<PAGE> 1
FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended March 29, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _____________
Commission File Number 0-16148
MULTI-COLOR CORPORATION
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(Exact name of registrant as specified in its charter)
OHIO 31-1125853
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(State or other jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
205 WEST FOURTH STREET, CINCINNATI, OHIO 45202
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (513) 381-1480
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, no par value
(Title of class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrants knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K [X].
The aggregate market value of voting stock based on a closing price of $6.50 per
share held by nonaffiliates of the registrant is $4,777,201 as of June 16, 1998.
As of June 16, 1998, 2,279,220 shares of common stock, no par value, were issued
and outstanding.
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2
INDEX TO ANNUAL REPORT ON FORM 10-K
<TABLE>
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PART I Page
<S> <C> <C>
Item 1 Business 3
Item 2 Properties 5
Item 3 Legal Proceedings 5
Item 4 Submission of Matters to Vote of Security Holders 5
PART II
Item 5 Market for the Registrant's Common Equity and Related Stockholder Matters 6
Item 6 Selected Financial Data 7
Item 7 Management's Discussion and Analysis of Financial Condition and Results
of Operations 7-12
Item 7A Quantitative and Qualitative Disclosures About Market Risk 12
Item 8 Financial Statements and Supplementary Data 12-29
Item 9 Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure 29
ITEM III
Item 10 Directors and Executive Officers of the Registrant 30-32
Item 11 Executive Compensation 32-33
Item 12 Security Ownership of Certain Beneficial Owners and Management 33-34
Item 13 Certain Relationships and Related Transactions 34
ITEM IV
Item 14 Exhibits, Financial Statement Schedules, and Reports on Form 8-K 34-38
</TABLE>
Certain statements contained in this report that are not historical
facts constitute forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995, and are intended to be covered by the
safe harbors created by that Act. Reliance should not be placed on
forward-looking statements because they involve known and unknown risks,
uncertainties and other factors which may cause actual results, performance or
achievements to differ materially from those expressed or implied. Any
forward-looking statement speaks only as of the date made. The Company
undertakes no obligation to update any forward-looking statements to reflect
events or circumstances after the date on which they are made.
Statements concerning expected financial performance, on-going business
strategies, and possible future action which the Company intends to pursue in
order to achieve strategic objectives constitute forward-looking information.
Implementation of these strategies and the achievement of such financial
performance are each subject to numerous conditions, uncertainties and risk
factors. Factors which could cause actual performance to differ materially from
these forward looking statements include, without limitation, factors discussed
in conjunction with a forward-looking statement; changes in general economic
conditions; the success of its significant customers; acceptance of new product
offerings; changes in business strategy or plans; quality of management;
availability, terms and development of capital; availability of raw materials;
business abilities and judgment of personnel; changes in, or the failure to
comply with, government regulations; competition; the ability to achieve cost
reductions; the ability to dispose of certain assets at favorable prices;
increases in general interest rates levels affecting the company's interest
costs (most of which are tied to general interest rate levels); the ability to
refinance outstanding debt on favorable terms; the ability to obtain favorable
outcomes with respect to threatened legal proceedings; and the ability to reduce
or defer certain capital expenditures. The Company undertakes no obligation to
publicly update or revise any forward-looking statements, whether as a result of
new information, future events or otherwise.
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PART I
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ITEM 1. BUSINESS
GENERAL
Multi-Color is one of the largest producers of printed labels for
branded consumer products in the United States. Labels printed by the Company
appear principally on mass-marketed products for which label appearance is a
significant element of product marketing and merchandising. In its latest fiscal
year, Multi-Color produced labels for a variety of consumer products including
liquid detergents, fabric softeners, liquid soaps, anti-freeze, motor oil,
chewing gum and food products. Multi-Color currently produces labels for
approximately 50 customers.
In 1985, Multi-Color acquired the net assets of the label divisions of
Georgia-Pacific for $14.3 million cash and a $1 million secured subordinated
note. Multi-Color established the Multi-Color Graphic Services division in 1987.
This division supplies color separations of labels and engraves cylinders. The
division was formed to improve the quality of separations and engravings
supplied to Multi-Color and its customers. This division completed an expansion
in fiscal 1991 that allows it to engrave cylinders for the Company's Scottsburg,
Indiana plant. The Company constructed a rotogravure printing plant in
Scottsburg, Indiana in 1990. This plant was built to provide additional printing
capacity and capabilities to meet the changing needs of the marketplace.
During the second quarter of fiscal 1997, the Company started a new
entity with Think Laboratories, Inc. of Kashiwa, Japan, through a new
corporation owned 80% by the Company and entitled Laser Graphic Systems,
Incorporated ("LGSI"), to develop the market for engraving services in the
United States. The Company also initiated an expansion of its Scottsburg,
Indiana facility which entailed doubling the existing capacity of the
Scottsburg, Indiana plant during 1997. This expansion supports the continued
growth expected in the in-mold and other label markets.
The Company's executive offices are located at 205 West Fourth Street,
Cincinnati, Ohio 45202, and its telephone number is (513)381-1480. Unless the
context otherwise requires, the "Company" and "Multi-Color" refer to Multi-Color
Corporation and its predecessors.
PRODUCTS
The Company's predecessors began producing paper labels in 1918 and the
Company has maintained several customer relationships that have existed since
that time. Multi-Color produces labels which are used to wrap products or are
affixed to finished product containers. These labels are printed for chewing
gum, plastic bottled products, boxed consumer products, automotive liquid
products, and personal care products. In addition, the Company produces gift
wrap.
In 1980, Multi-Color developed the in-mold label in response to the
increasing use of blow-molded plastic containers. Working in conjunction with a
customer, the Company and a leading supplier of blow-molded plastic containers
developed the in-mold label process which applies a label to a plastic container
as the container is being formed in the mold cavity. Multi-Color developed the
label and the method of applying the heat-activated adhesive to the label. The
in-mold label solves many of the quality problems associated with conventional
labels and produces a more attractive labeled container.
Multi-Color provides printed in-mold labels to consumer product
companies and, in addition, sells the unprinted in-mold label substrate to other
label printing companies. In-mold labels produced by Multi-Color are used on
liquid consumer product containers for laundry detergents, fabric softeners,
fruit juices, bleach, anti-freeze, dishwashing detergents, vegetable oils, and
personal care products.
Based on the technological capabilities of its printing facilities, the
Company has recently introduced the following value added products in the
growing markets listed below:
1) Plastic in-mold products for the personal care and household
chemical markets which should offer superior value compared to
current labeling techniques.
2) In-mold label product for injection molding in the ice cream
and food markets.
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4
Multi-Color produces rotogravure cylinders at Multi-Color Graphics and
its LGSI subsidiary. Employing a proprietary laser-exposing process which the
Company licenses from Think Laboratories, Inc., the resulting cylinders produce
gravure's high quality at costs comparable to other printing technologies. The
Company is seeking to market the unique services of LGSI to customers other than
its label customers and believes that significant potential exists for this
technology.
In addition, Multi-Color has expanded the reach of its products through
exports and licensing agreements in a number of countries.
SALES AND MARKETING
Multi-Color receives annual or quarterly requirements estimates for
labels from its customers and ships against orders received, except in certain
cases where the Company has agreements with minimum purchase requirements.
The Company's marketing efforts are directed toward obtaining new
customers and increasing the Company's share of existing customers' overall
label requirements by meeting their specialized and technical label needs. The
Company's marketing strategy is to emphasize those sectors where Multi-Color's
equipment and expertise distinguish the Company from other label producers. The
Company maintains a marketing staff of nine people who are responsible for
developing innovative solutions, including new labels, for customers' label
needs.
Approximately 54% of the Company's total sales in fiscal 1998 were to
three customers: The Procter & Gamble Company, 26% (divided among six product
categories and three separate buyers); Wm. Wrigley Jr. Company, 14%; and Alvin
Press, 14%. The loss or substantial reduction of the business of any of the
major customers would have a material adverse effect on the Company.
PRINTING OPERATIONS
Multi-Color's printing equipment consists of four rotogravure printing
presses in its Scottsburg plant. All of the Company's presses are capable of
multi-color, high-speed and high-quality graphic printing. The Company also has
a wide variety of cutting and finishing equipment used to process printed
material. The wide range of capabilities and versatility provided by the
Company's equipment permits it to respond rapidly to changing customer needs,
including the development of new products. The Company believes it has
sufficient capacity to meet any expected growth of its products. At March 29,
1998, the existing label backlogs were approximately $3,000,000.
RESEARCH AND DEVELOPMENT
Multi-Color believes research and development of new products helps it
maintain its leading position in the in-mold label business. While the process
for making paper in-mold labels is not patented, Multi-Color believes its
experience and expertise related to the production of in-mold labels have
enabled it to maintain its leadership in the in-mold label and substrate market.
The Company's emphasis is to develop and market new products for
applications where superior technical characteristics are required. Multi-Color
developed and is successfully marketing a range of plastic in-mold labels for
applications in which plastic containers are subjected to more demanding
physical requirements.
Multi-Color's research and development expenditures totaled $447,000 in
fiscal 1998, $246,000 in fiscal 1997 and $141,000 in fiscal 1996.
RAW MATERIALS
Multi-Color purchases proprietary products from a number of printing
suppliers which is common in the printing industry. To prevent potential
disruptions to its manufacturing facilitates, Multi-Color has developed
relationships with more than one supply source for each of its critical raw
materials. Additionally, its raw material suppliers are major corporations, each
demonstrating successful historical performance. Although this should prevent
any long term business interruption due to the inability of obtaining raw
materials, there could be short term manufacturing disruptions during the
customer qualification period for any new raw material source.
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5
COMPETITION
The Company has a large number of competitors in its traditional label
business and three principal competitors in the in-mold label and substrate
business. Some of these competitors have greater financial and other resources
than the Company. Multi-Color could be adversely affected should a competitor
develop labels similar or technologically superior to the Company's in-mold
label. Although price is an important competitive factor in the Company's
business, the Company believes competition is principally dependent upon
quality, service, and technical expertise and experience. Customer service,
quality and qualification requirements present barriers to new entrants into
Multi-Color's markets.
EMPLOYEES
As of March 29, 1998, the Company had 218 employees, of whom 59 were
salaried and 159 were hourly. Multi-Color considers its labor relations to be
good and has not experienced any work stoppages during the previous ten years.
REGULATION
The Company operations are subject to regulation by federal and state
environmental protection agencies.
The United States Food and Drug Administration regulates the raw
materials used in labels for food products. These regulations apply to the
consumer products companies for which Multi-Color produces labels. Multi-Color
uses materials specified by the consumer products companies in producing labels
for food products.
ITEM 2. PROPERTIES
Multi-Color operates two production facilities. The Scottsburg, Indiana
plant has 56,300 square feet and is situated on 14 acres, 30 miles north of
Louisville, Kentucky. The Erlanger, Kentucky facility, housing its Multi-Color
Graphics division and Laser Graphic Systems, Inc., has approximately 12,000
square feet and is located on approximately 3 acres, 10 miles south of
Cincinnati. The Company owns the real estate constituting all of its plant
sites. The land and buildings of all the plant sites are encumbered by mortgages
in favor of the lenders under the Company's credit facility. The Company's
executive offices are located at 205 West Fourth Street, Cincinnati, Ohio in
approximately 5,000 square feet of leased office space. The Company's properties
are in good condition, are well-maintained, and are adequate for the Company's
intended uses. During April, 1998, the Company sold its 300,000 square foot
building located in Cincinnati to Wine Racks Unlimited, a Cincinnati based
manufacturer of wine cellars. The Company is leasing approximately 50,000 square
feet of the Cincinnati plant for warehouse purposes.
ITEM 3. LEGAL PROCEEDINGS
In January 1998, Multi-Color identified various environmental
compliance problems associated with the operation of two presses at its
Scottsburg, Indiana plant. The Company notified the Indiana Department of
Environmental Management of these problems in January 1998. In March 1998,
representatives of Multi-Color and the Indiana Department of Environmental
Management met to discuss the company's disclosure of noncompliance and in May,
1998, the Company submitted a voluntary environmental audit report for this
facility to the State of Indiana. The Indiana Department of Environmental
Management is currently reviewing this disclosure. The Company anticipates this
matter will result in the imposition of penalties and other obligations by the
State of Indiana which, depending upon their significance, could adversely
affect the earnings and financial condition of the Company.
On June 17, 1998, Multi-Color received proposed final findings and
orders from the Director of the Ohio Environmental Protection Agency concerning
certain alleged violations of environmental laws at the Company's Cincinnati
facility which include a proposed civil penalty of $282,700. Multi-Color is
studying these materials and intends to contest them as appropriate.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None during the fourth quarter of the fiscal year ending March 29,
1998.
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PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
The Company's shares trade in the over-the-counter market under the
NASDAQ-NMS symbol LABL. The following table sets forth the high and low sales
prices of the Company's stock ("Common Stock") as reported in the NASDAQ
National Market System for fiscal year 1997 and 1998. These prices may not
necessarily be indicative of any reliable market value.
<TABLE>
<CAPTION>
High Low
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April 1, 1996 through June 30, 1996 $7.25 $4.50
July 1, 1996 through September 29, 1996 $7.13 $4.25
September 30, 1996 through December 29, 1996 $6.38 $5.13
December 30, 1996 through March 30, 1997 $7.00 $5.25
Year Ended March 30, 1997 $7.25 $4.25
March 31, 1997 through June 29, 1997 $7.50 $5.75
June 30, 1997 through September 28, 1997 $8.38 $6.75
September 29, 1997 through December 28, 1997 $7.50 $6.25
December 29, 1997 through March 29, 1998 $10.00 $6.00
Year Ended March 29, 1998 $10.00 $5.75
</TABLE>
As of June 19, 1998, there were approximately 417 shareholders of
record of the Common Stock.
Multi-Color currently intends to retain its earnings to fund the growth
of its business and does not anticipate paying any cash dividends on Common
Stock in the foreseeable future. The Company's financing agreements prohibit the
payment of Common Stock cash dividends. Additionally, the Company is prohibited
from paying dividends on the Common Stock unless all dividends declared on the
Company's Series A Convertible Preferred Stock and Series B Convertible
Preferred Stock have been fully paid.
RECENT SALES OF UNREGISTERED SECURITIES
On January 7, 1998, Gordon B. Bonfield, President and Chief Executive
Officer of the Company, purchased 10,000 shares of Common Stock at $5.36. This
issuance was exempt from registration under the Securities Act of 1933 pursuant
to the exemption provided by Section 4(2) of that Act.
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ITEM 6. SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
Fiscal Year Ended (1)
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MARCH 29 March 30 March 31 April 2 April 3
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1998 (5) 1997 1996 1995 (2) 1994 (3)
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(In thousands, except share amounts)
<S> <C> <C> <C> <C> <C>
Net sales $47,576 $48,143 $55,375 $61,777 $65,403
Gross profit 4,840 8,267 8,508 2,803 2,558
Operating income (loss) (2,455) 2,579 2,631 (7,168) (5,603)
Income (loss) before extraordinary item (4,071) 1,627 1,191 (8,523) (4,335)
Extraordinary item - - - 225 -
Net Income (loss) (4,071) 1,627 1,191 (8,748) (4,335)
Diluted earnings (loss) per share (2.00) 0.58 0.55 (4.03) (2.02)
Weighted average shares outstanding - diluted 2,172 2,821 2,178 2,169 2,151
Preferred dividends 279 261 - - -
Working capital $(1,827) $ 661 $ (3) $(17,031)(4) $ 2,754
Total assets 30,854 28,487 30,454 35,959 42,121
Short-term debt 4,782 3,411 2,902 19,898(4) 1,395
Long-term debt 11,208 9,902 14,873 8 15,404
Shareholders' investment 4,665 8,907 4,920 2,998 11,818
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</TABLE>
(1) Multi-Color maintains a fiscal year of 52 or 53 weeks beginning on the
Monday nearest to March 31. Fiscal year 1994 was a 53 week fiscal year. All
other fiscal years set forth herein are 52 weeks.
(2) Fiscal year 1995 results includes a write down of $3,800 on certain
equipment and an extraordinary charge of $225 related to prepayment fees
associated with the previous financing agreement.
(3) Fiscal year 1994 results includes a restructuring charge of $1,777.
(4) Includes $14,700 of long-term debt which was subject to acceleration and
therefore classified as current.
(5) Fiscal year 1998 results includes a restructuring charge of $315, a write
down of $438 on certain property and a $668 loss on sale of assets.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion and analysis should be read in conjunction
with the Company's Consolidated Financial Statements and notes thereto appearing
elsewhere herein.
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RESULTS OF OPERATIONS
The following table shows, for the periods indicated, certain
components of the Company's consolidated statements of operations as a
percentage of net sales and the percentage changes in the dollar amounts of such
components compared to the indicated prior period.
<TABLE>
<CAPTION>
Period to Period Change
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FISCAL 1997 Fiscal 1996
Percentage of Net Sales TO to
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1998 1997 1996 FISCAL 1998 Fiscal 1997
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Net Sales 100.0% 100.0% 100.0% (1.2%) (13.1%)
Cost of Goods Sold 89.8% 82.8% 84.6% 7.2% (14.9%)
Gross Profit 10.2% 17.2% 15.4% (41.4%) (2.8%)
Selling, General & Administrative Expenses 13.8% 11.8% 10.4% 15.0% (1.3%)
Restructuring Charge .7% - - 100.0% -
Impairment Loss on Long-Lived Assets 1.0% - .2% 100.0% 100.0%
Operating Income (Loss) (5.3%) 5.4% 4.8% (195.2%) (2.0%)
Interest Expense 2.1% 2.1% 2.6% 2.1% (28.9%)
Other 1.2% (.1%) .1% (1066.6%) (211.0%)
Income (Loss) Before Taxes (8.6%) 3.4% 2.1% (350.2%) 41.0%
Credit for income taxes - - (.1%) - (100.0%)
Net Income (Loss) (8.6%) 3.4% 2.2% (350.2%) 36.6%
</TABLE>
COMPARISON OF FISCAL YEARS ENDED MARCH 29, 1998 AND MARCH 30, 1997
<TABLE>
<CAPTION>
1998 1997 Change % Change
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<S> <C> <C> <C> <C>
Net Sales $47,575,608 $48,142,920 $(567,312) (1.2%)
</TABLE>
Due to the Company phasing out certain categories of prime labels, the
sales decline of 1.2% was anticipated. Prime label sales declined $3,583,000 to
approximately $8,968,000 in 1998. The decline in prime label sales was the
result of the Company phasing out sales to one major customer as the
profitability did not meet the minimum returns established by management. Prime
labels are labels applied to the consumer-product packaging after the package is
manufactured. Sales of in-mold labels and cylinders increased 8.5% or
approximately $3,000,000 over 1997 levels. The Company has confidence in the
long-term growth of the in-mold label and rotogravure cylinder markets which is
supported by the expansion programs initiated during 1998 at the Scottsburg
label and Erlanger cylinder manufacturing facilities.
<TABLE>
<CAPTION>
1998 1997 Change % Change
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<S> <C> <C> <C> <C>
Gross Profit $4,840,344 $8,266,949 $(3,426,605) (41.4%)
As a % of Sales 10.2% 17.2% (7.0%) -
</TABLE>
In support of the expected growth of in-mold label sales, during 1998,
the Company initiated an expansion program at the Scottsburg plant which doubled
its printing capacity. The Company installed a refurbished rotogravure press and
purchased a new Uteco Italian rotogravure press. Additionally, this expansion
program was initiated to give Multi-Color sufficient printing capacity allowing
the Company to close its Cincinnati facility.
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The 1998 decline in gross profit was primarily the result of a delay of
the start-up of the new presses at Scottsburg and the resulting continuing
fiscal 1998 operation of the Cincinnati plant which was scheduled to be shut
down during the latter part of the second quarter. These two events combined to
increase expenses and contributed to the majority of the reduction of gross
profit. Although the Company was successful in selling the Cincinnati plant on
March 31, 1998, the facility negatively impacted 1998 results by approximately
$720,000.
Additionally, the Company incurred one-time-only charges of
approximately $1,100,000 during the fourth quarter and had to curtail production
on two presses at its Scottsburg plant during the fourth quarter due to
environmental compliance problems. Both of these events negatively impacted the
1998 gross profit results.
<TABLE>
<CAPTION>
1998 1997 Change % Change
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<S> <C> <C> <C> <C>
Selling, General
Administrative Expenses $6,542,759 $5,688,392 $854,367 15.0%
As a % of Sales 13.8% 11.8% 2.0% -
</TABLE>
Selling, general, and administrative expenses increased $854,000 in
fiscal 1998. The increase was attributable to the Company accruing a proposed
final findings and orders from the Ohio Environmental Protection Agency which
included a civil penalty, severance agreement charges, utilization of an outside
consultant to assist in the start-up of the Scottsburg expansion, increased
legal expenses, and increased bad debt expense.
<TABLE>
<CAPTION>
1998 1997 Change % Change
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<S> <C> <C> <C> <C>
Restructuring
Charge $314,599 $ - $314,599 100.0%
</TABLE>
During the second quarter, the Company accrued a restructuring charge
of $310,000 for the previously announced closing of the Cincinnati printing
plant to handle severance and benefit obligations associated with the plant
closing. An additional $4,599 was accrued during the fourth quarter of fiscal
1998 resulting in a total restructuring charge of $314,599.
<TABLE>
<CAPTION>
1998 1997 Change % Change
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<S> <C> <C> <C> <C>
Impairment Loss
Long-Lived Assets $438,459 $ - $438,459 100.0%
</TABLE>
The 1998 impairment loss on long-lived assets represents the loss on
sale of the Cincinnati plant which was completed two days subsequent to the end
of the fiscal year on March 31, 1998. The amount detailed represents the
difference between the basis in the property and the selling price.
