c) contain a certificate by each such
officer (i) covering the matters described in Section 9.3(c),
above, and (ii) stating that to the best of such officer's
knowledge, at the end of and during such period the Company
and its Subsidiaries have observed or performed or satisfied
all agreements, orders, decrees or other requirements
applicable to or imposed upon them by any federal or state
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department or agency regulating their government contracting
activities, except as specified in such certificate. Such
certificates will be in the form of the attached Exhibit I.
Those financial statements will include a balance sheet as of
the end of such quarter, a statement of income, retained
earnings and cash flow for such quarter, setting forth in each
case in comparative form the corresponding figures for the
corresponding periods in the preceding fiscal year. The Agent
will promptly send a copy of such financial statements and
certificates to each Lender.
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 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 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, 9.4 and 9.6, above, the Company will deliver
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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 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
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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
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
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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 Fourth Restated 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 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
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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 Fourth Restated Credit Agreement until all of the
Obligations have been fully paid and this Fourth Restated 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
Disclosure Schedule; (c) open account obligations incurred in
the ordinary course of business having maturities of less than
seventy-five (75) days; (d) rental and lease payments as
described in Section 10.2, below; and (e) purchase money debt
up to $10,000 in the aggregate 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 Fourth Restated
Credit Agreement).
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, 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
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funded by KeyBank National Association pursuant to the lease
facility between KeyBank National Association and the Company;
provided that the Company's and its Subsidiaries' aggregate
financial commitment thereunder does not exceed $2,000,000
during the term of this Fourth Restated 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 Fourth Restated 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 the following at the end of any
calendar quarter during the following calendar years:
YEAR RATIO
------- -------------
2000 3.75 to 1.00
2001 3.50 to 1.00
2002 3.25 to 1.00
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.
10.6 TANGIBLE NET WORTH. Permit Tangible Net Worth for the Company
and its Subsidiaries to be less than $8,000,000 (provided,
however, that this amount will be reduced to $4,000,000 if the
Uniflex Acquisition is completed), 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.
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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, 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 Company may utilize up to $250,000 in any Fiscal Year for
such redemptions ("Permitted Stock Buybacks"). Unexpended
amounts from the prior Fiscal Year may not be carried forward
to the next Fiscal Year.
10.10 DIVIDENDS. Declare or pay dividends 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 $10,000 per employee or $100,000 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
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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 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 Fourth Restated 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
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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.
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
Fourth Restated Credit Agreement, (c) any amounts due under
this Fourth Restated 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, (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 (e)
payments into the Sinking Fund Account; 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 Fourth Restated 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
Fourth Restated Credit Agreement, in any other Loan Document
or in any report, certificate, opinion (including any
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opinion of counsel to the Company), financial statement or
other instrument furnished at any time under or in connection
with this Fourth Restated 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 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 Fourth Restated 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 Fourth Restated
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
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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 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 Fourth Restated Credit
Agreement; or
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;
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,
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c. exercise all rights and remedies under the Bond
Documents,
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.
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
Fourth Restated Credit Agreement
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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 Fourth Restated
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 Fourth Restated Credit Agreement related to
such Letter of Credit in an amount equal to the Ratable
Portion of such 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 Fourth Restated 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
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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 Fourth Restated 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 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 Fourth Restated 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 Fourth
Restated 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
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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, 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 Fourth Restated Credit Agreement, the Security Documents and the
issuance of the Notes.
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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 related
liabilities. The provisions of this Section will survive any
termination of this Fourth Restated 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 Fourth Restated 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 Fourth Restated 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 Fourth Restated
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 Fourth
Restated 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
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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
Fourth Restated 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 connection with this Fourth
Restated 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 Fourth Restated 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 Fourth Restated 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 Fourth Restated 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 Fourth Restated 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
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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 Fourth Restated 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 Fourth Restated Credit Agreement, the 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 Fourth Restated 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 Fourth Restated 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 Fourth Restated 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 Fourth
Restated Credit Agreement.
15.6 SUCCESSOR AGENT. The Agent may resign at any time as Agent
under this Fourth Restated 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
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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
Fourth Restated Credit Agreement; PROVIDED, HOWEVER, that the
successor Agent will not be considered as a Lender for
purposes of this Fourth Restated 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 Fourth
Restated 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 this Fourth Restated
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 Fourth Restated
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 Fourth Restated 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 Fourth
Restated 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
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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 Fourth
Restated 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
Fourth Restated 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 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.