<TABLE>
<CAPTION>
1998 1997 Change % Change
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<S> <C> <C> <C> <C>
Interest Expense $1,032,579 $1,011,709 $20,870 2.1%
</TABLE>
Interest expense increased due to higher average borrowings on the
Company's working capital line offset by the retirement of the Cincinnati
Industrial Revenue Bonds.
The Company recorded no amounts for income taxes in 1998 as it
anticipates utilizing net operating loss carryforward benefits generated in
prior periods. There is no net deferred tax balance.
The Company recorded a net loss for 1998 of $(4,071,000) or a decrease
of $(5,698,000) from the net profit of $1,627,000 in 1997, due to the factors
discussed above.
COMPARISON OF FISCAL YEARS ENDED MARCH 30, 1997 AND MARCH 31, 1996
<TABLE>
<CAPTION>
1997 1996 Change % Change
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<S> <C> <C> <C> <C>
Net Sales $48,142,920 $55,374,711 $(7,231,791) (13.1%)
</TABLE>
The 1997 decrease in sales resulted from the combination of the
anticipated decline in prime label sales and a change in mix in the in-mold
label market resulting in a small revenue decline offset by an increase in
cylinder sales. Prime label sales declined $6,348,000 to approximately
$12,552,000 in 1997. The decline in prime label business was the result of the
Company eliminating some unprofitable prime label activities and the reduced
sales to one major customer as the existing profitability did not meet the
expected returns established by management. The
<PAGE> 10
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Company is continuing its relationship with this customer and was awarded some
new business which met the profitability standards. The Company continues to
take steps to improve the profitability of its prime label business and may
experience further sales declines as a result of these efforts.
Although 1997 unit volume was consistent with 1996, the Company's
in-mold label sales decreased by $1,258,000 to approximately $32,742,000 in
1997. The decrease resulted from a change in mix in the in-mold market resulting
in a small revenue decline; however, the Company has confidence in the long-term
growth of the in-mold market. To accommodate this expected sales growth, the
Company is doubling its printing capacity and adding both a new short-run,
Italian-made press and a rebuilt press at the Scottsburg facility.
Sales at the Graphics division increased $394,000 due to the division
now providing the majority of the cylinder requirements for the Company's label
customers. The Company is currently marketing its cylinder manufacturing
capabilities externally to increase sales for this division. In anticipation of
increased sales, the Company started a new subsidiary with Think Laboratories,
Inc. of Kashiwa, Japan, the ("Think Laboratories subsidiary") through a
corporation owned 80% by the Company and entitled Laser Graphic Systems,
Incorporated. With this subsidiary, the cylinder making capacity of the Graphics
division will be doubled.
<TABLE>
<CAPTION>
1997 1996 Change % Change
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<S> <C> <C> <C> <C>
Gross Profit $8,266,949 $8,507,987 $(241,038) (2.8%)
As a % of Sales 17.2% 15.4% 1.8% -
</TABLE>
The 1997 gross profit percentage of 17.2% represents the highest gross
profit percentage in the Company's history. The Company's success at improving
its consolidated gross profit percentage with lower sales volumes supports
management's commitment to lowering the Company's cost structure. Gross profit
was favorably impacted by consistent levels of in-mold label sales which
generate higher margins than prime label sales, coupled with improved efficiency
at the Scottsburg and Graphics divisions. Gross profit was also favorably
impacted by the Company continuing its cost-cutting programs in 1997 at the
Cincinnati division to handle the lower levels of prime label sales.
Additionally, the 1996 gross profit was favorably impacted by a one-time
$300,000 "out of period" supplier claim settlement.
With lower sales volumes in 1997 than in 1996, the 1997 Cincinnati
gross profit performance was down slightly from 1996 gross profit performance.
This resulted from a different mix of products being produced at Cincinnati in
1997 due to the successful transfer of all gravure in-mold label production to
the Scottsburg plant during 1996. The Company has continued its cost containment
programs at the Cincinnati plant to handle expected lower levels of prime label
sales and is focusing on growing those businesses that generate a positive
contribution to gross profit.
Scottsburg's gross profit increased over 1996 and was favorably
impacted by higher sales volumes. Although an improvement in gross profit was
realized, there was a slight decline in gross profit percentage due to an
increase in employment to handle the production from the installation of the
rebuilt and new Italian rotogravure presses. Additionally, during 1996, the
division benefited from a one-time $300,000 "out of period" supplier claim
settlement.
The Graphics division realized an increase of $523,000 in 1997 gross
profit over 1996. This was the result of the division providing the majority of
the cylinder requirements for the Company's label customers. With the Think
Laboratories subsidiary, the capacity of the Graphics division will be doubled
and the Company is currently seeking new markets for its cylinder making
capabilities to increase sales for this division.
<TABLE>
<CAPTION>
1997 1996 Change % Change
- ------------------------------ ----------------- --------------------- ----------------------- ---------------------
<S> <C> <C> <C> <C>
Selling, General and
Administrative Expenses $5,688,392 $5,764,988 $(76,596) (1.3%)
As a % of Sales 11.8% 10.4% 1.4% -
</TABLE>
Selling, general, and administrative expense decreased $77,000. This
decrease was attributable to the Company no longer using an outside consulting
firm during fiscal 1996 to assist with its equity financing offset by additional
staffing to handle the Scottsburg plant expansion and the hiring of additional
in-mold label sales personnel during fiscal 1997 to assist with the expected
future growth of in-mold label sales.
<PAGE> 11
11
<TABLE>
<CAPTION>
1997 1996 Change % Change
- ------------------------------ ----------------- --------------------- ----------------------- ---------------------
<S> <C> <C> <C> <C>
Impairment Loss on
Long-Lived Assets $ - $111,698 $(111,698) (100.0%)
</TABLE>
In 1995, the Company recorded a $3,800,000 impairment loss due to the
recurring losses at the Cincinnati location. This impairment loss reduced the
carrying value of certain equipment at the Cincinnati location to fair value as
generally determined by an independent appraiser. An overall management plan to
restore the Cincinnati operations to profitability was initiated in 1995. This
plan called for the elimination of unprofitable business activities in the
conventional label division and the rationalization of the overhead cost
structure to align it with the remaining business. While the remaining business
was expected to be profitable, projected sales levels were expected to be lower.
These expected lower sales levels resulted in the corresponding recording of the
1995 impairment loss against printing and finishing equipment. The additional
impairment loss recorded in 1996 on printing equipment reflects management's
ongoing assessment of expected sales levels, expected utilization of specific
assets in meeting those sales levels, and the corresponding carrying value and
fair value of such assets as established by an independent appraisal. The
conclusion of this assessment in 1997 was that no additional impairment loss was
required.
<TABLE>
<CAPTION>
1997 1996 Change % Change
- ------------------------------ ----------------- --------------------- ----------------------- ---------------------
<S> <C> <C> <C> <C>
Interest Expense $1,011,709 $1,423,022 $(411,313) (28.9%)
</TABLE>
Interest expense decreased due to principal payments on the Company's
Industrial Revenue Bonds.
The Company recorded no amounts for income taxes in 1997 as it
anticipates utilizing net operating loss carryforward benefits generated in
prior periods. There is no net deferred tax balance.
The Company recorded a net profit for 1997 of $1,627,000 or an increase
of $436,000 from the net profit of $1,191,000 in 1996, due to the factors
discussed above.
Liquidity and Capital Resources
The Company is dependent on availability under its Revolving Credit
Agreement, approximately $1,600,000 at June 22, 1998, and its operations to
provide for cash needs. The Company entered into a new credit agreement with PNC
Bank, Ohio, National Association and Comerica Bank on June 22, 1998 which is a
restatement of its prior credit agreements. The earlier credit agreements were
amended several times between 1994 and 1998 to reflect, among other things, the
Company's inability to meet certain financial covenants, including cash flow
coverage ratios, leverage ratios and current ratios, and to reflect equity
infusions and changes in the Company's results of operations during that time
period. The new credit agreement provides for available borrowings under a
revolving line of credit up to a maximum of $5,000,000, subject to certain
borrowing base limitations. The new credit agreement also allows $3,500,000 of
capital expenditures, including an expansion program for a new facility in
Scottsburg once certain performance criteria are met. Under the terms of the new
credit agreement, the Company is subject to a number of financial covenants.
Additionally, the Company is prohibited from paying deferred dividends on its
outstanding preferred stock and is limited in its ability to borrow other funds
until certain performance criteria are met. The amount of accrued but unpaid
preferred dividends was $139,704 at June 22, 1998. The new credit agreement also
requires the Company to continue to place $1,000,000 per year into the sinking
fund to be available to retire other debt. The existing sinking fund balance,
plus fifty percent of the fiscal 1999 contributions, will provide the Company
with the funds for the Scottsburg expansion if the Company satisfies the
performance criteria allowing it to begin the expansion project.
In fiscal 1998, cash provided by operating activities was $1,300,000
compared to $2,600,000 in 1997. The decrease was primarily due to an increase in
accounts payable and accrued liabilities. The Company had a deficit in working
capital of $(1,827,000) at the end of fiscal 1998 as compared to a working
capital surplus of $661,000 at the end of fiscal 1997. The reductions in working
capital were primarily attributable to the increase in accounts payable and
accrued liabilities. At June 22, 1998, the Company was in compliance with its
loan covenants and current in its principal and interest payments and all debt.
During fiscal 1999, the Company has no scheduled material principal
payments under any of its debt obligations. Accordingly, debt service
requirements for fiscal 1999 are expected to be approximately $2,200,000. The
Company intends to make capital expenditures other than those in connection with
any expansion of its Scottsburg facility of approximately $1,000,000 during
fiscal 1999. The Company believes that cash flow from
<PAGE> 12
12
operations and availability under the revolving line of credit are sufficient to
meet its capital requirements for fiscal 1999.
Inflation
The Company does not believe that its operations have been materially
affected by inflation.
Computer Systems - Year 2000 Impact
The Company has begun to implement a Year 2000 compliance program
designed to ensure that the Company's computer systems and applications will
properly manage dates beyond 1999. Based on the work to date, it believes it can
complete the program successfully by October, 1998. Multi-Color believes the
costs of modifying non-compliant computer systems and applications and the
implementation of software enhancements are primarily purchased software costs
which are immaterial. The Company intends to redeploy existing information
technology resources and, thus, does not expect to incur significant incremental
costs to implement its Year 2000 program. However, there can be no assurance
that the systems of other parties, upon which the Company also relies will be
modified on a timely basis. The Company's business, financial condition, or
results of operations could be materially adversely affected by the failure of
its systems and applications or those operated by other parties to properly
operate or manage dates beyond 1999.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Index to Consolidated Financial Statements and Financial Statement
Schedules
CONSOLIDATED FINANCIAL STATEMENTS
Report of Independent Certified Public Accountants ........................13
Consolidated Statements of Operations for the years ended
March 29, 1998; March 30, 1997 and March 31, 1996....................14
Consolidated Balance Sheets as of March 29, 1998 and March 30, 1997.........15
Consolidated Statements of Shareholders' Investment for the years ended
March 29, 1998; March 30, 1997 and March 31, 1996....................16
Consolidated Statements of Cash Flows for the years ended
March 29, 1998; March 30, 1997 and March 31, 1996....................17
Notes to Consolidated Financial Statements...............................18-29
All Financial Statement Schedules have been omitted because either they
are not required or the information is included in the financial statements and
notes thereto.
<PAGE> 13
13
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Shareholders and Directors of Multi-Color Corporation:
We have audited the accompanying consolidated balance sheets of
Multi-Color Corporation (an Ohio corporation) as of March 29, 1998 and March 30,
1997, and the related consolidated statements of operations, shareholders'
investment, cash flows for each of the three years ended March 29, 1998. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Multi-Color
Corporation as of March 29, 1998 and March 30, 1997, and the consolidated
results of their operations and their cash flows for the three years then ended
in conformity with generally accepted accounting principles.
GRANT THORNTON LLP
Cincinnati, Ohio
May 8, 1998, except for Note 12(b) as to which the date is June 17, 1998 and
Note 15 as to which the date is June 22, 1998.
<PAGE> 14
14
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Years Ended March 29, 1998, March 30, 1997 and March 31, 1996
<TABLE>
<CAPTION>
1998 1997 1996
- ------------------------------------------------------------------------------ -------------- ------------- --------------
<S> <C> <C> <C>
Net Sales $47,575,608 $48,142,920 $ 55,374,711
Cost of goods sold 42,735,264 39,875,971 46,866,724
- ------------------------------------------------------------------------------ -------------- ------------- --------------
GROSS PROFIT 4,840,344 8,266,949 8,507,987
Selling, general and administrative expenses 6,542,759 5,688,392 5,764,988
Restructuring charge (Note 14) 314,599 - -
Impairment loss on long-lived assets (Note 2(f))
438,459 - 111,698
- ------------------------------------------------------------------------------ -------------- ------------- --------------
OPERATING INCOME (LOSS) (2,455,473) 2,578,557 2,631,301
Interest expense 1,032,579 1,011,709 1,423,022
Minority interest in losses of subsidiary (Note 11)
(84,889) (13,424) -
Other (income) expense, net (primarily loss on sale of assets) 667,831 (46,886) 54,311
- ------------------------------------------------------------------------------ -------------- ------------- --------------
INCOME (LOSS) BEFORE CREDIT FOR INCOME TAXES (4,070,994) 1,627,158 1,153,968
Credit for income taxes (Note 5) - - (37,000)
- ------------------------------------------------------------------------------ -------------- ------------- --------------
NET INCOME (LOSS) $(4,070,994) $1,627,158 $ 1,190,968
- ------------------------------------------------------------------------------ -------------- ------------- --------------
Weighted average shares and equivalents outstanding:
Basic 2,172,482 2,169,937 2,172,569
Diluted 2,172,482 2,821,300 2,177,928
- ------------------------------------------------------------------------------ -------------- ------------- --------------
Basic earnings (loss) per common share $(2.00) $0.63 $0.55
- ------------------------------------------------------------------------------ -------------- ------------- --------------
Diluted earnings (loss) per common and common equivalent share $(2.00) $0.58 $0.55
- ------------------------------------------------------------------------------ -------------- ------------- --------------
</TABLE>
THE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS ARE AN INTEGRAL PART OF THESE
STATEMENTS.
<PAGE> 15
15
CONSOLIDATED BALANCE SHEETS
As of March 29, 1998 and March 30, 1997
<TABLE>
<CAPTION>
1998 1997
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents (Note 2(d)) $ 12,352 $ 80,780
Accounts receivable, net:
Trade (Notes 3 and 9) 4,605,268 2,865,652
Other 76,538 383,515
Note receivable (Note 8) 129,709 118,585
Inventories (Notes 2(e) and 3) 5,022,985 5,092,074
Deferred tax benefit (Note 5) 475,800 240,675
Prepaid expenses, supplies, pension and other 164,598 91,628
Refundable income taxes 29,944 45,818
Property held for sale, net (Notes 2(g) and 15) 905,415 -
- ------------------------------------------------------------------------------------------------------------------------------
Total current assets 11,422,609 8,918,727
PROPERTY, PLANT AND EQUIPMENT, NET (NOTES 2(f) AND 3) 18,619,681 19,083,988
PROPERTY HELD FOR SALE, NET (NOTE 2(g)) - 144,248
SINKING FUND DEPOSITS (NOTE 3) 620,648 74,451
DEFERRED CHARGES, NET 48,240 2,652
NOTE RECEIVABLE (NOTE 8) 42,513 162,685
NOTE RECEIVABLE FROM OFFICER/SHAREHOLDER (NOTE 8) 100,000 100,000
- ------------------------------------------------------------------------------------------------------------------------------
Total assets $ 30,853,691 $ 28,486,751
===============================================================================================================================
LIABILITIES AND SHAREHOLDERS' INVESTMENT
CURRENT LIABILITIES:
Short-term debt (Note 3) $ 3,664,436 $ 2,293,794
Current portion of long-term debt (Note 3) 1,024,256 1,003,133
Current portion of capital lease obligations (Note 10) 93,316 114,497
Accounts payable 6,968,195 3,631,548
Accrued liabilities:
Payroll benefits and related taxes (Note 4(a)) 866,353 671,257
Vacations 10,000 115,051
Real estate and personal property taxes 325,917 348,430
Interest and other 297,362 79,932
- -------------------------------------------------------------------------------------------------------------------------------
Total current liabilities 13,249,835 8,257,642
LONG-TERM DEBT (NOTE 3) 11,000,000 9,600,000
CAPITAL LEASE OBLIGATIONS (NOTE 10) 207,980 301,687
DEFERRED INCOME TAXES (NOTE 5) 475,800 240,675
DEFERRED COMPENSATION (NOTE 4(c)) 853,760 691,920
PENSION LIABILITY (NOTE 4(a)) - 1,363
- -------------------------------------------------------------------------------------------------------------------------------
Total liabilities 25,787,375 19,093,287
- -------------------------------------------------------------------------------------------------------------------------------
MINORITY INTEREST (NOTE 11) 401,687 486,576
- -------------------------------------------------------------------------------------------------------------------------------
COMMITMENTS AND CONTINGENCIES (NOTE 12)
SHAREHOLDERS' INVESTMENT (NOTES 3, 7, AND 13):
Preferred stock, no par value; 1,000,000 shares authorized, - 13,242 shares
issued at March 29, 1998 and March 30, 1997 (aggregate liquidation
preference of $529,666) Series B 529,666 529,666
- 52,500 shares issued at March 29, 1998 and March 30, 1997 (aggregate
liquidation preference of $2,625,000) Series A 2,418,303 2,418,303
Common stock, no par value; 10,000,000 shares authorized 2,182,060 and
2,180,519 shares issued and outstanding at March 29, 1998 and March 30, 1997 218,206 218,052
Paid-in capital 9,191,952 9,174,645
Accumulated deficit (7,693,498) (3,343,096)
Excess of additional pension liability over unrecognized prior service cost (Note 4(a)) - (45,682)
Treasury stock, at cost; 10,900 shares at March 30, 1997 - (45,000)
- -------------------------------------------------------------------------------------------------------------------------------
Total shareholders' investment 4,664,629 8,906,888
- -------------------------------------------------------------------------------------------------------------------------------
Total liabilities and shareholders' investment $ 30,853,691 $ 28,486,751
===============================================================================================================================
</TABLE>
THE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS ARE AN INTEGRAL PART OF THESE
STATEMENTS.
<PAGE> 16
16
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' INVESTMENT
For the Years Ended March 29, 1998, March 30, 1997 and March 31, 1996
<TABLE>
<CAPTION>
Preferred Stock Common Stock
--------------- ------------
Number of Number of Additional
Shares Shares Paid-In Accumulated Pension Treasury
Outstanding Amount Outstanding Amount Capital Deficit Liability Stock Total
- ------------------------- ----------- --------- ----------- --------- ---------- ------------- ---------- --------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE,
April 2, 1995 - $ - 2,172,569 $217,257 $9,140,334 $(5,900,413) $(459,113) $ - $ 2,998,065
ADD (DEDUCT):
Net income - - - - - 1,190,968 - - 1,190,968
Conversion of convertible
debt to preferred stock 13,242 529,666 - - - - - - 529,666
Change in additional
pension liability - - - - - - 201,344 - 201,344
- ------------------------- ----------- --------- ----------- --------- ---------- ------------- ---------- --------- -----------
BALANCE,
March 31, 1996 13,242 529,666 2,172,569 217,257 9,140,334 (4,709,445) (257,769) - 4,920,043
ADD (DEDUCT):
Net income - - - - - 1,627,158 - - 1,627,158
Preferred stock issued 52,500 2,418,303 - - - - - - 2,418,303
Purchase of treasury stock - - - - - - - (45,000) (45,000)
Issuance of common stock - - 7,950 795 34,311 - - - 35,106
Preferred dividends
declared - - - - - (260,809) - - (260,809)
Change in additional
pension liability - - - - - - 212,087 - 212,087
- ------------------------- ----------- --------- ----------- --------- ---------- ------------- ---------- --------- -----------
BALANCE,
March 30, 1997 65,742 2,947,969 2,180,519 218,052 9,174,645 (3,343,096) (45,682) (45,000) 8,906,888
ADD (DEDUCT):
Net loss - - - - - (4,070,994) - - (4,070,994)
Issuance and retirement
of treasury stock - - (909) (91) 8,691 - - 45,000 53,600
Preferred dividends
declared - - - - - (279,408) - - (279,408)
Issuance of common stock - - 2,450 245 8,616 - - - 8,861
Change in additional
pension liability - - - - - - 45,682 - 45,682
- ------------------------- ----------- --------- ----------- --------- ---------- ------------- ---------- --------- -----------
Balance,
March 29, 1998 65,742 $2,947,969 2,182,060 $218,206 $9,191,952 $(7,693,498) $ - $ - $ 4,664,629
- ------------------------- ----------- --------- ----------- --------- ---------- ------------- ---------- --------- -----------
</TABLE>
THE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS ARE AN INTEGRAL PART OF THESE
STATEMENTS.
<PAGE> 17
17
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Years Ended March 29, 1998, March 30, 1997 and March 31, 1996
<TABLE>
<CAPTION>
1998 1997 1996
- ------------------------------------------------------------------------------------ -------------- -------------- ---------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $(4,070,994) $ 1,627,158 $ 1,190,968
Adjustments to reconcile net income (loss) to net
cash provided by (used in) operating activities:
Depreciation 1,995,528 1,739,065 1,890,120
Amortization 38,000 53,234 86,780
Minority interest in losses of subsidiary (84,889) (13,424) -
Net (gain) loss on disposal of equipment 546,358 (186) (48,667)
Interest expensed on convertible debt - - 29,666
Increase in non-current deferred compensation 161,840 88,781 73,514
Increase in non-current pension obligation, net of equity charge 44,319 95,884 99,015
Decrease in notes receivable 109,048 99,697 108,683
Net (increase) decrease in accounts receivable, inventories,
prepaid expenses, supplies, and pension and other and refundable income taxes (1,425,994) 798,108 5,139,845
Net increase (decrease) in accounts payable, accrued liabilities
(excluding restructuring charge) 3,551,758 (1,935,996) (4,918,973)
Impairment loss on long-lived assets 438,459 - 111,698
- ------------------------------------------------------------------------------------ -------------- -------------- ---------------
Net cash provided by operating activities 1,303,433 2,552,321 3,762,649
- ------------------------------------------------------------------------------------ -------------- -------------- ---------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (4,312,323) (3,051,607) (931,085)
Proceeds from sale of equipment 1,035,118 352,415 1,117,700
- ------------------------------------------------------------------------------------ -------------- -------------- ---------------
Net cash provided by (used in) investing activities (3,277,205) (2,699,192) 186,615
- ------------------------------------------------------------------------------------ -------------- -------------- ---------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Increase (decrease) in revolving line of credit, net 1,370,642 402,240 (2,213,347)
Sinking fund withdrawals (payments) (546,197) 2,162,488 (1,836,939)
Proceeds from sale (purchase) of treasury stock, net 53,600 (45,000) -
Proceeds from issuance of common stock, net 8,861 35,106 -
Proceeds from issuance of preferred stock, net - 2,418,303 -
Proceeds from issuance of long-term debt 3,034,321 - -
Repayment of long-term debt (1,613,198) (4,901,960) (295,997)
Preferred stock dividend payments (209,557) (260,809) -
Proceeds from minority shareholder of subsidiary - 500,000 -
Capitalized bank fees (78,240) - -
Repayment of capital lease obligation (114,888) (123,166) (79,065)
Proceeds from issuance of convertible debt - - 500,000
- ------------------------------------------------------------------------------------ -------------- -------------- ---------------
Net cash provided by (used in) financing activities 1,905,344 187,202 (3,925,348)
- ------------------------------------------------------------------------------------ -------------- -------------- ---------------
Net increase (decrease) in cash and cash equivalents (68,428) 40,331 23,916
CASH AND CASH EQUIVALENTS, beginning of year 80,780 40,449 16,533
- ------------------------------------------------------------------------------------ -------------- -------------- ---------------
CASH AND CASH EQUIVALENTS, end of year $ 12,352 $ 80,780 $ 40,449
- ------------------------------------------------------------------------------------ -------------- -------------- ---------------
Supplemental Disclosures of Cash Flow Information:
Interest paid $ 1,084,318 $ 1,079,629 $ 1,389,555
Income taxes paid $ 37,195 $ - $ 43,574
Supplemental Disclosure of Non Cash Activities:
Increase in property, plant and equipment and capital lease obligation $ - $ 160,415 $ 458,000
Increase in non-current deferred compensation and decease in accrued liabilities $ - $ - $ 529,625
- ------------------------------------------------------------------------------------ -------------- -------------- ---------------
</TABLE>
THE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS ARE AN INTEGRAL PART OF THESE
STATEMENTS.
<PAGE> 18
18
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 29, 1998, March 30, 1997 and March 31, 1996
(1) THE COMPANY
Multi-Color Corporation (the Company), headquartered in Cincinnati,
Ohio, primarily supplies printed labels and engravings to various name brand
consumer products companies located throughout the United States. The Company
has plants located in Cincinnati, Ohio, Scottsburg, Indiana and Erlanger,
Kentucky.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) FISCAL YEAR
The fiscal year of the Company commences on the Monday closest to March
31. References to fiscal 1998, 1997, and 1996 are for the fiscal years ended
March 29, 1998, March 30, 1997 and March 31, 1996, respectively.
(b) PRINCIPLES OF CONSOLIDATION
The consolidated financials statements include the accounts of the
Company and its majority-owned subsidiary (Note 11). All significant
intercompany transactions have been eliminated.
(c) REVENUE RECOGNITION
Sales and related costs of goods sold are recognized upon shipment to
the customers.
(d) CASH AND CASH EQUIVALENTS
Cash and cash equivalents include operating cash accounts and money
market funds.
(e) INVENTORIES
Inventories are stated at the lower of FIFO (first-in, first-out) cost
or market. Inventories as of year-end consisted of the following:
<TABLE>
<CAPTION>
1998 1997
- ----------------------------------------------------------------------------------------------
<S> <C> <C>
Finished goods $2,564,039 $2,801,622
Work-in-process 739,105 641,487
Raw materials 1,719,841 1,648,965
- ----------------------------------------------------------------------------------------------
$5,022,985 $5,092,074
- ----------------------------------------------------------------------------------------------
</TABLE>
(f) PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consisted of the following as of
year-end:
<TABLE>
<CAPTION>
1998 1997
- -------------------------------------------------------------------------------------------
<S> <C> <C>
Land and buildings $ 2,976,900 $ 4,026,842
Machinery and equipment 24,742,748 25,478,077
Furniture and fixtures 916,632 1,006,120
Construction in progress 366,413 2,954,688
- -------------------------------------------------------------------------------------------
29,002,693 33,465,727
Accumulated depreciation (10,383,012) (14,381,739)
- -------------------------------------------------------------------------------------------
$ 18,619,681 $19,083,988
- -------------------------------------------------------------------------------------------
</TABLE>
Property, plant and equipment are stated at cost. In recognition of the
losses experienced by the Company at the Cincinnati location in prior years, the
Company recorded a $3,800,000 impairment loss in 1995 on certain long-lived
assets at the Cincinnati location to reduce the carrying cost to the fair value
as generally determined by an independent appraiser. Additional impairment
losses of $438,000 and $112,000 were recorded in 1998 and 1996, respectively on
the Cincinnati location's assets, while assets with an assigned impairment value
of $2,038,000, $246,000 and $677,000 were either sold or disposed of in 1998,
1997 and 1996, respectively.
Depreciation is calculated using the straight-line method over the
estimated useful lives of the assets, as follows:
Building..............................20-30 years
Machinery and equipment................3-15 years
Furniture and fixtures.................5-10 years
<PAGE> 19
19
(g) PROPERTY HELD FOR SALE
The Company has made available for sale certain property considered by
management to be excess and no longer necessary for the operations of the
Company. Accordingly, this property, net of accumulated depreciation of $950,878
and $296,391 and impairment losses of $438,000 and $79,178 at March 29, 1998 and
March 30, 1997, respectively, is classified as property held for sale. The
aggregate carrying values of such property are periodically reviewed and are
stated at the lower of cost or net realizable value (See also Note 15).
(h) DEFERRED CHARGES
Deferred charges, net, consist primarily of costs associated with the
Scottsburg Industrial Revenue Bonds issued in 1998 which are amortized over the
term of the agreement (Note 3).
(i) INCOME TAXES
Deferred income tax assets and liabilities are provided for temporary
differences between the tax basis and reported amounts of assets and liabilities
that will result in taxable or deductible amounts in future years.
(j) EARNINGS (LOSS) PER COMMON SHARE
The computation of basic earnings (loss) per common share is based upon
the weighted average number of common shares outstanding during the period.
Diluted earnings (loss) per common share is based upon the weighted average
number of common shares outstanding during the period plus, in periods in which
they have a dilutive effect, the effect of common shares contingently issuable,
primarily from stock options and Series A & B convertible preferred stock.
In the third quarter of 1998, the Company adopted Statement of
Financial Accounting Standards No. 128, Earnings Per Share ("SFAS 128") . SFAS
128 changed the computation, presentation and disclosure requirements for
earnings per share ("EPS"). Under SFAS 128, EPS is presented as basic earnings
per share ("basic EPS") and diluted earnings per share ("diluted EPS") and
replaces the presentation of primary EPS and fully diluted EPS. The adoption of
SFAS 128 resulted in the restatement of earnings per share for all periods
presented in the Company's consolidated financial statements.
The following is a reconciliation of the number of shares used in the
basic EPS and diluted EPS computations:
<TABLE>
<CAPTION>
1998 1997 1996
---------------------------- ---------------------------- --------------------------
PER SHARE Per Share Per Share
SHARES AMOUNT Shares Amount Shares Amount
------------ ------------ ----------- ------------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Basic EPS 2,172,482 $(2.00) 2,169,937 $0.63 2,172,569 $0.55
Effect of dilutive
stock options - - 40,097 (0.01) 4,995 -
Convertible shares - - 611,266 (0.04) 364 -
------------ ------------ ----------- ------------- ----------- -----------
Diluted EPS 2,172,482 $(2.00) 2,821,300 $0.58 2,177,928 $0.55
============ ============ =========== ============= =========== ===========
</TABLE>
Preferred stock dividends of $279,408 and $260,809 in fiscal 1998 and
1997, respectively, have been added to the net loss or deducted from the net
income generated in fiscal 1998 and 1997, respectively, to arrive at the
loss/income available to common stockholders for the calculation of basic EPS.
Common stock equivalents of approximately 701,630 shares, resulting from stock
options and convertible shares, were excluded from the fiscal 1998 computation
of diluted EPS because to do so would have been antidilutive.
(k) ADVERTISING COSTS
Advertising costs are charged to expense as incurred. Expenses are
minimal for the three fiscal years ended March 29, 1998.
(l) RESEARCH AND DEVELOPMENT COSTS
Research and development costs are charged to expense as incurred.
Expenses are $447,000, $246,000 and $141,000 for 1998, 1997 and 1996,
respectively.
<PAGE> 20
20
(m) STOCK-BASED COMPENSATION
The provisions of SFAS No. 123 "Accounting for Stock-Based
Compensation" are effective for the Company in 1997. This recent standard
requires that employee stock-based compensation either continue to be determined
under Accounting Principles Board Opinion (APB) No. 25 "Accounting for Stock
Issued to Employees" or in accordance with the provisions of SFAS No. 123,
whereby compensation expense is recognized based on the fair value of
stock-based awards on the grant date. The Company accounts for such awards under
the provisions of APB No. 25 and, accordingly, no compensation cost has been
recognized for the stock awards. The Company has made the required additional
disclosures under SFAS No. 123 for 1998, 1997 and 1996 (Note 7).
(n) USE OF ESTIMATES IN FINANCIAL STATEMENTS
In preparing financial statements in conformity with generally accepted
accounting principles, management makes estimates and assumptions that affect
the reported amounts of assets and liabilities and disclosures of contingent
assets and liabilities at the date of the financial statements, as well as the
reported amounts of revenues and expenses during the reporting period. Actual
results could differ from those estimates.
(o) FAIR VALUE DISCLOSURE
The fair value of financial instruments approximates carrying value.
(p) NEW PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 130, Reporting Comprehensive Income ("SFAS
No. 130") with an effective date for fiscal years beginning after December 15,
1997. SFAS No. 130 establishes standards for the reporting of comprehensive
income in a company's financial statements. Comprehensive income includes all
changes in a company's equity during the period that result from transactions
and other economic events other than transactions with its stockholders. The
adoption of SFAS No. 130 will not have a material effect on the financial
reporting in the accompanying consolidated financial statements of the Company.
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 131, Disclosures about Segments of an
Enterprise and Related Information ("SFAS No. 131") with an effective date for
fiscal years beginning after December 15, 1997. A reportable segment, referred
to as an operating segment, is a component of an entity about which separate
financial information is produced internally, that is evaluated by the chief
operating decision-maker to assess performance and allocate resources. The
Company does not presently believe that it operates in more than one
identifiable segment.
In February 1998, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 132, Revision of Disclosures for
Pension Plans and other Postretirement Benefits ("SFAS No. 132") with an
effective date for fiscal years beginning after December 15, 1997. SFAS No. 132
revises the requirements for employers' disclosures about pension and other
postretirement benefits plans. The Company will comply with the disclosure
requirements in fiscal 1999.
<PAGE> 21
21
(3) DEBT
The components of the Company's debt are as follows:
<TABLE>
<CAPTION>
1998 1997
- ---------------------------------------------------------------------------------------------------------------
SHORT-TERM DEBT
<S> <C> <C>
Revolving line of credit $ 3,664,436 $ 2,293,794
- ---------------------------------------------------------------------------------------------------------------
LONG-TERM DEBT
Cincinnati Industrial Revenue Bonds, floating weekly rate,
which approximates 3.60% at March 30, 1997, paid in 1998 - 1,600,000
Scottsburg Industrial Revenue Bonds, floating weekly rate,
which approximates 3.90% at March 29, 1998, scheduled balloon
payment $5,750,000 in October 2009 5,750,000 5,750,000
Scottsburg Industrial Revenue Bonds, floating weekly rate,
which approximates 3.95% at March 29, 1998, scheduled balloon
payment of $3,000,000 in April 2007. 3,000,000 -
Boone County Industrial Revenue Bonds, floating weekly rate, which approximates
3.90% at March 29, 1998, scheduled balloon
payment of $3,250,000 in December 2009 3,250,000 3,250,000
Other 24,256 3,133
- ---------------------------------------------------------------------------------------------------------------
$ 12,024,256 $ 10,603,133
Less-current portion of debt and sinking fund payments (1,024,256) (1,003,133)
- ---------------------------------------------------------------------------------------------------------------
$ 11,000,000 $ 9,600,000
===============================================================================================================
</TABLE>
The following is a schedule of future annual principal payments payable
after one year (including sinking fund payments):
<TABLE>
<S> <C>
2000 $ -
2001 -
2002 -
2003 -
2004 -
2005 and thereafter 11,000,000
-------------------------------------------------------------
$11,000,000
-------------------------------------------------------------
</TABLE>
On January 9, 1997, the Company restated its credit agreement with its
existing lenders covering the Company's line of credit and letters of credit
which secure all three Industrial Revenue Bonds (the Bonds). The restatement
extended the previous agreement until July 31, 1998 in support of the Company's
expansion plans and also enables the Company to borrow additional monies under a
non-revolving credit facility. The current credit agreement is secured by
substantially all assets of the Company and requires sinking fund payments of
$250,000 per quarter through June 30, 1998 and $330,000 per quarter until the
termination of the credit agreement (July 31, 1998) plus other sinking other
sinking fund payments as defined. Under this credit agreement, the revolving
line of credit provides for borrowings up to the lesser of $4,500,000 or
specified percentages of trade receivables and inventories less certain amounts
so long as no event of default has occurred. This revolving line of credit
expires July 31, 1998 and related interest rates are based on prime rates or
Eurodollar loan rates and the Company's leverage, as defined. The non-revolving
credit facility expired August 25, 1997. The non-revolving credit facility was
intended to be temporary until the new industrial revenue bonds relating to the
Company's Scottsburg facility were issued.
On April 1, 1997 the Company entered into a $3,000,000 industrial
development revenue bond financing (Series 1997 Bonds) with the City of
Scottsburg, Indiana in support of its Scottsburg, Indiana plant expansion.
At March 29, 1998, the average interest rate was 8.68% and the Company
had approximately $1,021,000 in available borrowings under the revolving line of
credit.
<PAGE> 22
22
The credit agreement also contains certain financial and operating
covenants which, among others, require the Company to maintain certain leverage,
working capital and cash flow ratios, and limit capital expenditures and
dividends. As of March 29, 1998, the Company was in violation of several of the
financial covenants. The violation of these covenants was cured upon the signing
of a restated credit agreement on June 22, 1998 (see Note 15).
With respect to the Bonds, the Company has the option to establish the
Bonds' interest rate form (variable or fixed interest rate). When a fixed
interest rate is selected, the fixed rate assigned will approximate the market
rate for comparable securities. When a variable rate is selected, or at the end
of a fixed interest rate period, the Bondholders reserve the right to demand
payment of the bonds. In the event that any of the Bondholders exercise their
rights, a remarketing agent is responsible for remarketing the Bonds on a best
efforts basis for not less than the outstanding principal and accrued interest.
In the event the Bonds are not able to be remarketed and the letters of credit
are exercised, the lender is committed to providing financing for up to 458
days. These letters of credit expire July 31, 1998.
During 1997, the Company redeemed $4,900,000 of the Cincinnati
Industrial Revenue Bonds with funds from the Sinking Fund Deposit account.
(4) EMPLOYEE BENEFIT PLANS
(a) The Company has a defined benefit plan covering hourly employees at its
Cincinnati facility who meet certain age and service requirements. The Company's
funding policy is to contribute the recommended actuarially determined
contribution. Pension costs are based on length of service after May 1, 1985
using the unit credit method.
As the Company has sold the Cincinnati facility (see Note 15), this
plan will be terminated during fiscal 1999. There is no curtailment gain or loss
to be recognized at March 29, 1998.
Net periodic pension cost includes the following components:
<TABLE>
<CAPTION>
1998 1997 1996
- --------------------------------------------------------------- ----------------- ---------------- -----------------
<S> <C> <C> <C>
Service cost-benefits earned during period $ 98,871 $ 140,074 $ 183,913
Interest cost on projected benefit obligations 163,113 158,341 142,207
Actual (return) loss on plan assets (382,935) (375,606) (412,624)
Net amortization, deferral and other 164,498 194,311 304,846
- --------------------------------------------------------------- ----------------- ---------------- -----------------
Total net periodic pension costs $ 43,547 $ 117,120 $ 218,342
=============================================================== ================= ================ =================
The actuarial assumptions used were:
1998 1997 1996
- --------------------------------------------------------------- ----------------- ---------------- -----------------
Discount rate 7 1/4% 7 1/4% 7 1/4%
Rate of return on assets 9% 9% 9%
- --------------------------------------------------------------- ----------------- ---------------- -----------------
</TABLE>
<PAGE> 23
23
The following table sets forth the plan's funded status and amounts
recognized in the Company's accompanying balance sheets:
<TABLE>
<CAPTION>
MARCH 29, 1998 March 30, 1997
- --------------------------------------------------------------------------- -------------------- -------------------
<S> <C> <C>
Actuarial present value of benefit obligations:
Vested benefit obligation $(2,386,729) $(2,403,278)
Non-vested benefit obligation (82,259) (45,785)
- --------------------------------------------------------------------------- -------------------- -------------------
Accumulated benefit obligation (2,468,988) (2,449,063)
- --------------------------------------------------------------------------- -------------------- -------------------
Projected benefit obligation for services rendered to date (2,468,988) (2,449,063)
Plan assets at fair value, primarily composed of equity securities 2,837,343 2,447,700
- --------------------------------------------------------------------------- -------------------- -------------------
Plan assets in excess of (below) projected benefit obligation 368,355 (1,363)
Unrecognized prior service cost 2,427 3,633
Unrecognized net (gain) loss from past experience different from that
assumed and effects of changes in assumptions (277,116) 45,682
Adjustment to recognize minimum liability - (49,315)
- --------------------------------------------------------------------------- -------------------- -------------------
Prepaid (accrued) pension cost $ 93,666 $ (1,363)
- --------------------------------------------------------------------------- -------------------- -------------------
</TABLE>
(b) The Company has established a profit sharing/401(k) retirement savings
plan which covers those employees who meet certain service requirements and are
not participants in the other Company retirement plan discussed above. The plan
provides for voluntary contributions by the Company's employees up to a
specified maximum percentage of gross pay. At the discretion of the Company's
Board of Directors, the Company will contribute a specified matching percentage
of the employee contributions. Company contributions in 1998, 1997 and 1996
approximated $147,000, $124,000 and $101,000, respectively, which represent
one-half of the employee contributions not exceeding 6% of gross pay.
(c) The Company previously entered into deferred compensation agreements
with certain officers/shareholders and management employees. Amounts due under
deferred compensation agreements are classified as long-term liabilities at
March 29, 1998 and March 30, 1997. Interest on the deferred amounts which are
included in the balances due were accrued at 10 1/2%, 10 1/4% and 11%, in 1998,
1997 and 1996, respectively. Expenses in 1998, 1997 and 1996 approximated
$93,000, $88,000 and $54,000, respectively.
(d) The Company allows retirees between the ages of 62 and 65 to continue to
participate in its health plan. The retirees reimburse the Company a stipulated
premium amount so the net cost to the Company is immaterial. The Company offers
no other programs requiring recognition of the cost of postretirement or
postemployment benefits under the Financial Accounting Standards Board
statements on accounting for postretirement and postemployment benefits.
(e) During 1992 the Company established a supplemental retirement program for
key executives which allows a maximum of $300,000 in loans to such employees
with a maximum of $100,000 to any one individual. At March 29, 1998 and March
30, 1997 a $100,000 loan at no interest was outstanding under this program from
an officer/shareholder (Note 8).
(f) The Company has an employee stock purchase plan whereby eligible
employees may purchase up to 1,000 shares of Company stock per year through
payroll deductions. The Company will contribute one bonus share for every four
shares purchased up to a maximum of twenty bonus shares per year to any one
employee; however, in 1998, 1997 and 1996 the Company contributed cash rather
than stock.