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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;
(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.
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16.3 SUCCESSORS AND ASSIGNS.
16.3.1 This Fourth Restated 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 Fourth Restated 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 Fourth Restated 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 (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 Fourth Restated 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 $1,000,000 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 $2,000.
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 Fourth Restated 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 Fourth Restated Credit Agreement, such Lender
will cease to be a party hereto).
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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 Fourth Restated 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.
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 $1,000,000 each, to one or more banks or
other entities in all or a portion of its rights and
obligations under this Fourth Restated 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 Fourth Restated 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
Fourth Restated 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 $2,000 service charge
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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 Fourth Restated Credit Agreement
with respect to its participating interest, in each
case, as if such participant were a Lender.
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 Fourth Restated 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 Fourth Restated 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 Fourth Restated 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 Fourth Restated 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 Agent; provided, however, that any increase in such
fees shall not be effective unless the same is in writing and
signed by the Lenders and 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.
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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 Fourth Restated
Credit Agreement in whole or in part, then such clause or
provision only will be void, as though not herein contained,
and the remainder of this Fourth Restated 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 Fourth Restated 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 Fourth
Restated Credit Agreement. The purpose of this Fourth Restated
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 Fourth Restated 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 Fourth Restated 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 Fourth Restated 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
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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 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 Fourth Restated 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 Fourth Restated 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
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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 & Jacobs LLP, 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 Fourth Restated Credit
Agreement and the other amended Loan Documents; in amending,
supplementing, waiving or enforcing provisions of this Fourth
Restated Credit Agreement and the other amended Loan
Documents; in collecting any sum which is not paid when due
under this Fourth Restated 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 Fourth Restated
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 Fourth Restated 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 Fourth Restated 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 Fourth Restated
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 Fourth Restated Credit Agreement.
16.15 CONTINUING AGREEMENT. This Fourth Restated 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
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Facilities, Commitments, Letters of Credit and Standby Letters
of Credit are terminated.
16.16 COMPLETE AGREEMENT. This Fourth Restated 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.
16.17 NO THIRD PARTY BENEFICIARIES. Nothing express or implied
herein is intended or will be construed to confer upon or give
any person, firm or corporation, 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
FOURTH RESTATED 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 FOURTH RESTATED
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
FOURTH RESTATED CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS OR
ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH AGREEMENTS.
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Signed at Cincinnati, Ohio, effective as of June 6, 2000.
MULTI-COLOR CORPORATION
Address for Notices:
Multi-Color Corporation
205 West Fourth Street, Suite 1140 By: /s/ Dawn H. Bertsche
Cincinnati, Ohio 45202 Print Name: Dawn H. Bertsche
Attn: Vice President - Finance Title: Vice President
MCC-BATAVIA, LLC
Address for Notices:
MCC-Batavia, LLC
205 West Fourth Street, Suite 1140 By: /s/ Dawn H. Bertsche
Cincinnati, Ohio 45202 Print Name: Dawn H. Bertsche
Attn: Vice President - Finance Title: Vice President
MCC-UNIFLEX, LLC
Address for Notices:
MCC-Uniflex, LLC
205 West Fourth Street, Suite 1140 By: /s/ Dawn H. Bertsche
Cincinnati, Ohio 45202 Print Name: Dawn H. Bertsche
Attn: Vice President - Finance Title: Vice President
PNC BANK, NATIONAL
ASSOCIATION, ON ITS OWN BEHALF AS
Address for Notices: LENDER AND AS AGENT
PNC Bank, National Association
201 East Fifth Street By: /s/ Warren F. Weber
Cincinnati, Ohio 45202 Print Name: Warren F. Weber
Attn: Corporate Banking Title: Vice President
KEYBANK NATIONAL ASSOCIATION,
Address for Notices: AS LENDER
KeyBank National Association
525 Vine Street, 6th Floor By: /s/ Louis A. Fender
Cincinnati, Ohio 45202 Print Name: Louis A. Fender
Attn: Corporate Banking Title: Sr. Vice President
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