(5) INCOME TAXES
The provision (credit) for income taxes includes the following components:
<TABLE>
<CAPTION>
1998 1997 1996
- ----------------------------------------------------------- ----------------- ------------------- -----------------
<S> <C> <C> <C>
CURRENTLY PAYABLE
(receivable)
Federal $ - $ 1,151,000 $ -
State and local - 107,000 (37,000)
Benefit of operating loss carryforwards - (1,258,000) -
- ----------------------------------------------------------- ----------------- ------------------- -----------------
- - (37,000)
- ----------------------------------------------------------- ----------------- ------------------- -----------------
DEFERRED
Federal 103,000 7,000 (256,000)
State and local (103,000) (7,000) 256,000
- ----------------------------------------------------------- ----------------- ------------------- -----------------
$ - $ - $ (37,000)
- ----------------------------------------------------------- ----------------- ------------------- -----------------
</TABLE>
<PAGE> 24
24
The following is a reconciliation between the statutory federal income
tax rate and the effective rate shown above:
<TABLE>
<CAPTION>
1998 1997 1996
- ----------------------------------------- ------------------------- ----------------------- ------------------------
AMOUNT RATE Amount Rate Amount Rate
<S> <C> <C> <C> <C> <C> <C>
Computed provision (credit) for federal
income taxes at the statutory rate $(1,384,000) (34%) $ 553,000 34% $ 392,000 34%
State and local income taxes, net of
federal income tax benefit (103,000) (2%) 100,000 6% 145,000 12%
Valuation allowance 1,987,000 49% (708,000) (43%) (708,000) (61%)
Changes in estimates for deferred
components, primarily net operating
loss carryforward (500,000) (13%) - - 147,000 13%
Other - - 55,000 3% (13,000) (1%)
- ----------------------------------------- -------------- ---------- -------------- -------- -------------- ---------
$ - - $ - - $ (37,000) (3%)
- ----------------------------------------- -------------- ---------- -------------- -------- -------------- ---------
</TABLE>
At year end the net deferred tax components consisted of the following:
<TABLE>
<CAPTION>
1998 1997
- ----------------------------------------------------------------------- ---------------------- ------------------
<S> <C> <C>
Deferred tax liabilities
Tax depreciation over book depreciation $(2,879,393) $(3,890,541)
- ----------------------------------------------------------------------- ---------------------- ------------------
Other (15,543) 3,671
- ----------------------------------------------------------------------- ---------------------- ------------------
$(2,894,936) $(3,886,870)
- ----------------------------------------------------------------------- ---------------------- ------------------
Deferred tax assets:
Asset impairment loss $ 472,135 $ 1,016,135
Deferred compensation 266,911 235,253
Ohio EPA fine 96,118 -
Vacation - 27,217
Self-insured benefits - 3,400
Inventory reserves 36,977 24,135
Other 232,050 208,520
AMT credit carryforward 89,855 70,980
Tax credit carryforward 142,215 142,215
State deferred tax asset, net of
federal benefit 117,861 15,303
Net operating loss carryforward 5,168,896 3,884,954
- ----------------------------------------------------------------------- ---------------------- ------------------
6,623,018 5,628,112
Valuation allowance (3,728,082) (1,741,242)
- ----------------------------------------------------------------------- ---------------------- ------------------
$ 2,894,936 $ 3,886,870
- ----------------------------------------------------------------------- ---------------------- ------------------
Net deferred tax components $ - $ -
- ----------------------------------------------------------------------- ---------------------- ------------------
</TABLE>
For tax reporting purposes, the Company has approximately $90,000 of
alternative minimum tax (AMT) credits available for an indefinite period. The
regular tax net operating loss of approximately $15,203,000 can be carried
forward and used to reduce future taxable income in addition to tax credits of
approximately $142,000, which can be carried forward through the following
expiration dates:
<TABLE>
<CAPTION>
Year Net Operating Losses Tax Credits
---------------------------- ---------------------------------- --------------------------
<S> <C> <C>
2005 $ - $ 25,000
2006 - 48,000
2007 1,155,000 37,000
2008 325,000 9,000
2009 5,959,000 18,000
2010 5,204,000 5,000
2011 612,000 -
2012 1,948,000 -
---------------------------- ---------------------------------- --------------------------
$ 15,203,000 $ 142,000
---------------------------- ---------------------------------- --------------------------
</TABLE>
<PAGE> 25
25
The valuation allowance, which increased by approximately $1,987,000 in
1998, is required due to the uncertainty of realizing the net deferred tax asset
through future operations.
(6) MAJOR CUSTOMERS
During 1998, 1997 and 1996, sales to three companies and their related
subsidiaries and divisions approximated 54%, 51%, and 49%, respectively, of the
Company's net sales individually presented as follows:
<TABLE>
<CAPTION>
1998 1997 1996
------------------------ ---------------------- ----------------------
<S> <C> <C>
26% 27% 23%
14% 13% 14%
14% 11% 12%
------------------------ ---------------------- ----------------------
54% 51% 49%
------------------------ ---------------------- ----------------------
</TABLE>
In addition, the year end accounts receivable balances of these
companies approximated 44%, 43%, and 34% of the Company's total trade receivable
balance at year end 1998, 1997, and 1996, respectively.
The loss or substantial reduction of the business of any of the major
customers would have a material adverse effect on the Company.
(7) STOCK OPTIONS
As of March 29, 1998, 100,000 of the authorized but unissued common
shares were reserved for issuance to key employees and directors under the
Company's qualified and non-qualified stock option plans. Stock options granted
under the plans enable the holder to purchase common stock at an exercise price
not less than the market value on the date of grant. To the extent not
exercised, options will expire not more than ten years after the date of grant.
The applicable options vest immediately or ratably over a three to five year
period. A summary of the changes in the options outstanding during 1998, 1997,
and 1996 is set forth below:
<TABLE>
<CAPTION>
Options Price
Number of Weighted Average Range
Shares Exercise Price (Per Share)
- ------------------------------------------------- --------------------------- ---------------- --------------------
<S> <C> <C> <C>
Outstanding at April 2, 1995 334,613 $8.24 $4.65-$12.63
Granted 74,000 2.89 2.63-4.05
Cancelled (82,000) 9.08 5.75-9.25
Expired (13,813) 6.75 5.75-12.63
- ------------------------------------------------- --------------------------- ---------------- --------------------
Outstanding at March 31, 1996 312,800 $6.82 $2.63-$11.00
Granted 42,500 6.12 6.00-6.25
Exercised (1,250) 2.63 2.63
Cancelled (5,000) 9.25 9.25
Expired (20,000) 11.00 11.00
- ------------------------------------------------- --------------------------- ---------------- --------------------
Outstanding at March 30, 1997 329,050 $6.47 $2.63-$11.00
Granted 150,000 6.53 6.41-6.77
Exercised (2,450) 3.62 2.63-4.65
Cancelled (228,050) 6.79 2.63-9.25
Expired (2,500) 8.95 7.75-9.25
- ------------------------------------------------- --------------------------- ---------------- --------------------
OUTSTANDING AT MARCH 29, 1998 246,050 $6.18 $2.63-$11.00
- ------------------------------------------------- --------------------------- ---------------- --------------------
EXERCISABLE (VESTED) OPTIONS AT MARCH 29, 1998 75,938 $6.03 $2.63-$11.00
================================================= =========================== ================ ====================
</TABLE>
<PAGE> 26
26
The following summarizes options outstanding and exercisable at March
29, 1998:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
---------------------------------------------------- ------------------------------------
Weighted Weighted Weighted
Number Average Average Number Average
Range of Outstanding Remaining Exercise Exercisable at Exercise
Exercise Prices at 3/29/98 Contractual Life Price at 3/29/98 Price
- ----------------------- --------------- ----------------- ------------------ --- ----------------- ------------------
<S> <C> <C> <C> <C> <C>
$2.63 to $6.25 60,550 4.51 $4.14 41,938 $4.30
$6.26 to $11.00 185,500 4.86 $6.85 34,000 $8.17
--------------- -----------------
246,050 4.77 $6.18 75,938 $6.03
--------------- -----------------
</TABLE>
The weighted average fair value at date of grant for options granted
during 1998, 1997 and 1996 was $3.27, $3.17 and $1.04, respectively. The fair
value of options at the date of grant was estimated using the binomial model
with the following weighted average assumptions:
<TABLE>
<CAPTION>
1998 1997 1996
- --------------------------------- ---------------------- ----------------------- --------------------
<S> <C> <C> <C>
Expected life (years) 5.00 5.00 3.26
Interest rate 5.42% 6.04% 5.67%
Volatility 50.19% 51.71% 40.81%
Dividend yield 0% 0% 0%
</TABLE>
Had compensation cost for the Company's stock option plans been
determined based on the fair value at the grant date for awards in 1998, 1997
and 1996 consistent with the provisions of SFAS No. 123, the Company's net
income (loss) and earnings (loss) per share would have been reduced to the pro
forma amounts indicated below:
<TABLE>
<CAPTION>
1998 1997 1996
- --------------------------------------------------- --------------------- ---------------------- -------------------
<S> <C> <C> <C>
Net income (loss) - as reported $(4,070,994) $1,627,158 $1,190,968
Net income (loss) - pro forma $(4,086,937) $1,547,054 $1,159,332
Net income (loss) per common and common
equivalent share - as reported
Basic $(2.00) $.63 $.55
Diluted $(2.00) $.58 $.55
Net income (loss) per common and common
equivalent share - pro forma
Basic $(2.01) $.59 $.53
Diluted $(2.01) $.55 $.53
</TABLE>
(8) NOTES RECEIVABLE
The components of notes receivable are summarized as follows:
<TABLE>
<CAPTION>
1998 1997
- ---------------------------------------------------- -------------------------------- ------------------------------
<S> <C> <C> <C>
Officer/shareholder note established under the
supplemental retirement program (Note 4(e)) $ 100,000 $ 100,000
- ---------------------------------------------------- -------------------------------- ------------------------------
Note receivable related to the sale of the
Lockport facility, interest at 9%, payable in
monthly installments through July 1999,
secured by a mortgage on the property
and personal guarantees $ 172,222 $ 281,270
- ---------------------------------------------------- -------------------------------- ------------------------------
Less-current portion (129,709) (118,585)
- ---------------------------------------------------- -------------------------------- ------------------------------
$ 42,513 $ 162,685
==================================================== ================================ ==============================
</TABLE>
<PAGE> 27
27
(9) ACCOUNTS RECEIVABLE
The Company values its trade accounts receivable on the reserve method.
The following table summarizes the activity in the allowance for doubtful
accounts for fiscal 1998, 1997 and 1996.
<TABLE>
<CAPTION>
1998 1997 1996
- ------------------------------------------------ ---------------------- --------------------- ---------------------
<S> <C> <C> <C>
Balance at beginning of year $ 26,077 $ 35,716 $ 297,391
Provision 555,840 58,654 (185,153)
Accounts written-off (163,248) (68,293) (76,522)
- ------------------------------------------------ ---------------------- --------------------- ---------------------
Balance at end of year $ 418,669 $ 26,077 $ 35,716
================================================ ====================== ===================== =====================
</TABLE>
(10) CAPITAL LEASE OBLIGATIONS
The Company has entered into capital leases for certain equipment. The
amount recorded for the equipment and related obligations under the capital
leases amounted to $558,000 and $618,415 at year end 1998 and 1997,
respectively. The accumulated depreciation is $94,450 and $54,913 at year end
1998 and 1997, respectively.
The following is a schedule of future annual minimum lease payments
under the capital leases together with the present value of the net minimum
lease payments, as of March 29, 1998:
<TABLE>
<S> <C>
Total future minimum lease payments $360,451
Less: Interest (59,155)
---------------------------------------------------------------------- -----------------
Present value of minimum lease payments 301,296
Less: Current portion (93,316)
---------------------------------------------------------------------- -----------------
$207,980
====================================================================== ==================
</TABLE>
The following is a schedule of future annual minimum lease payments
payable after one year:
<TABLE>
<S> <C>
1999 $135,062
2000 135,063
2001 88,403
2002 1,923
-------------------------------- -------------------------
$360,451
================================ =========================
</TABLE>
(11) MAJORITY-OWNED SUBSIDIARY
In July 1996, the Company started a new entity with Think Laboratories,
Inc. (Think) of Kashiwa, Japan to develop the market for engraving services in
the United States. The new company, Laser Graphic Systems, Incorporated (LGSI),
is owned 80% by the Company. For financial reporting purposes, LGSI's assets,
liabilities and earnings are consolidated with those of the Company, and Think's
interest in the Company is included in the accompanying financial statements as
minority interest.
The Company and Think are subject to a shareholders' agreement. Under
the terms of the agreement, Think sells to LGSI any equipment it requires that
is manufactured by Think at a price no greater than 80% of Think's normal
wholesale price. During 1998 and 1997, LGSI purchased equipment from Think
totaling $174,510 and $422,849, respectively. Additionally, a royalty of 5% of
cylinders produced by LGSI has been paid by LGSI to Think beginning July 1,
1997. The two parties will dissolve LGSI in July 2001, unless mutually extended
for an additional three years. The parties may agree to dissolve LGSI upon
either party providing 90 days written notice of its desire to do so.
(12) COMMITMENTS AND CONTINGENCIES
(a) OPERATING LEASE AGREEMENTS
During 1994, the Company entered into a leasing arrangement that
provided for total availability of $609,000 from a bank. As of year end 1997,
1996 and 1995, the Company had utilized $405,000 of the total lease arrangement.
During 1995, the bank limited the availability to $405,000. The Company also has
certain other miscellaneous equipment leases and leases for certain office and
plant facilities. Leases expire on various dates
<PAGE> 28
28
through July 2002. Rent expense during 1998, 1997 and 1996 was approximately
$451,000, $256,000, and $238,000, respectively.
The annual future minimum rental obligations as of March 29, 1998 are
as follows:
<TABLE>
<S> <C>
1999 $425,000
2000 185,000
2001 108,000
2002 44,000
2003 8,000
------------------- ----------------------
Total $770,000
=================== ======================
</TABLE>
(b) ENVIRONMENTAL MATTERS
During early January 1998, the Company discovered problems with the
environmental permits relating to the operations of the two newly installed
presses at the Scottsburg, Indiana plant. The Company promptly and appropriately
notified the Indiana Department of Environmental Management (IDEM) and
voluntarily halted production on the involved presses. The Company has
successfully resolved the permitting issues with IDEM, but due to a period of
non-compliance with required regulatory statues, may experience penalties and
fines. A liability has not been recorded as the range of the potential amount of
penalties and fines cannot be reasonably estimated.
On June 17, 1998, the Company received proposed final findings and
orders from the Director of the Ohio Environmental Protection Agency concerning
certain alleged violations of environmental laws at the Company's Cincinnati
facility which included a proposed civil penalty of $282,700. The Company has
accrued and expensed this amount as of March 29, 1998.
In 1995, the Company was a party to an agreed administrative order with
the Indiana Department of Environmental Management (IDEM) concerning past
violations of certain air emissions standards at its Scottsburg location. Prior
to the execution of the order, the IDEM and the Company tentatively reached an
agreement whereby a civil penalty would be assessed of up to $235,000 which the
Company accrued and expensed in 1995. When the agreement was finalized, the
penalty was reduced to $185,000. The difference of $50,000 between the estimated
and actual penalty was recorded as income in 1996. In connection with this
agreement, the Company installed certain environmental control equipment and
structures having a total cost of approximately $600,000 in 1996.
The 1996 penalty will be paid in full by November, 1998.
(c) LITIGATION
Litigation is instituted from time to time against the Company which
involves routine matters incident to the Company's business. In the opinion of
management, the ultimate disposition of pending litigation will not have a
stated or completed material effect upon the Company's financial statements. The
Company anticipates that Indiana environmental authorities will assess penalties
as a result of environmental violations at the Scottsburg facility but cannot
estimate the timing or amount of any such assessments.
(13) PREFERRED STOCK
On May 2, 1996, the Company sold to Label Venture Group LLC 52,500
shares of a newly created issue of Series A Convertible Preferred Stock for
$2,432,000. Each share of Series A Convertible Preferred Stock is immediately
convertible, at the option of the Shareholder, into ten shares of the Company's
Common Stock and may be redeemed by the Company starting in May 1998. The Series
A Convertible Preferred Stock bears a preferred dividend of $4.25 per share and
has a liquidation value of $50 per share, plus unpaid dividends. The Company's
lenders required $1,000,000 of the proceeds to be deposited into the Company's
Sinking Fund Deposit account (Note 3). The remaining proceeds were used to
support capital expansion plans.
Effective March 31, 1996, 13,242 shares of Series B Convertible
Preferred Stock were issued upon conversion of the entire outstanding balance,
including accrued interest, of Subordinated Convertible Notes that were issued
in October 1995. The Series B Convertible Preferred Stock was issued at $40 per
share and also has a liquidation value of $40 per share, plus unpaid dividends.
These shares are immediately convertible, at the option of the Shareholders,
into 132,420 shares of Common Stock and may be redeemed by the Company starting
in May 1998.
<PAGE> 29
29
The Company is prohibited from paying preferred dividends on its
outstanding preferred stock under the terms of the new credit agreement until
certain performance covenants are met. The amount of accrued but unpaid
preferred dividends was $139,704 at June 29, 1998.
(14) RESTRUCTURING PLAN
The Company implemented a restructuring plan in fiscal year 1998 which
resulted in a pre-tax charge to operating results of $314,599 primarily related
to reducing operations at the Cincinnati plant. The restructuring charge
included severance pay, employee insurance and certain other costs. These costs
were paid in full in fiscal 1998.
(15) SUBSEQUENT EVENTS
On March 31, 1998, the Company sold the land and building at its
Cincinnati location for $943,000, net of commissions. A loss of approximately
$438,000 was realized and has been recorded as an impairment loss on property
held for sale at March 29, 1998 (See Note 2(g)). The Company has committed to
lease a portion of the site through March 31, 1999 at a rate of $8,800 per
month.
On June 22, 1998, the Company restated its credit agreement with an
existing lender and a new additional lender. The restated credit agreement
provides for a revolving line of credit with borrowings up to a maximum of
$5,000,000, subject to certain borrowing base limitations. The initial interest
rate is prime plus .75%. The credit agreement expires July 31, 2000. The credit
agreement requires quarterly Sinking Fund deposits of $250,000 until termination
of the agreement. The agreement also contains financial and operating covenants,
similar to covenants contained in previous agreements. The Company is in
compliance with all covenants as of June 22, 1998.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
<PAGE> 30
30
PART III
--------
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
DIRECTOR AND EXECUTIVE OFFICER STOCK OWNERSHIP
This table shows how much Multi-Color common stock each executive
officer and director of Multi-Color beneficially owned on June 17, 1998.
<TABLE>
<CAPTION>
Common Stock
Beneficially Owned(1)
Name and Age Position Amount Percentage
- ------------ -------- ------ ----------
<S> <C> <C> <C>
Louis M. Perlman(2)(3)(4)(5) Chairman of the Board of 527,400 23.1%
51 Directors
Gordon B. Bonfield President and Chief 10,000 *
47 Executive Officer, Director
John C. Court(2)(6)(7) Director 475,384 20.5%
56
Burton D. Morgan(2) Director 383,747 16.8%
82
John D. Littlehale(2)(6) Director 118,116 5.2%
44
John R. Voelker Vice President of Sales & 75,805 3.3%
55 Marketing
Lorrence T. Kellar(3)(4)(6) Director 47,752 2.1%
60
David H. Pease, Jr.(3)(4)(6) Director 41,752 1.8%
69
William R. Cochran Vice President, Chief 17,625 *
45 Financial Officer, Secretary
Francis D. Gerace Vice President of Operations 7,500 *
45
Steven G. Mulch Vice President of Corporate 2,000 *
48 Sales and Business
Development
All Executive Officers and Directors as a 1,707,081 69.9%
group (Eleven Persons)
</TABLE>
- -----------------------
1. Included in the amount of Common Stock Beneficially Owned are the
following shares of Common Stock subject to exercisable options or
options exercisable within 60 days: Mr. Perlman - 2,400 shares, Mr.
Morgan - 6,800 shares, Mr. Voelker - 5,000 shares, Mr. Kellar - 20,400
shares, Mr. Pease - 20,400 shares, Mr. Cochran - 15,125 shares.
2. See Item 12
3. Audit Committee Member
4. Compensation Committee Member
5. Mr. Perlman is the co-manager of Label Venture Group LLC. Except
through his equity interest in the Company through Label Venture Group
LLC and certain management fees payable by Label Venture to Mr.
Perlman, Mr. Perlman disclaims beneficial ownership of the securities
held of record by Label Venture.
6. Included in the amount of Common Stock Beneficially Owned are the
following shares of Common Stock
<PAGE> 31
31
issuable upon exercise of the Company's Series B Convertible Preferred
Stock: Mr. Court - 39,730 shares, Mr. Littlehale - 13,240 shares,
Mr. Kellar - 19,860 shares and Mr. Pease - 19,860 shares.
7. Includes 97,160 shares beneficially owned pursuant to a deferred
compensation agreement.
* Less than 1%
Mr. Perlman was elected to the Company's Board of Directors in May,
1996 as the Board representative of the Series A Preferred and was elected
Chairman of the Board of Directors on March 5, 1998. Mr. Perlman started as a
consultant to the metals and minerals industry and subsequently expanded into
real estate and other investments, including a group of trade publications
specializing in the chemical industry which included CHEMICAL WEEK. For over
five years, Mr. Perlman has been the President of Lazam Partners Ltd, which
invests in real estate.
Mr. Bonfield was appointed a Director in December, 1997 and President
and Chief Executive Officer of the Company on January 7, 1998. He began
employment on January 12, 1998. Mr. Bonfield has 23 years of packaging and
printing experience and was most recently president of Fort James Corporation's
Packaging Business, which is headquartered in Milford, Ohio. He joined James
River in 1988 as Vice President and General Manager for the Folding Carton
Group. Prior to James River, Mr. Bonfield was Vice President and General Manager
of the folding carton division of Packaging Corporation of America which he
joined in 1975 as a sales representative.
Mr. Court served the Company as President and Chief Executive Officer
from 1985 until January 7, 1998 and has served as a Director since 1985. Mr.
Court also served as Chairman of the Board of Directors of the Company from
August, 1996 through March, 1998.
Mr. Morgan served the Company as Chairman of the Board of Directors
from 1985 through August, 1996. Mr. Morgan has been President of Basic Search,
Inc., an Ohio-based venture capital firm, since its founding in 1977. Mr. Morgan
founded two companies which produce adhesive label stock. Mr. Morgan continues
to serve as a director of one of these companies, Morgan Adhesives, Inc.
Mr. Littlehale joined the Company as Secretary/Treasurer in 1985. In
1992, Mr. Littlehale was appointed Vice President, Corporate Quality and served
until November 1993, when he was appointed Vice President and General Manager,
Multi-Color Graphics. In June 1995, Mr. Littlehale was appointed Vice President,
Manufacturing and served in this position until March, 1998. Mr. Littlehale has
been a Director of the Company since 1985.
Mr. Voelker was appointed Vice President of Sales and Marketing of the
Company in June of 1995. Prior to that time Mr. Voelker served as the Company's
Vice President National Accounts from 1992 to 1995 and Vice President
Multi-Color Graphics from 1989 to 1992.
Mr. Kellar was appointed a Director of the Company in January, 1988.
Mr. Kellar has been Vice President, Real Estate of Kmart Corporation since
April, 1996. Prior to that time, he served as Group Vice President of The Kroger
Co., having joined the company in 1965. His prior positions with The Kroger Co.
included Vice President of Corporate Development and Vice President-Treasurer.
Mr. Kellar also serves as a Director of BT Office Products, International and
Loehmanns, Inc.
Mr. Pease has served as a Director of the Company since March, 1987. He
is the Chairman and Chief Executive Officer of Pease Industries, Inc., a
Cincinnati-based manufacturer of residential building products and has held
those positions since 1980.
Mr. Cochran was appointed Vice President, Chief Financial Officer of
the Company in June of 1994 and Secretary in June, 1998. Prior to joining
Multi-Color, Mr. Cochran was Chief Financial Officer of AluChem, Inc. from 1990
to 1994. From 1975 to 1990, Mr. Cochran was employed in various accounting
functions for Libbey Owens Ford, Owens-Corning and Deloitte & Touche, LLP.
Mr. Gerace was appointed Vice President of Operations of the Company on
April 6, 1998. Prior to joining Multi-Color, Mr. Gerace was Director of
Strategic Business Systems for Fort James Corporation's Packaging Business from
1993 to 1997. From 1974 to 1993, Mr. Gerace held various general management
positions with Conagra, Inc. and Beatrice Foods Company.
<PAGE> 32
32
Mr. Mulch was appointed Vice President of Corporate Sales and Business
Development of the Company on April 6, 1998. Prior to joining Multi-Color, Mr.
Mulch was Vice President and General Manager of a four plant division of Fort
James Packaging Business from 1991 to 1997. From 1972 to 1991, Mr. Mulch held
various positions with Tenneco, Inc. including general manager of the offset
carton converting plant in Grand Rapids, Michigan.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16 of the Securities Exchange Act of 1934 requires the
Company's executive officers, directors and persons who own more than 10% of a
registered class of the Company's equity securities to file reports of ownership
and changes in ownership. Based on a review of the copies of such forms received
by it, the Company believes that during the last fiscal year, all of its
executive officers, directors and ten percent stockholders complied with the
Section 16 reporting requirements.
ITEM 11. EXECUTIVE COMPENSATION
The following table sets forth information regarding compensation paid
by the Company to its executive officers in the last fiscal year.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Long Term
Compensation
Annual Compensation Awards
Securities
Name and Other Annual Underlying All Other
Principal Position Year Salary Bonus Compensation Options (#) Compensation(3)
------------------ ---- ------ ----- --------------- ----------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Gordon B. Bonfield 1998(4) $44,745 $21,000 $11,400(1) 50,000 $3,900
President
Chief Executive
John C. Court 1998(4) $180,208 -0- $55,271(2) -0- $3,740
President 1997 200,004 200,004 49,710 12,500 9,069
Chief Executive 1996 188,335 188,335 33,500 25,000 53,750
John D. Littlehale 1998(5) $98,087 -0- $14,158(2) -0- $3,250
Vice President 1997 100,000 $17,180 13,348 5,000 3,729
Manufacturing, 1996 94,177 25,000 8,500 10,000 2,825
Secretary
John R. Voelker 1998 $107,701 -0- $11,543(2) -0- $3,434
Vice President 1997 100,000 $17,180 11,061 -0- 3,729
Sales and Marketing 1996 93,893 25,000 2,700 10,000 2,817
William R. Cochran 1998(6) $100,008 -0- $11,164(2) -0- $3,251
Vice President 1997 90,000 $15,462 9,825 2,500 3,319
Finance/CFO, 1996 84,174 21,250 2,300 5,000 2,945
Secretary
</TABLE>
1. The dollar value represents the difference between the purchase price of
$5.36 and the fair market value of $6.50 on the date of purchase times the
10,000 shares purchased.
2. The Company has established a supplemental retirement program for key
executives based on a percentage of the executive's salary. The percentage
ranges from 8% to 15% of compensation. In fiscal 1998 each of the accounts
was credited with the following amounts: Mr. Court $55,271; Mr. Littlehale
$14,158; Mr. Voelker $11,543; and Mr. Cochran $11,164 representing a
percentage of salary plus accrued interest under this plan.
3. All other compensation includes the Company's contribution to the
Multi-Color 401(k) profit sharing retirement savings plan (the "Retirement
Plan"), the Multi-Color Corporation 1987 Employee Stock Purchase Plan and
interest earned through the deferred compensation plan. Fiscal 1998 amounts
are comprised of the Company's contributions under the Retirement Plan of
$3,740 for Mr. Court; $3,250 for Mr. Littlehale; $3,434 for Mr.
<PAGE> 33
33
Voelker; and $3,251 for Mr. Cochran. Mr. Bonfield's compensation also
includes the payment by the Company of $3,900 of certain benefits,
including automobile allowance, on his behalf.
4. Mr. Bonfield replaced Mr. Court as President and Chief Executive Officer
on January 12, 1998.
5. Mr. Littlehale resigned his positions of Vice President of Manufacturing
and Secretary on March 5, 1998.
6. Mr. Cochran was appointed Secretary on June 15, 1998.
The Company maintains stock option plans which authorize the issuance
of incentive and non-qualified stock options. Options granted under the plans
contain such terms and conditions as are established by the Board of Directors
at the time of the grant. All outstanding options generally have either six year
or five year terms and vest twenty percent over five years in the case of six
year options and twenty-five percent per year over four years in the case of
five year options.
OPTION GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
% of Total
Options Potential Realized Value
Granted for of Assumed Annual
Employees Rates of Price
Options in Fiscal Exercise Price Expiration Appreciation for Option
Individual Grants Granted Year ($/Per Share) Date Term
- ----------------- ------- ---- ------------- ---- ----
5% 10%
-- ---
<S> <C> <C> <C> <C> <C> <C>
Gordon B. Bonfield 50,000 33% $6.77 1/12/2003 $93,521 $206,658
John C. Court -0- -- -- -- -- --
John D. Littlehale -0- -- -- -- -- --
John R. Voelker -0- -- -- -- -- --
William R. Cochran -0- -- -- -- -- --
</TABLE>
No options were exercised during the last fiscal year by any of the
individuals named in the above compensation table.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following persons are the only shareholders known by the Company to
own beneficially 5% or more of its outstanding Common Stock as of June 17, 1998:
<TABLE>
<CAPTION>
Amount and Nature of Percent
Name of Beneficial Owner Beneficial Ownership of Class
- ------------------------ -------------------- --------
<S> <C> <C>
Label Venture Group LLC 527,400(1)(2) 23.1%
Burton D. Morgan 383,747(2) 16.8%
John C. Court 475,384(3) 20.5%
Dimensional Fund Advisors Inc. 144,100(4) 6.3%
John D. Littlehale 118,116(3) 5.2%
</TABLE>
1. Includes 525,000 shares of Common Stock issuable upon conversion of the
Company's Series A Convertible Preferred Stock. Louis M. Perlman, Chairman
of the Board of Directors of the Company, is a co-manager of Label Venture
Group LLC which owns an equity interest in the Company. This
527,400 shares does not include 16,000 shares held by the Multi-Color
Defined Benefit Plan of which Mr. Perlman is a trustee.
2. Included in the amount of Common Stock beneficially owned are the following
shares of Common Stock subject to exercisable options or options
exercisable within 60 days: Mr. Morgan - 6,800 shares and Mr. Perlman -
2,400 shares.
3. Included in the amount of Common Stock beneficially owned are the following
shares of Common Stock issuable upon conversion of the Company's Series B
Convertible Preferred Stock: Mr. Court - 39,730 shares and Mr. Littlehale -
13,240 shares.
<PAGE> 34
34
4. Based on the filing made on February 10, 1998 by DFA Investment Dimensions
Group, Inc. with the Securities and Exchange Commission, all shares are
held in portfolios of DFA Investment Dimensions Group Inc.,
a registered open-end investment company, or in series of the DFA
Investment Trust Company, a Delaware business trust, or the DFA Group Trust
and DFA Participation Group Trust, investment vehicles for qualified
employee benefit plans, all of which Dimensional Fund Advisors Inc. serves
as investment manager. Dimensional Fund Advisors Inc. disclaims beneficial
ownership of all such shares.
The business address of Label Venture is 650 Madison Avenue, 21st
Floor, New York, New York 10022. The business address of Mr. Morgan is 10 W.
Streetsboro Street, Hudson, Ohio 44236. The business address of Mr. Court is
2145 East Hill Avenue, Cincinnati, Ohio 45208. The business address of
Dimensional Fund Advisors Inc. is 1299 Ocean Avenue, 11th Floor, Santa Monica,
California 90401. The business address of Mr. Littlehale is 2 Denison, Terrace
Park, Ohio 45174.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
During 1992 the Company established a supplemental retirement plan for
key executives which allows the Company to extend a maximum of $300,000 in loans
to such employees with a maximum of $100,000 to any one individual. At March 29,
1998 and March 30, 1997 a $100,000 loan at no interest was outstanding under
this program from John C. Court.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a)(1) Financial Statements
The following consolidated financial statements of Multi-Color
Corporation, the related notes, and the Report of Independent
Certified Public Accountant are incorporated herein.
Consolidated Statements of Operations for the years ended
March 29, 1998, March 30, 1997 and March 31, 1996.
Consolidated Balance Sheets as of March 29, 1998 and March 30,
1997.
Consolidated Statements of Shareholders' Investment for the
years ended March 29, 1998, March 30, 1997 and March 31, 1996.
Consolidated Statements of Cash Flows for the years ended
March 29, 1998, March 30, 1997 and March 31, 1996.
Notes to Consolidated Financial Statements
Report of Grant Thornton LLP, Independent Certified Public
Accountants
(a)(2) Financial Statement Schedules
All schedules have been omitted because either they are not
required or the information is included in the financial
statements and notes thereto.
<PAGE> 35
35
(a)(3) List of Exhibits
<TABLE>
<CAPTION>
Exhibit Filing
Numbers Description of Exhibit Status
------- ---------------------- ------
<S> <C> <C>
3 (i) Amended and Restated Articles of Incorporation a
3 (ii) Amendment to Amended and Restated Articles of Incorporation a
3 (iii) Amended and Restated Code of Regulations b
10.1 Irrevocable Letter of Credit dated July 19, 1994 from PNC Bank, Ohio, National c
Association covering $5,750,000 City of Scottsburg, Indiana Economic
Development Revenue Bonds
10.2 Trust Indenture securing City of Scottsburg, Indiana Economic Development d
Revenue Series 1989 dated as of October 1, 1989
10.3 Bond Purchase Agreement for $5,750,000 City of Scottsburg, Indiana Economic d
Development Revenue Bonds Series 1989
10.4 Remarketing Agreement dated October 1, 1989 by and among
the Company, d The Ohio Company and The PNC Bank (Formerly
The Central Trust Company, N.A).
10.5 First Refusal Agreement among the Company's shareholders b
10.6 Loan Agreement between City of Scottsburg, Indiana and Multi-Color dated d
October 1, 1989 for $5,750,000
10.7 Trust Indenture securing County of Boone, Kentucky Industrial Building Revenue Bonds, d
Series 1989 dated as of December 1, 1989
10.8 Loan Agreement between County of Boone, Kentucky and Multi-Color for $3,250,000 d
dated as of December 1, 1989
10.9 Remarketing Agreement dated as of December 1, 1989 by and
among the Company, d The Ohio Company and The PNC Bank
(Formerly The Central Trust Company, N.A.)
10.10 Remarketing Agreement dated October 1, 1989 by and among the Company, The Ohio d
Company and The PNC Bank (Formerly The Central Trust Company, N.A.)
10.11 Irrevocable Letter of Credit dated July 19, 1994 from PNC Bank, Ohio, National c
Association covering $3,250,000 County of Boone, Kentucky Industrial Building
Revenue Bonds
10.12 Bond Purchase Agreement for $3,250,000 County of Boone, Kentucky Industrial c
Building Revenue Bonds Series 1989
10.13 Joint Venture Agreement between the Company and Think Laboratory Co. LTD e
dated July 1, 1996
10.14 Loan Agreement between the Company and City of Scottsburg, Indiana, dated e
as of April 1, 1997 for $3,000,000
10.15 Third Amended and Restated Credit, Reimbursement and Security Agreement, original
dated as of July 15, 1994, restated as of June 22, 1998 among Multi-Color Corporation
and PNC Bank, National Association and Comerica Bank f
10.16 Agreement to Sell entered into November 20, 1997 by and between the Company and
James L. Deckebach, dba Wine Racks Unlimited. f
10.17 General Escrow Agreement effective as of March 31, 1998 by and among the Company,
Longworth Title Agency, Inc. and James L. Deckebach, dba Wine Racks Unlimited f
10.18 126 and 127 Remediation Escrow Agreement effective as of March 31, 1998 by and
among the Company, PNC Bank, National Association and James L. Deckenbach, f
dba Wine Racks Unlimited.
MANAGEMENT CONTRACTS AND COMPENSATION PLANS
10.19 1987 Stock Option Plan b
10.20 1992 Directors' Stock Option Plan b
10.21 Profit Sharing/401(k) Retirement Savings Plan and Trust b
10.22 Deferred Compensation Rabbi Trust Agreement a
10.23 Multi-Color Employee Stock Purchase Plan as g
amended and restated dated March 4, 1992
10.24 1997 Stock Option Plan h
10.25 Employment Agreement - William R. Cochran a
</TABLE>
<PAGE> 36
36
<TABLE>
<S> <C> <C>
23.1 Consent of Grant Thornton LLP Independent f
Certified Public Accountants
27 Financial Data Schedule f
</TABLE>
- -------
a Filed as an exhibit to the Form 10-K for the 1996 fiscal year and
incorporated herein by reference.
b Filed as an exhibit to Registration Statement #33-51772 and
incorporated herein by reference.
c Filed as an exhibit to the Form 10-K for the 1994 fiscal year and
incorporated herein by reference.
d Filed as an exhibit to the Form 10-K for the 1990 fiscal year and
incorporated herein by reference.
e Filed as an exhibit to the Form 10-K for the 1997 fiscal year and
incorporated herein by reference.
f Filed herewith.
g Filed as an exhibit to the Form 8-K filed on March 16, 1992.
h Filed as an exhibit to the 1997 Proxy Statement and incorporated
herein by reference.
(b) Reports on Form 8-K.
On February 13, 1998 the Company filed a report on Form 8-K in
connection with the fact that it obtained a waiver of default of a cash
flow covenant contained in its banking arrangements. No financial
statements were filed with this report.
<PAGE> 37
37
SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
MULTI-COLOR CORPORATION
Dated: June 26, 1998 (Registrant)
/s/ Gordon B. Bonfield
-----------------------------------
Gordon B. Bonfield
President, Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Name Capacity Date
<S> <C> <C>
/s/ Gordon B. Bonfield President, Chief Executive June 26, 1998
- ----------------------------- Officer and Director
Gordon B. Bonfield
/s/ William R. Cochran Vice President, June 26, 1998
- ----------------------------- Chief Financial Officer, Secretary
William R. Cochran (Principal Financial Officer
and Principal Accounting
Officer)
/s/ Louis M. Perlman Chairman of the June 26, 1998
- ----------------------------- Board of Directors
Louis M. Perlman
/s/ Burton D. Morgan Director June 26, 1998
- -----------------------------
Burton D. Morgan
/s/ Lorrence T. Kellar Director June 26, 1998
- -----------------------------
Lorrence T. Kellar
/s/ David H. Pease, Jr. Director June 26, 1998
- -----------------------------
David H. Pease, Jr.
Director June 26, 1998
- -----------------------------
John C. Court
Director June 26, 1998
- -----------------------------
John D. Littlehale
</TABLE>
<PAGE> 1
Exhibit 10.15
THIRD AMENDED AND RESTATED
CREDIT, REIMBURSEMENT AND SECURITY AGREEMENT
Original dated as of July 15, 1994
Restated as of June 22, 1998
among
MULTI-COLOR CORPORATION
The Company
-----------
and
PNC BANK, NATIONAL ASSOCIATION
and
COMERICA BANK
The Lenders
-----------
and
PNC BANK, NATIONAL ASSOCIATION
The Agent
---------
<PAGE> 2
THIRD AMENDMENT AND RESTATEMENT
-------------------------------
MULTI-COLOR CORPORATION, an Ohio corporation (the "Company"), PNC BANK,
NATIONAL ASSOCIATION and COMERICA BANK (each individually a "Lender" and
collectively the "Lenders") and PNC BANK, NATIONAL ASSOCIATION, as agent for the
Lenders (the "Agent"), hereby agree as follows effective as of June 22, 1998
("Effective Date"):
1. RECITALS.
1.1 On January 9, 1997, the Company, PNC Bank, National Association
(successor by merger to PNC Bank, Ohio, National Association, Star Bank,
National Association and the Agent entered into a Second Amended and Restated
Credit, Reimbursement and Security Agreement which has been amended by a First
Amendment to Credit Agreement dated as of February 25, 1997, a Second Amendment
to Credit Agreement dated as of April 1, 1997, a Third Amendment to Credit
Agreement dated as of September 1, 1997, a Fourth Amendment to Credit Agreement
and Waiver Agreement dated as of February 9, 1998 and a Fifth Amendment to
Credit Agreement and Waiver Agreement dated as of March 31, 1998 (as amended,
the "Second Restated Credit Agreement").
1.2 The Company has requested that the Lenders amend and restate the
Second Restated Credit Agreement and the Lenders are willing to do so subject to
and in accordance with the terms of the attached Third Amended and Restated
Credit, Reimbursement and Security Agreement (the "Third Restated Credit
Agreement").
2. AMENDMENT AND RESTATEMENT. Effective as of the Effective Date, the Second
Restated Credit Agreement will be amended and restated in its entirety as
follows:
<PAGE> 3
TABLE OF CONTENTS
-----------------
<TABLE>
Page
----
<S> <C>
1. Definitions..............................................................................................1
1.1 Defined Terms...................................................................................1
1.2 Other Accounting Definitional Provisions........................................................1
1.3 Other Definitional Provisions...................................................................1
2. Credit Facilities........................................................................................1
2.1 Revolving Credit Facility.......................................................................1
2.2 [Intentionally Omitted].........................................................................1
2.3 Manner of Borrowing.............................................................................1
2.3.1 Revolving Borrowings...................................................................1
2.3.2 [Intentionally Omitted]................................................................1
2.4 Additional Provisions Regarding Funding.........................................................1
2.5 Conversions and Continuation of Advances........................................................1
2.5.1 Optional Conversion....................................................................1
2.5.2 Continuation...........................................................................1
2.5.3 Automatic Conversion...................................................................1
2.6 Prepayment of Revolving Credit Facility.........................................................1
2.6.1 Optional Prepayment....................................................................1
2.6.2 Mandatory Prepayment...................................................................1
2.7 Interest on the Advances........................................................................1
2.7.1 Interest Rates on Revolving Credit Loans...............................................1
2.7.2 [Intentionally Omitted]................................................................1
2.7.3 [Intentionally Omitted]................................................................1
2.7.4 Revolving Credit Loans Interest Payment Dates..........................................1
2.7.5 Default Rate...........................................................................1
2.8 Termination or Reduction of Revolving Commitment and
Standby Letter of Credit Commitment by the Company..............................................1
2.9 Records.........................................................................................1
2.10 Letter of Credit Facilities.....................................................................1
2.10.1 Issuance of Scottsburg Alternate Letter of Credit......................................1
2.10.2 Issuance of Boone Alternate Letter of Credit...........................................1
2.10.3 [Intentionally Omitted]................................................................1
2.10.4 Issuance of 1997 Scottsburg Letter of Credit...........................................1
2.10.5 Reimbursement and Other Payments.......................................................1
2.10.6 Transfer; Reduction; Reinstatement.....................................................1
2.10.6.1 Transfer; Fee.............................................................1
2.10.6.2 Reduction.................................................................1
2.10.6.3 Reinstatement.............................................................1
2.10.7 Obligations Absolute...................................................................1
2.10.8 Indemnification........................................................................1
2.10.9 Liability of Agent.....................................................................1
2.11 Standby Letter of Credit Facility...............................................................1
2.11.1 Standby Letter of Credit Commitment....................................................1
2.11.2 Terms of Standby Letters of Credit.....................................................1
</TABLE>
i
<PAGE> 4
TABLE OF CONTENTS CONTINUED
<TABLE>
<CAPTION>
Page
----
<S> <C>
2.11.3 Procedure for Standby Letters of Credit.........................................................1
2.11.4 Drawing and Reimbursement.......................................................................1
2.11.5 Reimbursement Obligation of Company for Standby
Letter of Credit Disbursements..................................................................1
2.11.6 Company's Obligations Absolute..................................................................1
2.11.7 Collateral in the Event of Default..............................................................1
2.11.8 Liability and Indemnification of the Agent......................................................1
2.11.9 General Provisions..............................................................................1
2.12 Assumptions Regarding Notices...................................................................1
2.12.1 Authorized Employees...................................................................1
2.12.2 No Liability...........................................................................1
2.12.3 Notice Irrevocable.....................................................................1
2.13 Computations, Fees, Payments, Etc...............................................................1
2.13.1 Computations...........................................................................1
2.13.2 Fees...................................................................................1
a. Amendment and Extension Fee...............................................1
b. Commitment Fee............................................................1
c. Agent Closing Expenses....................................................1
d. Agency Fees...............................................................1
e. Letter of Credit and Standby Letter of Credit Fees........................1
f. Audit Fees................................................................1
g. Lock Box Fees.............................................................1
2.13.3 Payments...............................................................................1
2.13.4 Charge to Accounts.....................................................................1
2.13.5 Failure to Make Payments by Company....................................................1
2.14 Taxes...........................................................................................1
2.15 Additional Costs................................................................................1
2.15.1 Taxes, Reserve Requirements, Etc.......................................................1
2.15.2 Capital Adequacy.......................................................................1
2.15.3 Certificate of Lender..................................................................1
2.16 Inability to Determine Rate; Inadequacy of Pricing; Illegality..................................1
2.16.1 Rate Inability; Pricing Inadequacy.....................................................1
2.16.2 Illegality; Termination of Commitments.................................................1
2.17 Obligation to Indemnify.........................................................................1
2.17.1 Events.................................................................................1
2.17.2 Statement..............................................................................1
2.17.3 Survival...............................................................................1
2.18 [Intentionally Omitted].........................................................................1
2.19 Use of Proceeds.................................................................................1
3. Lock Box; Cash Collateral Account........................................................................1
3.1 Lock Box........................................................................................1
3.2 Cash Collateral Account.........................................................................1
</TABLE>
<PAGE> 5
TABLE OF CONTENTS CONTINUED
<TABLE>
<CAPTION>
Page
----
<S> <C>
4. Sinking Fund.............................................................................................1
4.1 Deposits to Sinking Fund Account................................................................1
4.2 Scottsburg Expansion............................................................................1
5. Collateral...............................................................................................1
6. Security and Subrogation Under Indenture.................................................................1
6.1 Security........................................................................................1
6.2 Pledge of Rights to Certain Funds and Investments...............................................1
6.3 Pledged Bonds...................................................................................1
6.3.1 Pledge.................................................................................1
6.3.2 Pledged Bond Payments..................................................................1
6.3.3 Release of Pledged Bonds...............................................................1
6.3.4 Liability of Agent.....................................................................1
6.3.5 Representations; Rights and Remedies...................................................1
7. Conditions Precedent.....................................................................................1
7.1 Initial Advances................................................................................1
7.1.1 Loan Documents.........................................................................1
7.1.2 Opinion Letters........................................................................1
7.1.3 Resolutions............................................................................1
7.1.4 Good Standing..........................................................................1
7.1.5 Designation of Authorized Employees of Company.........................................1
7.1.6 Title Insurance........................................................................1
7.1.7 Survey.................................................................................1
7.1.8 Insurance..............................................................................1
7.1.9 Wetlands...............................................................................1
7.1.10 Appraisal..............................................................................1
7.1.11 Environmental Requirements.............................................................1
7.1.12 Full Syndication.......................................................................1
7.1.13 UCC Searches...........................................................................1
7.1.14 Consents...............................................................................1
7.1.15 Borrowing Base Certificate and Reports.................................................1
7.1.16 Fees...................................................................................1
7.1.17 [Intentionally Omitted]................................................................1
7.1.18 Delivery of the Bond Documents and Security
Documents..............................................................................1
7.1.19 No Default.............................................................................1
7.1.20 Representations and Warranties.........................................................1
7.1.21 Certificates...........................................................................1
7.1.22 Opinion of Bond Counsel................................................................1
7.1.23 Collateral Evaluation..................................................................1
7.1.24 Documentation and Proceedings..........................................................1
7.1.25 Other Documents........................................................................1
7.1.26 Other Conditions.......................................................................1
</TABLE>
<PAGE> 6
TABLE OF CONTENTS CONTINUED
<TABLE>
<CAPTION>
Page
----
<S> <C>
7.2 Each Advance....................................................................................1
7.2.1 No Defaults............................................................................1
7.2.2 Accuracy...............................................................................1
7.2.3 Notices................................................................................1
7.2.4 Other Documents........................................................................1
7.3 Representation..................................................................................1
8. Representations and Warranties...........................................................................1
8.1 Organization....................................................................................1
8.2 Latest Financials...............................................................................1
8.3 Recent Adverse Changes..........................................................................1
8.4 Recent Actions..................................................................................1
8.5 Title...........................................................................................1
8.6 Litigation, Etc.................................................................................1
8.7 Taxes...........................................................................................1
8.8 Authority.......................................................................................1
8.9 Other Defaults..................................................................................1
8.10 Conflicts.......................................................................................1
8.11 Patents, Licenses, Etc..........................................................................1
8.12 ERISA...........................................................................................1
8.13 Regulation U....................................................................................1
8.14 Environmental Matters...........................................................................1
8.15 Investment Company Act..........................................................................1
8.16 Governmental Consents...........................................................................1
8.17 Disclosure......................................................................................1
8.18 Registered Office...............................................................................1
9. Affirmative Covenants....................................................................................1
9.1 Sinking Fund....................................................................................1
9.2 Books and Records; Access.......................................................................1
9.3 Monthly Statements..............................................................................1
9.4 Borrowing Base Certificates.....................................................................1
9.5 [Intentionally Omitted].........................................................................1
9.6 Quarterly Statements............................................................................1
9.7 Annual Audits...................................................................................1
9.8 Annual Statements...............................................................................1
9.9 Auditor's Letters...............................................................................1
9.10 Annual Budgets, Forecasts and Comparisons.......................................................1
9.11 Notices of Default..............................................................................1
9.12 Payment of Charges..............................................................................1
9.13 Existence; Operations...........................................................................1
9.14 Insurance.......................................................................................1
9.15 Compliance with Laws............................................................................1
9.16 Environmental Violations........................................................................1
</TABLE>
<PAGE> 7
TABLE OF CONTENTS CONTINUED
<TABLE>
<CAPTION>
PAGE
<S> <C>
9.17 Environmental Audit and Other Environmental Information.........................................1
9.18 Business Names and Locations....................................................................1
9.19 Accounts........................................................................................1
9.20 ERISA Compliance................................................................................1
9.21 Further Assurances..............................................................................1
9.22 Compliance With Agreements......................................................................1
9.23 [Intentionally Omitted].........................................................................1
9.24 [Intentionally Omitted].........................................................................1
9.25 Sale of Equipment...............................................................................1
9.26 Excess Cash Flow................................................................................1
9.27 [Intentionally Omitted].........................................................................1
9.28 Receivables and Payables Aging..................................................................1
10. Negative Covenants.......................................................................................1
10.1 Debt............................................................................................1
10.2 Leases..........................................................................................1
10.3 Liens...........................................................................................1
10.4 Cash Flow Coverage Ratio........................................................................1
10.5 Current Ratio...................................................................................1
10.6 Total Liabilities to Tangible Net Worth.........................................................1
10.7 Minimum Tangible Net Worth......................................................................1
10.8 [Intentionally Omitted].........................................................................1
10.9 Guarantees......................................................................................1
10.10 Corporate Changes...............................................................................1
10.11 Redemptions.....................................................................................1
10.12 Dividends.......................................................................................1
10.13 Investments, Loans and Advances.................................................................1
10.14 Merger or Sale of Assets........................................................................1
10.15 Capital Expenditures............................................................................1
10.16 Acquisitions....................................................................................1
10.17 Transfer of Collateral..........................................................................1
10.18 Sale and Leaseback..............................................................................1
10.19 Line of Business................................................................................1
10.20 Waivers.........................................................................................1
10.21 Payments to Shareholders and Affiliates.........................................................1
10.22 Salaries and Deferred Compensation..............................................................1
10.23 Transactions with Affiliates....................................................................1
10.24 Post-Closing Matters............................................................................1
10.25 Bond Documents..................................................................................1
10.26 Limitation on Optional Calls....................................................................1
10.27 Excess Borrowing................................................................................1
10.6 Cash Flow.......................................................................................1
11. Events of Default........................................................................................1
</TABLE>
<PAGE> 8
TABLE OF CONTENTS CONTINUED
<TABLE>
<CAPTION>
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<S> <C>
11.1 Payment.........................................................................................1
11.2 Bond Documents..................................................................................1
11.3 Covenants.......................................................................................1
11.4 Representations and Warranties..................................................................1
11.5 Obligations.....................................................................................1
11.6 Execution, Attachment, Etc......................................................................1
11.7 Loss, Theft or Substantial Damage to the Collateral.............................................1
11.8 Judgments.......................................................................................1
11.9 Bankruptcy, Etc.................................................................................1
11.10 Impairment of Security..........................................................................1
11.11 [Intentionally Omitted].........................................................................1
11.12 Other Indebtedness..............................................................................1
11.13 Amendment.......................................................................................1
12. Intercreditor Lien and Payment Provisions................................................................1
12.2 Lien Priority...................................................................................1
12.2 Participation in Letters of Credit..............................................................1
12.3 Sharing of Payments, Etc........................................................................1
12.4 Receipt of Payments by Lenders..................................................................1
12.5 Distributions, Etc..............................................................................1
12.6 Benefit.........................................................................................1
13. Representations and Warranties to Survive................................................................1
14. Environmental Indemnification............................................................................1
15. The Agent................................................................................................1
15.1 Authorization and Action........................................................................1
15.2 Agent's Reliance, Etc...........................................................................1
15.3 The Agent and Its Affiliates....................................................................1
15.4 Lender Credit Decision..........................................................................1
15.5 Indemnification.................................................................................1
15.6 Successor Agent.................................................................................1
15.7 Relations Among Lenders.........................................................................1
15.8 Benefit.........................................................................................1
16. General..................................................................................................1
16.1 Waiver..........................................................................................1
16.2 Notices.........................................................................................1
16.3 Successors and Assigns..........................................................................1
16.4 Modifications...................................................................................1
16.5 Illegality......................................................................................1
16.6 Gender, Etc.....................................................................................1
16.7 Headings........................................................................................1
16.8 Purpose.........................................................................................1
16.9 Ratification....................................................................................1
16.10 Claims and Release of Claims by the Company.....................................................1
</TABLE>
<PAGE> 9
TABLE OF CONTENTS CONTINUED
<TABLE>
<CAPTION>
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<S> <C> <C>
16.11 Execution in Counterparts.......................................................................1
16.12 Remedies Cumulative.............................................................................1
16.13 Costs, Expenses and Legal Fees..................................................................1
16.14 Indemnity.......................................................................................1
16.15 Continuing Agreement............................................................................1
16.16 Complete Agreement..............................................................................1
16.17 No Third Party Beneficiaries....................................................................1
16.18 No Partnership or Joint Venture.................................................................1
16.19 Governing Law and Jurisdiction; Waiver of Jury Trial............................................1
</TABLE>
LIST OF EXHIBITS
EXHIBIT A List of Lenders, Addresses and Commitments
EXHIBIT B Disclosure Schedule
EXHIBIT C [Intentionally Omitted]
EXHIBIT D Substituted Revolving Credit Notes
EXHIBIT E Notice of Borrowing
EXHIBIT F Notice of Continuation
EXHIBIT G Notice of Conversion
EXHIBIT H Request for Draw
EXHIBIT I Scottsburg Alternate Letter of Credit
EXHIBIT J Boone Alternate Letter of Credit
EXHIBIT K [Intentionally Omitted]
EXHIBIT L Collateral Assignment of Note, Loan Agreement and
Mortgage
EXHIBIT M Collateral Assignment of Mortgage
EXHIBIT MM Conditional Assignment of Repurchase Contract
EXHIBIT N Security Agreement: Inventory, Receivables, Equipment,
Intangibles, Etc.
EXHIBIT O 1997 Scottsburg Letter of Credit
EXHIBIT P Kentucky Mortgage
EXHIBIT Q Indiana Mortgage
EXHIBIT R Pledge and Security Agreement - Agency or Custodian
Account
EXHIBIT S Compliance Certificate
EXHIBIT T Borrowing Base Certificate
<PAGE> 10
EXHIBIT U Pledge Agreement (Laser Graphic Systems, Incorporated
stock)
EXHIBIT V Guarantee of Laser Graphic Systems, Incorporated
<PAGE> 11
THIRD AMENDED AND RESTATED
CREDIT, REIMBURSEMENT AND SECURITY AGREEMENT
MULTI-COLOR CORPORATION, an Ohio corporation (the "Company"), PNC BANK,
NATIONAL ASSOCIATION and COMERICA BANK (each individually a "Lender" and
collectively the "Lenders"), and PNC BANK, NATIONAL ASSOCIATION, as agent for
the Lenders (the "Agent"), 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. The City of Scottsburg, Indiana has issued its Variable Rate Demand
Industrial Development Revenue Bonds, Series 1997 (Multi-Color Corporation
Project), in the principal
3
<PAGE> 12
amount of $3,000,000 (the "1997 Scottsburg Bonds") under a Trust Indenture dated
as of April 1, 1997 (the "1997 Scottsburg Indenture") between the City of
Scottsburg, Indiana, PNC Bank, Indiana, Inc. and PNC Bank, Ohio, National
Association, as Co-Trustee (together, 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 Company has requested that the Lenders extend a $5,000,000 secured
revolving credit facility to the Company.
J. The Company has requested that the Lenders extend a standby letter of
credit
4
<PAGE> 13
facility to the Company to be included as a $500,000 sub-limit to the revolving
credit facility.
K. The Agent is willing to issue the above referenced letter of credit
facilities and the Agent and the Lenders are willing to make available the
secured revolving credit facility on the terms and conditions hereinafter set
forth.
1. DEFINITIONS.
1.1 DEFINED TERMS. In this Third 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:
<TABLE>
<S> <C>
Agent Scottsburg
Barclays Scottsburg Alternate Letter of Credit
Boone Alternate Letter of Credit Scottsburg Alternate Letter of Credit Amount
Boone Alternate Letter of Credit Scottsburg Bonds
Amount Scottsburg Indenture
Boone Bonds Scottsburg Letter of Credit
Boone County Trustee
Boone Indenture
Boone Letter of Credit
Company
Lender
Lenders
</TABLE>
In addition, the following terms shall have the following meanings,
unless the context requires otherwise:
1.1.1 "Acquisitions" will have the meaning given that term
in Section 10.16, below.
1.1.2 "Advance" or "Advances" will mean Revolving Credit
Loans.
1.1.3 "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
5
<PAGE> 14
securities, by contract or otherwise.
1.1.4 "Agency Fee" will have the meaning given that term in
Section 2.13.2(d), below.
1.1.5 "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: Middle Market Banking,
or such other account maintained by the Agent and
designated by the Agent in a written notice to the
Lenders and the Company.
1.1.6 [Intentionally Omitted].
1.1.7 "Aggregate Outstanding Revolving Credit" will mean an
amount equal to the sum of the aggregate unpaid
principal amount of all Revolving Credit Loans.
1.1.8 "Alternate Letter of Credit" will mean the Boone
Alternate Letter of Credit and the Scottsburg
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:
<TABLE>
<CAPTION>
LEVERAGE RATIO APPLICABLE MARGIN
-------------- -----------------
<S> <C>
SYMBOL 163 \f 0.00%
"Symbol" \s 12 2.50x
SYMBOL 241 \f 0.25%
"Symbol" \s 12 2.50x
SYMBOL 163 \f
"Symbol" \s 12 3.50x
SYMBOL 241 \f 0.50%
"Symbol" \s 12 3.50x
SYMBOL 163 \f
"Symbol" \s 12 4.25x
SYMBOL 241 \f 0.75%
"Symbol" \s 12 4.25x
</TABLE>
b. As to any Eurodollar Rate Advance:
6
<PAGE> 15
<TABLE>
<CAPTION>
LEVERAGE RATIO APPLICABLE MARGIN
-------------- -----------------
<S> <C>
SYMBOL 163 \f 2.00%
"Symbol" \s 12 2.50x
SYMBOL 241 \f 2.25%
"Symbol" \s 12 2.50x
SYMBOL 163 \f
"Symbol" \s 12 3.50x
SYMBOL 241 \f 2.50%
"Symbol" \s 12 3.50x
SYMBOL 163 \f
"Symbol" \s 12 4.25x
SYMBOL 241 \f 2.75%
"Symbol" \s 12 4.25x
</TABLE>
As of the Closing Date, the initial rate of interest for any
Base Rate Advance will be the Prime Rate plus 0.75%.
1.1.11 "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.
1.1.12 "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 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).
1.1.13 "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%).
1.1.14 "Base Rate" will mean the Prime Rate in effect from
time to time.
1.1.15 "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.
1.1.16 "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.
7
<PAGE> 16
1.1.17 "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.
1.1.18 "Bonds" will mean the Boone Bonds, Scottsburg Bonds
and 1997 Scottsburg Bonds collectively and
individually as the context requires.
1.1.19 "Borrowing" will mean a borrowing consisting of all
Advances made on a given Borrowing Date.
1.1.20 "Borrowing Base" will equal the lesser of (a) the sum
of eighty percent (80%) of the Eligible Accounts
Receivable plus fifty percent (50%) of Eligible
Inventories, less the aggregate face amount of all
outstanding Standby Letters of Credit, or (b) the
Total Revolving Commitment.
1.1.21 "Borrowing Base Certificates" will mean the
certificates to be provided to the Agent by the
Company pursuant to Section 9.4 of this Third
Restated Credit Agreement.
1.1.22 "Borrowing Date" will mean the date on which an
Advance is made.
1.1.23 "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.
1.1.24 "Cash Collateral Account" will mean Account No.
4110349324 at the Agent.
1.1.25 "Cash Flow Coverage Ratio" will mean the ratio of (i)
the sum of net income plus or minus non-cash gains
and losses (including depreciation and amortization)
as determined in accordance with GAAP, plus any
non-cash charge to the income statement associated
with any fines or liabilities to the Indiana
Department of Environmental Management to (ii) the
sum of principal payments on long term debt including
capitalized lease payments and required quarterly
deposits made to the Sinking Fund Account, capital
expenditures using funds other than borrowed funds,
cash payments of any fines or liabilities to the
Indiana Department of Environmental Management,
permitted acquisitions and permitted dividends. The
denominator specifically excludes deposits of
payments on the BKS Enterprises, Inc. Promissory
Note, proceeds from the sale of assets or equity
contributions.
8
<PAGE> 17
1.1.26 "Closing Date" will mean the date on which this Third
Restated Credit Agreement and the other Loan
Documents are executed.
1.1.27 "Code" will mean the Internal Revenue Code of 1986,
as amended or supplemented from time to time.
1.1.28 "Collateral" will mean any property, real or
personal, tangible or intangible, referred to in this
Third Restated Credit Agreement or the Security
Documents or now or in the future securing any of the
Obligations.
1.1.29 "Commitment" or "Commitments" will mean the Revolving
Commitment, Standby Letter of Credit Commitment and
Letter of Credit Commitment, as adjusted from time to
time pursuant to Section 2.8, below.
1.1.30 "Commitment Fee" will have the meaning given to that
term in Section 2.13.2(b), below.
1.1.31 "Construction Account" will mean the account
described in Section 4.2 of this Third Restated
Credit Agreement.
1.1.32 "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).
1.1.33 "Conversion Date" will mean the date on which an
Advance is converted into a different Type of Advance
(subject to Section 2.5, below).
1.1.34 "Credit Facilities" will mean the Revolving Credit
Facility and the Letter of Credit Facilities
evidenced by this Third Restated Credit Agreement as
described in Section 2, below.
1.1.35 "Current Assets" will mean cash, short term
investments, accounts receivable, inventory and
prepaids, as determined in accordance with GAAP,
specifically excluding balances deposited into the
Sinking Fund Account and balances deposited into the
Construction Account, notes receivable and deferred
taxes.
1.1.36 "Current Debt" will mean any obligation for borrowed
money payable on demand or within a period of one (1)
year from the date of determination.
9
<PAGE> 18
1.1.37 "Current Liabilities" will include Current Debt,
accounts payable, accruals, tax liabilities and all
other current liabilities, as determined in
accordance with GAAP specifically excluding barter
liabilities, borrowings under the Revolving Credit
Facility and any current liabilities recorded on the
Company's books associated with any Indiana
Department of Environmental Management fine or
liability. Excess Cash Flow payments into the Sinking
Fund Account will be deducted from Current
Liabilities.
1.1.38 "Current Ratio" will mean the ratio of (i) Current
Assets to (ii) Current Liabilities.
1.1.39 "Date of Issuance" will mean the respective dates the
Boone Alternate Letter of Credit, the Scottsburg
Alternate Letter of Credit, or the 1997 Scottsburg
Letter of Credit were issued and delivered to the
Trustee, as the context requires.
1.1.40 "Default" will mean any event or condition which,
with the passage of time, the giving of notice or the
determination by the Agent or any of the Lenders, or
any combination of the foregoing, would constitute an
Event of Default.
1.1.41 "Default Rate" will mean four percent (4%) per annum
plus the existing Interest Rate in effect from time
to time while an Event of Default exists, but not
more than the highest rate permitted by applicable
law.
1.1.42 "Disclosure Schedule" will mean the updated schedules
to be provided by the Company that are attached
hereto as Exhibit B.
1.1.43 "Dollars" will mean lawful money of the United States
of America.
1.1.44 "EBITDA" will mean net income (or loss) before
interest, taxes, depreciation and amortization
expenses.
1.1.45 "Eligible Accounts Receivable" will mean, at any time
of determination thereof, all receivables of the
Company which meet the following criteria for an
Eligible Receivable at the time of creation and
continue to meet the same at all times to the
satisfaction of the Agent: (a) all payments due on
the Receivable have been invoiced to the account
debtor, are due not more than thirty (30) days after
the date of the invoice rendered by the Company and
the Receivable is not more than sixty (60) days past
the due date thereof (or, if earlier, ninety (90)
days past the invoice date); (b) the Receivable arose
from a bona fide
10
<PAGE> 19
outright sale of goods by the Company, or from
services performed by the Company, and such goods
have been shipped to the account debtor or its
designees (or the sale has otherwise been
consummated), or the services have been performed for
the account debtor; (c) the Receivable is based upon
an enforceable order or contract, written or oral,
for goods shipped or held or for services performed,
and the same were shipped, held, or performed in
accordance with such order or contract; (d) the
amount shown on the books of the Company and on any
invoice or statement delivered to the Agent in
respect to the Receivable is owing to the Company;
(e) the Receivable is not subject to any claim of
reduction, counterclaim, setoff, recoupment, or any
claim for credits, allowances, or adjustments by the
account debtor because of returned, inferior, or
damaged goods or unsatisfactory services, or for any
other reason, except for customary discounts allowed
in the ordinary course of the Company's business and
trade for prompt payment; (f) the account debtor has
not returned or refused to retain, or otherwise
notified the Company of any dispute concerning, or
claimed nonconformity of, any of the goods or
services from the sale of which the Receivable arose;
(g) the account debtor has not asserted, and the
Company is not aware, that the Receivable is subject
to any other setoff, net-out contract, offset,
deduction, dispute, credit, counterclaim or other
defense arising out of the transactions represented
by the Receivable or independently thereof and the
account debtor has not objected to its liability
thereon; (h) the Receivable does not arise out of a
contract with, or order from, an account debtor that,
by its terms, forbids or makes void or unenforceable
the assignment by the Company to the Agent of the
Receivable arising with respect thereto; (i) the
Receivable is free and clear of all security
interests, liens, charges and encumbrances of any
nature whatsoever other than any security interest
deemed to be held by the Company, or any security
interest created pursuant to the Security Documents
or Permitted Liens; (j) the Receivable constitutes an
"account", "chattel paper", "contract right",
"instrument" or "general intangible" within the
meaning of the Uniform Commercial Code of the state
in which the Receivable is located; (k) the Company
has not received any note, trade acceptance, draft or
other instrument with respect to, or in payment of,
the Receivable, nor any chattel paper with respect to
the goods giving rise to the Receivable, unless, if
any such instrument or chattel paper has been
received, the Company immediately notified the Agent
and, at the latter's request, endorsed or assigned
and delivered the same to the Agent; (l) the Company
is not aware of the death of the account debtor, the
dissolution, termination of existence, insolvency,
business failure, appointment of a receiver for any
part of the property of,
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assignment for the benefit of creditors by, or the
filing of a petition in bankruptcy or the
commencement of any proceeding under any bankruptcy
or insolvency laws by or against, the account debtor;
(m) the account debtor is not a Subsidiary or other
Affiliate of the Company; (n) the account debtor is
not the United States of America, or any department,
agency or instrumentality thereof, unless the
Company: (1) submits documentation with respect to
such Receivable to the Agent establishing that such
Receivable does not grow out of a progress payment
agreement, (2) the Company assigns its right to
payment of such Receivables to the Agent pursuant to
the Assignment of Claims Act of 1940, as amended, (31
U.S.C. Sections 203 et seq.) or any other similar
applicable law, and (3) the Agent determines that
such Receivable is absolute, unconditional and in
compliance with all applicable laws and regulations
and the lien rights of the Agent have been perfected
therein; (o) the account debtor is not incorporated
in or primarily conducting business in any
jurisdiction located outside the United States; (p)
the Receivable complies with all material
requirements of all applicable Laws and regulations,
whether Federal, state or local (including, without
limitation, usury laws and laws, rules and
regulations relating to truth in lending, fair credit
billing, fair credit reporting, equal credit
opportunity, fair debt collection practices and
privacy); (q) to the knowledge of the Company after
reasonable investigation, the Receivable, when
invoiced, will be in full force and effect and will
constitute a legal, valid and binding obligation of
the account debtor enforceable in accordance with its
terms; (r) the account is denominated in and provides
for payment by the account debtor in Dollars; (s) the
Receivable has not been and is not required to be
charged off or written off as uncollectible in
accordance with GAAP or the customary business
practice of the Company to which it is owed; (t) the
Agent possesses a valid, perfected, first priority
security interest in such Receivable as security for
payment of the Obligations and such Receivable is
subject to no liens other than Permitted Liens; (u)
not more than 50% of the Receivable(s) of the
respective account debtor have remained due or unpaid
for more than sixty (60) days from the due date
thereof or more than ninety (90) days after the date
of the original invoice issued by the Company with
respect to the sale giving rise thereto; (v) there
shall be deducted from the face amount of each
Receivable all payments, adjustments and credits
applicable thereto; (w) the Agent has not deemed the
Receivable ineligible because of reasonable
uncertainty as to the creditworthiness of the account
debtor or because the Agent otherwise reasonably
considers the collateral value thereof to the Agent
to be impaired or its ability to realize such value
to be insecure; (x) the Receivable is not based upon
a sale on a
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bill-and-hold, guaranteed sale, sale-and-return, sale
on approval, consignment, or any other repurchase or
return basis, PROVIDED that up to $250,000 in the
aggregate of such Receivables will not be Ineligible
Accounts Receivable solely because they arise from
sales on a bill-and- hold basis; and (y) the
Receivable is not a contra account, government
receivable, intercompany account or a reserve or
discount. In the event of any dispute under the
foregoing criteria, as to whether a Receivable is, or
has ceased to be, an Eligible Account Receivable, the
decision of the Agent shall control. Any Receivable
which is at any time an Eligible Account Receivable,
but which subsequently fails to meet the criteria for
an Eligible Account Receivable, shall immediately
cease to be an Eligible Account Receivable.
1.1.46 "Eligible Inventory" or "Eligible Inventories" will
mean at the time of any determination thereof, the
book value (calculated in accordance with GAAP) of
such Inventory of raw materials and finished goods of
the Company, not to exceed the lesser of (i) 80% of
Eligible Accounts Receivables or (ii) $2,500,000, as
the Agent, in its reasonable discretion, shall elect
to consider Eligible Inventory for purposes of this
Third Restated Credit Agreement (such value to be
determined by the Agent in its reasonable discretion
taking into consideration, among other factors, the
lower of its cost or market value, and appropriate
reserves, including but not limited to reserves and
adjustments as appearing in the Company's general
ledger with the exception of LIFO), but in each case
only to the extent the Agent possesses a valid,
perfected, first priority security interest in such
Inventory as security for payment of the Obligations
and such Inventory is subject to no liens other than
Permitted Liens. Without limiting the generality of
the foregoing, Eligible Inventory will not include
(a) any Inventory located outside of the United
States, (b) any Inventory not in the actual
possession of the Company or any Inventory in the
possession of a bailee, warehouseman, consignee,
subcontractor or similar third party; provided,
however, that up to $500,000 of Inventory in the
possession of a consignee will be Eligible Inventory
if the Company has protected its interest in such
consigned Inventory in accordance with applicable law
and to the Lenders' reasonable satisfaction,
including but not limited to filing (and continuing
as and when required) UCC financing statements giving
notice of the consignment and giving written notice
of the consignment to all secured parties claiming a
security interest in the consignee's inventory, in
each case prior to such consignee receiving any
Inventory, and if the Lenders' security interest in
such Inventory remains a perfected first priority
security interest, (c) any Inventory subject to lien
or claim of title of a Governmental Authority
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under 32 C.F.R. Section 7-104.35(b)/FAR 52.232.16,
(d) any Inventory consisting of work in process,
packing, packaging and/or shipping supplies or
materials, including but not limited to solvents,
melts and plastic film inventories, (e) any Inventory
located on a leasehold as to which the lessor has not
entered into a consent and agreement with the Agent
providing the Agent with the right to receive notice
of default and/or termination of the lease and the
right to repossess such Inventory and enter upon such
premises at any time and such other rights as may
reasonably be required by the Agent, (f) any
Inventory that is evidenced by a Receivable or the
subject of any advance payment or progress payment,
and (g) any Inventory which the Agent reasonably
determines at any time and in good faith to be
defective, in poor condition, unmerchantable or
obsolete. Inventory which is at any time Eligible
Inventory, but which subsequently fails to meet the
criteria for Eligible Inventory, shall immediately
cease to be Eligible Inventory for the purpose of
determining the Borrowing Base under this Third
Restated Credit Agreement. Notwithstanding item (d)
above, plastic film inventory subject to a repurchase
agreement with the seller, conditionally assigned to
the Lenders in form and substance acceptable to the
Agent may be included in Eligible Inventory at the
Lenders' sole discretion.
1.1.47 "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.
1.1.48 "ERISA" will mean the Employee Retirement Income
Security Act of 1974, or any successor statute, as
amended or supplemented from time to time.
1.1.49 "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.
1.1.50 "Eurocurrency Liabilities" will have the meaning
given such term in Regulation D of the Board of
Governors of the Federal Reserve
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System, as in effect from time to time.
1.1.51 "Eurodollar Rate" will mean, with respect to any
Eurodollar Rate Advance and its related Eurodollar
Interest Period, the interest rate per annum equal to
the rate per annum (rounded upwards, if necessary, to
the nearest 1/8 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 eurodollar rate two Business Days
before the first day of such Eurodollar Interest
Period for delivery on the first day of such
Eurodollar Interest Period, in an amount
substantially equal to such Eurodollar Rate Advance
and for a period equal to such Eurodollar Interest
Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such
Eurodollar Interest Period. The Eurodollar Rate will
be adjusted automatically on the effective date of
any change in the Eurodollar Rate Reserve Percentage,
such adjustment to affect any Eurodollar Rate Advance
outstanding on such effective date.
1.1.52 "Eurodollar Rate Advance" will mean any Advance as to
which the Company has elected an Interest Rate that
is based upon the Eurodollar Rate.
1.1.53 "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 in New York City 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.
1.1.54 "Event of Default" will mean any of the events listed
in Section 11 of this Third Restated Credit
Agreement.
1.1.55 "Excess Cash Flow" will mean Operating Cash Flow less
the sum of principal payments on long term debt
(excluding scheduled Optional Redemptions of the
Bonds) including capitalized lease payments,
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capital expenditures using funds other than borrowed
funds, permitted dividends, taxes, quarterly deposits
to the Sinking Fund Account and required cash
payments made to the Indiana Department of
Environmental Management, and specifically excluding
deposits of payments on the BKS Enterprises, Inc.
Promissory Note, proceeds from the sale of assets or
equity contributions.
1.1.56 "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.
1.1.57 "Fiscal Quarter" means each three (3) month fiscal
period of the Company.
1.1.58 "Fiscal Year" means each annual fiscal period of the
Company ending on or about March 31.
1.1.59 "Fixed Rate" will mean the Treasury Rate plus the
Applicable Margin.
1.1.60 "GAAP" will mean generally accepted accounting
principles.
1.1.61 "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.
1.1.62 "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.
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<PAGE> 25
Section 9601 ET SEQ. ("CERCLA").
1.1.63 "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; (b) all obligations for
borrowed money or for the deferred purchase price of
property or services; (c) all guarantees,
reimbursement, payment or similar obligations,
absolute, contingent or otherwise, under acceptance,
letter of credit or similar facilities; and (d) 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.
1.1.64 "Indenture" will mean the Boone Indenture, the
Scottsburg Indenture, and the 1997 Scottsburg
Indenture collectively and individually as the
context requires.
1.1.65 "Interest Draft" will mean a drawing under Exhibit A
to any Letter of Credit to be used for payment of
interest due on the applicable Bonds.
1.1.66 "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 thirty
(30), sixty (60), ninety (90) or one hundred eighty
(180) days thereafter, as designated by the Company
in the related Notice of Borrowing, Notice of
Conversion or Notice of Continuation; PROVIDED,
HOWEVER, that:
a. the Company may not select any Interest
Period that ends after the Termination Date;
b. whenever the last day of any Interest Period
would otherwise occur on a day other than a
Business Day, the last day of such Interest
Period shall be extended to occur on the
next succeeding Business Day; PROVIDED,
HOWEVER, that such extension would cause the
last day of such Interest Period to occur in
the next following calendar month, the last
day of such Interest Period shall occur on
the next preceding Business Day;
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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; and
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.
1.1.67 "Interest Portion" will have the meaning ascribed to
such term in the Letters of Credit.
1.1.68 "Interest Rate" will mean the applicable rates under
Section 2.7, below.
1.1.69 "Inventory" will have the meaning given that term in
the Security Documents.
1.1.70 "Issuer" will mean Boone County and Scottsburg,
individually or collectively as applicable.
1.1.71 "Items" will have the meaning given that term in
Section 3.1 of this Third Restated Credit Agreement.
1.1.72 "Letter of Credit" or "Letters of Credit" will mean
the Scottsburg Alternate Letter of Credit, the Boone
Alternate Letter of Credit, and the 1997 Scottsburg
Letter of Credit individually and collectively as the
context requires.
1.1.73 "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, and the 1997 Scottsburg Letter of
Credit Amount, as applicable.
1.1.74 "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.
1.1.75 "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
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Credit.
1.1.76 "Letter of Credit Facilities" will mean the Credit
Facilities described in Sections 2.10 and 2.11 of
this Third Restated Credit Agreement.
1.1.77 "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.
1.1.78 "Leverage Ratio" will mean the ratio of (i) all debt
other than debt that has been subordinated to the
Obligations in form and substance acceptable to the
Lenders and accounts payable that arise in the
ordinary course of the Company's business and are
payable within ninety (90) days of receipt of the
goods or service giving rise thereto, less the
Sinking Fund Account balance and less the
Construction Account balance to (ii) the Company's
EBITDA, as determined in accordance with GAAP,
calculated on a trailing four quarter basis.
1.1.79 "Levies" will have the meaning given that term in
Section 2.14 of this Third Restated Credit Agreement.
1.1.80 "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.
1.1.81 "Loan Documents" will mean this Third 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 Lenders in connection
with this Third Restated Credit Agreement, together
with all agreements, instruments and documents
referred to therein or contemplated thereby.
1.1.82 "Long Term Rate" will have meaning ascribed to such
term in the Boone Indenture or the Scottsburg
Indenture, as applicable.
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1.1.83 "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.
1.1.84 "Notes" will mean the Substituted Revolving Credit
Notes, which shall be in the form attached to this
Third Restated Credit Agreement as Exhibit D, and
will include any amendments, extensions and renewals
made thereto from time to time.
1.1.85 "Notice of Borrowing" will mean the notice required
under Section 2.3, below, in the form attached to
this Third Restated Credit Agreement as Exhibit E.
1.1.86 "Notice of Continuation" will mean the notice
required under Section 2.5, below, in the form
attached to this Third Restated Credit Agreement as
Exhibit F.
1.1.87 "Notice of Conversion" will mean the notice required
under Section 2.5, below, in the form attached to
this Third Restated Credit Agreement as Exhibit G.
1.1.88 "Notice of Prepayment" will mean the notice required
under Section 2.6, below.
1.1.89 "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.
1.1.90 "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 of any kind or nature
arising under this Third 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
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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.
1.1.91 "Operating Cash Flow" will mean the sum of net
income, plus or minus non-cash gains or losses
(including depreciation and amortization) as
determined in accordance with GAAP.
1.1.92 "Outstanding" when applied to the Bonds will have the
meaning ascribed to such term in the Indenture.
1.1.93 "PBGC" will mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
1.1.94 "Permitted Liens" will mean:
a. liens securing the payment of taxes, either
not yet due or the validity of which is
being contested by the Person being charged
in good faith by appropriate proceedings,
and as to which it has set aside on its
books adequate reserves to the extent
required by GAAP;
b. deposits under workers' compensation,
unemployment insurance and social security
laws, or to secure the performance of bids,
tenders, contracts (other than for the
repayment of borrowed money) or leases, or
to secure statutory obligations or surety or
appeal bonds, or to secure indemnity,
performance or other similar bonds in the
ordinary course of business;
c. liens imposed by law, such as carriers',
warehousemen's or mechanics' liens, incurred
by it in good faith in connection with the
Scottsburg Expansion or 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 Third Restated Credit
Agreement);
e. liens in favor of Agent for the benefit of
the Lenders under
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this Third Restated Credit Agreement or the
Security Documents; and
f. liens disclosed on the updated Disclosure
Schedule.
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 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 Third
Restated Credit Agreement, then in each such event,
any rate of interest payable under this Third
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, 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 Exhibit
C to any Letter
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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 "Remarketing Agent" will mean (i) with respect to the
Boone Bonds and the Scottsburg Bonds, The Ohio
Company and (ii) with respect to the 1997 Scottsburg
Bonds, PNC Capital Markets, Inc.
1.1.103 "Remarketing Agreement" means the Remarketing Agent's
agreement to perform its duties under the Indenture.
1.1.104 "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).
1.1.105 [Intentionally Omitted].
1.1.106 "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.
1.1.107 "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.
1.1.108 "Revolving Conditions" will mean the conditions
specified in Section 2.1, below.
1.1.109 "Revolving Credit Facility" will mean the Credit
Facility described in Section 2.1, below.
1.1.110 "Revolving Credit Loans" will mean the advances made
pursuant to Section 2.1. below.
1.1.111 "Scottsburg Expansion" will mean the proposed
additional 50,000 square foot manufacturing and
warehousing facility at the Company's Scottsburg,
Indiana facility.
23
<PAGE> 32
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 Third 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 Third 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)
$500,000.
1.1.116 "Standby Letter of Credit Conditions" will mean the
conditions specified in Section 2.11.1 of this Third
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
Third Restated Credit Agreement.
1.1.118 "Standby Letter of Credit Facility" will mean the
Credit Facility described in Section 2.11 of this
Third 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 D,
and will include all amendments, extensions and
renewals
24
<PAGE> 33
made thereto from time to time.
1.1.121 "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. With respect to the Company,
subject to Section 10.7 below, any liability recorded
on the Company's books associated with any fine or
liability payable to the Indiana Department of
Environmental Management will be added back to
determine Tangible Net Worth, and 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.
1.1.122 "Taxes" will have the meaning given that term in
Section 2.14 of this Third Restated Credit Agreement.
1.1.123 "Tender Agent" will mean PNC Bank, National
Association.
1.1.124 "Tender Draft" will mean a drawing or drawings under
Exhibit B to any Letter of Credit to be used for
payment of the purchase price of the applicable Bonds
tendered to the Tender Agent in accordance with the
Indenture and not remarketed.
1.1.125 "Termination Date" will mean July 31, 2000; 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.
1.1.126 "Third Restated Credit Agreement" or "Credit
Agreement" will mean this Third 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.
1.1.127 "Total Revolving Commitment" will mean the aggregate
of the Revolving Commitments.
25
<PAGE> 34
1.1.128 "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.
1.1.129 "Trustee" shall mean PNC Bank, National Association,
as Trustee.
1.1.130 "Type of Advance" refers to the distinction between
Advances bearing interest at the Base Rate or
Eurodollar Rate.
1.1.131 "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.
1.1.132 "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.SEQ LEVEL2 \H \R0
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 29,
1998, except for any inconsistency resulting from any change
in accounting principles or methods adopted by the Company
with the agreement of its independent certified public
accountants; PROVIDED, HOWEVER, that if any change in GAAP or
its application occurs hereafter or if the Company adopts a
change to its accounting principles or methods with the
agreement of its independent certified public accountants, and
such change results in a change in the calculations of any
financial covenants or restriction set forth in this Third
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 29, 1998 as are necessary
to enable the Lenders to test the financial covenants and
restrictions contained herein.
26
<PAGE> 35
1.3 OTHER DEFINITIONAL PROVISIONS. All terms defined in this Third
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 Third Restated Credit Agreement will mean
this Third Restated Credit Agreement as a whole and not any
particular provision of this Third Restated Credit
Agreement.SEQ LEVEL1 \H \R0
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;
b. the Aggregate Outstanding Revolving Credit
shall not exceed at any time the Borrowing
Base; and
c. no Default or Event of Default exists.
2.1.2 Within the above-described limits, the Company may
borrow under this Section 2.1, prepay pursuant to
Section 2.6.1, below, and reborrow under this Section
2.1.
2.1.3 The Revolving Credit Loans will be evidenced by the
Substituted Revolving Credit Notes and will bear
interest and be payable in the manner set forth
herein and therein. The Company will pay to the Agent
for the account of the Lenders the outstanding
principal amount of, and all accrued and unpaid
interest on, all Revolving Credit Loans on the
Termination Date.
2.1.4 The initial term of the Revolving Credit Loans and
the Substituted Revolving Credit Notes will commence
on the Closing Date and expire on July 31, 2000. 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
27
<PAGE> 36
request of the Company by written notice given to the
Agent at least sixty (60) days prior to the
anniversary date.SEQ LEVEL2 \H \R0 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 [INTENTIONALLY OMITTED].
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 Facilities, 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) two (2)
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 Base Rate Advance shall be in an aggregate
principal amount of $250,000 or in integral multiples
of $50,000 in excess thereof. 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 prior to January 31, 1999. The Lenders will
have no obligation to make Eurodollar Rate Advances
if thereafter there would be outstanding Eurodollar
Rate Advances with Interest Periods that end on more
than two (2) 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
28
<PAGE> 37
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.
2.3.2 [INTENTIONALLY OMITTED].seq level2 \h \r0
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 Third
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.SEQ LEVEL2
29
<PAGE> 38
\H \R0
2.5 CONVERSIONS AND CONTINUATION OF ADVANCES.
2.5.1 OPTIONAL CONVERSION. Subject to the terms and
conditions of this Third 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 upon expiration of the
applicable Interest Period, or may convert any Base
Rate Advance under the Revolving Credit Facility at
any time, to a Eurodollar Rate Advance or a Base Rate
Advance, as the case may be, under the same Credit
Facility. Any such Notice of Conversion shall be
delivered to the Agent prior to 11:00 a.m.
(Cincinnati time) two (2) Business Days prior to the
proposed Conversion Date (which must, except for
conversions to Base Rate Advances, be the last day of
the applicable Interest Period). The Agent will give
to each Lender prompt notice thereof by telex,
telecopier or cable. Each Notice of Conversion shall
be by telex, telecopier or cable (or by telephone
notice confirmed in writing by a Notice of Conversion
delivered no later than the close of business on the
day on which such telephonic notice is given),
specifying therein all matters required by such
Notice, including but not limited to the following:
(a) the requested Conversion Date (which must be a
Business Day), (b) the amount and Type of Advances to
be converted and (c) 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, Eurodollar Rate Advances
with Interest Periods that end on more than two (2)
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 Third 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
30
<PAGE> 39
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 Eurodollar Rate Advances with Interest
Periods that end on more than two (2) different
dates.
2.5.3 AUTOMATIC CONVERSION. If the Company shall fail to
give a timely and complete Notice of Conversion or
Notice of Continuation with respect to an outstanding
Advance in accordance with this Third Restated Credit
Agreement, or any requested conversion or
continuation otherwise fails to satisfy the
applicable requirements of this Third 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.SEQ LEVEL2 \H \R0
2.6 PREPAYMENT OF REVOLVING CREDIT FACILITY.
2.6.1 OPTIONAL PREPAYMENT. Subject to the terms and
conditions of this Third 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
multiply of $50,000 in excess thereof and provided
further that each prepayment of any Advance shall be
accompanied by payment of the
31
<PAGE> 40
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. 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.SEQ LEVEL2 \H \R0
2.7 INTEREST ON THE ADVANCES.
2.7.1 INTEREST RATES 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. Commencing with the Fiscal Quarter ending
December 27, 1998, the Applicable Margin will change
if the Company has maintained the specified Leverage
Ratio for the two immediately preceding Fiscal
Quarters (for example, if the Company has maintained
the specified Leverage Ratio for the Fiscal Quarter
ending September 27, 1998 and for the Fiscal Quarter
ending December 27, 1998, the Applicable Margin will
change). 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 Third
Restated Credit Agreement the Applicable Margin will
automatically be increased to the highest rate
permitted hereunder.
2.7.2 [INTENTIONALLY OMITTED].
32
<PAGE> 41
2.7.3 [INTENTIONALLY OMITTED].
2.7.4 REVOLVING CREDIT LOANS INTEREST PAYMENT DATES.
2.7.4.1 Accrued interest under the Revolving Credit
Loans shall be payable (i) monthly on the
first day of each month, (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.
2.7.4.2 [Intentionally Omitted].seq level3 \h \r0
2.7.5 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 Third
Restated Credit Agreement does not specifically
provide a cure period.SEQ LEVEL2 \H \R0
2.8 TERMINATION OR REDUCTION OF REVOLVING COMMITMENT AND STANDBY
LETTER OF CREDIT COMMITMENT BY THE COMPANY. The Company shall
have the right from time to time to terminate the Standby
Letter of Credit Commitment and/or Revolving Commitment, or
reduce the Standby Letter of Credit 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 and/or Revolving Conditions must
be satisfied. Any optional reduction of the Revolving
Commitment shall be in the amount of $500,000 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
33
<PAGE> 42
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 Third 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 and substantially
in the form attached hereto as Exhibit I. 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 July 31, 2000, or
if such day is not a Business Day, on the next
succeeding Business Day, subject to renewal as
provided therein. The Scottsburg Alternate Letter of
Credit is subject to prior automatic termination as
provided therein. The payment of all drawings honored
under the Scottsburg Alternate Letter of Credit will
be made with the Agent's own funds. Draws under the
Scottsburg Alternate Letter of Credit are not
available to pay any amounts due under any other
Letter of Credit.
2.10.2 ISSUANCE OF BOONE ALTERNATE LETTER OF CREDIT. The
Company has
34
<PAGE> 43
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 and substantially in the form
attached hereto as Exhibit J. 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 July 31, 2000, 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 [INTENTIONALLY OMITTED].
2.10.4 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 and substantially in the form
attached hereto as Exhibit O. 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 July
31, 2000, 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.
2.10.5 REIMBURSEMENT AND OTHER PAYMENTS. The Company hereby
agrees to pay or cause to be paid to the Agent:
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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 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
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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 Third Restated Credit Agreement have
been paid in full. Interest payable under this Section 2.10.5 shall be reduced
by amounts paid to the Agent as the holder of Bonds pledged to it hereunder.
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<PAGE> 46
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 SEQ LEVEL3 \H \R0 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 of Exhibit J attached hereto if the
Boone Alternate Letter of Credit, or Exhibit
I if the Scottsburg Alternate Letter of
Credit, or Exhibit O if the 1997 Scottsburg
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, the Scottsburg Alternate Letter of
Credit, or the 1997 Scottsburg 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
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<PAGE> 47
amount of such drawing. In the event of a
drawing under a Letter of Credit with a
Tender Draft, the Principal Portion and
Interest Portion of the Letter of Credit
Amount shall, as provided in the applicable
Letter of Credit, be reinstated with respect
to such drawing when and to the extent that
the Agent has received reimbursement for
such drawing in immediately available funds
(or the Trustee has received immediately
available funds which, pursuant to the
Indenture, the Trustee will immediately
remit to the Agent as reimbursement for such
drawing).SEQ LEVEL3 \H \R0
2.10.7 OBLIGATIONS ABSOLUTE. The obligations of the Company
under this Third 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 Third 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
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<PAGE> 48
in, or the occurrence of any default under, this
Third 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 Third Restated Credit Agreement or
any other event or transaction contemplated by any of
the foregoing; provided the Company shall not be
required to indemnify the Agent for any claims,
damages, losses, liabilities, costs or expenses to
the extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of the Agent
or (ii) the Agent's failure to pay under the Letters
of Credit after the presentation to it by the Trustee
of a draft and certificate strictly complying with
the terms and conditions of the Letters of Credit,
unless the Agent in good faith believes that it is
prohibited by law from making such payment. Nothing
in this Section is intended to limit the Company's
reimbursement obligations contained in Section 2.10.5
of this Third Restated Credit Agreement. The
obligations of the Company under this Section shall
survive the termination of this Third 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,
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<PAGE> 49
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 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 Third
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 SEQ LEVEL2 \H \R0 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
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<PAGE> 50
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 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
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<PAGE> 51
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,
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
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<PAGE> 52
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 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.
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<PAGE> 53
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 wilful
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 wilful
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 wilful 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
wilful misconduct of the Agent.
a. It is understood that in making any payment
under a Standby Letter of Credit (x) the
Agent's exclusive reliance on the documents
presented to it under such Standby Letter of
Credit
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<PAGE> 54
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 wilful
misconduct or gross negligence of the Agent.
b. 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.
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2.11.8 LIABILITY AND INDEMNIFICATION OF THE AGENT.
a. Any action taken or omitted by the Agent,
any Affiliate of the Agent, or any branch or
correspondent bank or confirming bank, under
or in connection with the Standby Letters of
Credit or drafts or documents relating
thereto, if taken or omitted without gross
negligence or willful misconduct, will be
binding upon the Company and will not result
in the Agent, any Affiliate, any branch or
any correspondent or confirming bank being
under any liability to the Company. The
Agent, any Affiliate, branch, correspondent
bank or confirming bank or any of their
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
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<PAGE> 56
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, 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
48
<PAGE> 57
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
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
49
<PAGE> 58
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 9.14 hereof and
in all respects satisfactory to the Agent.
On the demand of the Agent, the Company will
deposit with the Agent policies or
certificates of such insurance. The Company
will sign and deliver to the Agent upon the
request of the Agent trust receipts or
similar instruments, financing statements or
other documents reasonably requested by the
Agent to perfect any liens or security
interests granted by the Company to the
Agent in connection with Standby Letters of
Credit. The Company will promptly procure
any necessary licenses for the importing,
exporting or shipping of all property in
connection with the
50
<PAGE> 59
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 SEQ LEVEL2 \H \R0 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.SEQ LEVEL2 \H \R0
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
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<PAGE> 60
succeeding Business Day, and such extension of time
will in such case be included in the computation of
payment of interest or fees, as the case may be;
PROVIDED, HOWEVER, that if such extension would cause
payment of principal or interest on Eurodollar Rate
Advances to be made in the next following calendar
month, such payment shall be made on the next
preceding Business Day.
2.13.2 FEES. The fees described in this Section 2.13.2
represent compensation for services rendered and to
be rendered separate and apart from the lending of
money or the provision of credit and do not
constitute compensation for the use, detention or
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
in an amount equal to $60,000 to be shared
pro rata by the Lenders.
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,
such Commitment Fee to be payable quarterly
in arrears on the last day of each June,
September, December and March and upon the
Termination Date and to be shared pro rata
by the Lenders.
52
<PAGE> 61
<TABLE>
<CAPTION>
LEVERAGE RATIO COMMITMENT FEE
-------------- --------------
<S> <C>
SYMBOL 163 \f 0.25%
"Symbol" \s 12 2.50x
SYMBOL 241 \f 0.375%
"Symbol" \s 12 2.50x
SYMBOL 163 \f
"Symbol" \s 12 3.50x
SYMBOL 241 \f 0.50%
"Symbol" \s 12 3.50x
SYMBOL 163 \f
"Symbol" \s 12 4.25x
SYMBOL 241 \f 0.50%
"Symbol" \s 12 4.25x
</TABLE>
Commencing with the Fiscal Quarter ending
December 27, 1998, the Commitment Fee will
change if the Company has maintained the
specified Leverage Ratio for the two
immediately preceding Fiscal Quarters (for
example, if the Company has maintained the
specified Leverage Ratio for the Fiscal
Quarter ending September 27, 1998 and for
the Fiscal Quarter ending December 27, 1998,
the Commitment Fee will change). 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
Third Restated Credit Agreement the
Commitment Fee will automatically be
increased to the highest rate permitted
hereunder. As of the Closing Date, the
initial Commitment Fee will be 0.50%.
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 Third Restated Credit
Agreement and the other Loan Documents and
attendant documents and the closing of the
Credit Facilities, including but not limited
to environmental assessments and Collateral
audits and appraisals, shall be paid by the
Company to the Agent for the account of the
Agent on the Closing Date.
53
<PAGE> 62
d. AGENCY FEES. The Company shall pay to the
Agent for its own account a nonrefundable
agency fee (the "Agency Fee") equal to
$20,000 per annum payable on the Closing
Date and on each anniversary of the Closing
Date of each year.
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 computed and payable quarterly
in advance beginning on the date of issuance
and on the first Business Day of each
quarter thereafter:
<TABLE>
<CAPTION>
LEVERAGE RATIO LETTER OF CREDIT FEES
-------------- ---------------------
<S> <C>
SYMBOL 163 \f 1.50%
"Symbol" \s 12 2.50x
SYMBOL 241 \f 1.75%
"Symbol" \s 12 2.50x
SYMBOL 163 \f
"Symbol" \s 12 3.50x
SYMBOL 241 \f 2.00%
"Symbol" \s 12 3.50x
SYMBOL 163 \f
"Symbol" \s 12 4.25x
SYMBOL 241 \f 2.25%
"Symbol" \s 12 4.25x
</TABLE>
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. Commencing with
the Fiscal Quarter ending December 27, 1998,
the applicable Letter of Credit Fee will
change if the Company has maintained the
specified Leverage Ratio for the two
immediately preceding Fiscal Quarters (for
example, if the Company has maintained the
specified Leverage Ratio for the Fiscal
Quarter ending September 27, 1998 and for
the Fiscal Quarter ending December 27, 1998,
the applicable Letter of Credit Fee will
change). The applicable Letter of Credit Fee
will be adjusted as of the first day of the
month following
54
<PAGE> 63
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 Third Restated Credit
Agreement the applicable Letter of Credit
Fee will automatically be increased to the
highest rate permitted hereunder. As of the
Closing Date, the initial Letter of Credit
Fees will be 2.25%.
f. AUDIT FEES. The Company shall pay to the
Agent, for its own account, on demand,
$5,000.00 plus reasonable out-of-pocket
expenses for each annual audit performed by
or on behalf of the Agent with respect to
Inventory and/or receivables and payables of
the Company.
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
Third 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
55
<PAGE> 64
such amount and/or draw an Advance or (b) require the
Company to pay such amount; PROVIDED that if the
Company does not pay such amount upon demand therefor
by the Agent, such amount shall bear interest at the
Default Rate. The Company also does hereby authorize
each Lender, if and to the extent payment of any of
the Obligations owed to such Lender by the Company is
not made when due hereunder, to charge any amount so
due from time to time against any or all accounts of
any or all of the Company with such Lender.
2.13.5 FAILURE TO MAKE PAYMENTS BY COMPANY. Unless the Agent
will have received notice from the Company prior to
the date on which any payment is due to the Agent
hereunder that the Company will not make such payment
in full, the Agent may assume that the Company has
made such payment in full to the Agent on such date
and the Agent may, in reliance upon such assumption,
cause to be distributed to each Lender on such due
date an amount equal to the amount then due such
Lender. If and to the extent the Company will not
have so made such payment in full to the Agent, each
Lender will repay to the Agent forthwith on demand
such amount distributed to such Lender together with
interest thereon, for each day from the date such
amount is distributed to such Lender until the date
such Lender repays such amount to the Agent, at the
Federal Funds Rate. If and to the extent the Company
makes only partial payment to the Agent, each Lender
will repay to the Agent, in accordance with this
Section, only the amount distributed to such Lender
by the Agent, with interest thereon, that exceeds the
Lender's Ratable Portion of the partial payment
received by the Agent from the Company.SEQ LEVEL2 \H
\R0
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 Third 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
56
<PAGE> 65
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 Third 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 Company under this Third 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 Third Restated Credit Agreement, the Loans,
Letters of Credit and other obligations) or (iii)
will impose any other condition affecting this Third
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
57
<PAGE> 66
foreign law, rule or regulation, or (ii) compliance
with any directive, guidelines or request from any
central bank or other governmental authority (whether
or not having the force of law) promulgated, made, or
that becomes effective (in whole or in part) after
the date hereof affects or would affect the amount of
capital required or expected to be maintained by any
of the Lenders or any corporation directly or
indirectly owning or controlling any of the Lenders
and any Lender will have determined that such
introduction, change or compliance has or would have
the effect of reducing the rate of return on such
Lender's capital or on the capital of such owning or
controlling corporation as a consequence of its
obligations hereunder or under any of the Loans,
Letters of Credit or other Obligations or any
commitment to lend thereunder or relating thereto to
a level below that which any Lender or such owning or
controlling corporation could have achieved but for
such introduction, change or compliance (after taking
into account such Lender's policies or the policies
of such owning or controlling corporation, as the
case may be, regarding capital adequacy) by an amount
deemed by such Lender (in its sole discretion) to be
material, then, from time to time, the Company will
pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
2.15.3 CERTIFICATE OF LENDER. A certificate of a Lender
setting forth such amount or amounts as will be
necessary to compensate the Lender as specified in
Sections 2.15.1 and/or 2.15.2, above, will be
delivered to the Company and will be conclusive
absent manifest error. The Company will pay the Agent
for the account of the Lenders the amount shown as
due on any such certificate within thirty (30) days
after its receipt of the same. Failure on the part of
any Lender to deliver any such certificate will not
constitute a waiver of such Lender's rights to demand
compensation for any particular period or any future
period. The protection of this Section will be
available to any Lender regardless of any possible
contention of invalidity or inapplicability of the
law, regulation, etc. that results in the claim for
compensation under this Section. The agreements and
obligations contained in Section 2.15 will survive
the payment in full of the Obligations and any
termination of this Third Restated Credit
Agreement.SEQ LEVEL2 \H \R0
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
58
<PAGE> 67
conclusive and binding) that by reason of
circumstances affecting the interbank eurodollar
market, adequate and reasonable means do not exist
for ascertaining the Eurodollar Rate, or (b) the
Agent or any Lender shall have determined that the
Eurodollar Rate will not adequately and fairly
reflect the cost to the Agent of maintaining or
funding Eurodollar Rate Advances, the Agent promptly
shall give notice of such determination and the basis
therefor to the Company. If such notice is given, and
until such notice has been withdrawn by the Agent, no
additional Advances which are Eurodollar Rate
Advances shall be made and no additional conversions
to or continuations of Eurodollar Rate Advances shall
be permitted.
2.16.2 ILLEGALITY; TERMINATION OF COMMITMENTS.
Notwithstanding any other provisions herein, if any
law, treaty, rule or regulation, or determination of
a court, governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof (whether or not having the
force of law), or any change therein or in the
interpretation or application thereof, shall make it
unlawful or impossible for any Lender to make or
maintain Eurodollar Rate Advances, the obligation of
the Lenders hereunder to make or maintain Eurodollar
Rate Advances shall forthwith be canceled, and
outstanding Eurodollar Rate Advances shall be
converted to Base Rate Advances on either (a) the
last day of the applicable Interest Period for such
Advance if the Lenders may continue to maintain such
Advances until such day or (b) immediately if any
Lender may not continue to maintain such Advances.
Each Lender which becomes aware of any such event
which makes it unlawful or impossible for such Lender
to make or maintain Eurodollar Rate Advances promptly
shall notify the Company and the Agent of such event;
PROVIDED, HOWEVER, that the failure to provide any
such notice shall not affect the applicability of the
preceding sentence or the obligations of the Company
hereunder or under any of the other Loan
Documents.SEQ LEVEL2 \H \R0
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 Fixed Rate Advance or 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
59
<PAGE> 68
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: (i)
with respect to any Fixed Rate, in a
Treasury Security with maturity similar to
the remaining portion of the Interest
Period, present- valued at a discount rate
equal to the yield on such Treasury Security
and (ii) with respect to any Eurodollar
Advance, 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 Third
Restated Credit Agreement.SEQ LEVEL2 \H \R0
2.18 [INTENTIONALLY OMITTED].
2.19 USE OF PROCEEDS.
2.19.1 The proceeds of the Revolving Credit Loans will be
used exclusively for working capital purposes,
permitted capital expenditures, permitted
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<PAGE> 69
acquisitions and other general corporate purposes.
2.19.2 Draws on the Letters of Credit will be used to pay
principal, interest and any premiums when due on the
Bonds.
2.19.3 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.SEQ LEVEL1 \H \R0 SEQ LEVEL2
\H \R0
3. LOCK BOX; CASH COLLATERAL ACCOUNT.
3.1 LOCK BOX.
3.1.1 Until the expiration of this Third 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 authorizes the
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Agent to endorse the Item:
"Pay to the Order of Multi-Color Corporation"
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 Third
Restated Credit Agreement.
f. Telephone advice to the Company (Contact
Person: VP of Finance or his designee) of
the total amount of each deposit on a daily
basis at the 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
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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.
(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 Third 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
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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
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 Third 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.SEQ LEVEL2 \H \R0
3.2 CASH COLLATERAL ACCOUNT.
3.2.1 Until the expiration of this Third 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 Third 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 automatically charge the Cash
Collateral Account daily to reduce the amount
outstanding under the Credit Facilities whenever the
collected funds balance in the Cash Collateral
Account is greater than zero. The reduction will be
equal to the positive collected funds balance and
will be applied first to the payment of amounts
advanced
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<PAGE> 73
by the Agent on behalf of the Company or due for
insurance, taxes, attorneys' fees and any other
charges due from the Company hereunder, then (in such
order and manner as the Agent may determine) to
accrued interest under Advances outstanding under the
Revolving Credit Facility and last (in such order and
manner as the Agent may determine) to the unpaid
principal amount under Advances outstanding under the
Revolving Credit Facility (but not to any Advance
under any such Credit Facility, other than a Base
Rate Advance, unless the applicable Interest Period
for such Advance has expired). Funds remaining after
such application on any day will remain on deposit in
the Cash Collateral Account until such time as such
funds are transferred or applied pursuant to this
Section 3.2, above.
3.2.3 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.SEQ LEVEL1 \H \R0 SEQ LEVEL2 \H \R0
4. SINKING FUND.
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 $250,000 into the Sinking
Fund Account until the Termination Date. In addition, all
proceeds from the sale of assets permitted in accordance with
the terms of Section 9.25, below, and payments received on the
BKS Enterprises, Inc. Promissory Note, will be deposited into
the Sinking Fund Account. Notwithstanding the preceding
sentence, the Company may use up to an aggregate of $500,000
of the proceeds from the sale of assets permitted in
accordance with the terms of Section 9.25, below, to acquire
replacement assets reasonably acceptable to the Lenders, so
long as such replacement assets will automatically become part
of the Collateral without further action on the part of the
Company or any Lender. 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 SCOTTSBURG EXPANSION. Notwithstanding Section 4.1, above, the
Company may use the balance in the Sinking Fund Account as of
the Closing Date as well as
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each of the $250,000 deposits into the Sinking Fund Account
due in June 1998 and September 1998 (collectively, the
"Construction Funds") for the construction of the Scottsburg
Expansion, subject to the terms and conditions of this Section
4.2. By July 1, 1998, the Agent will transfer the balance in
the Sinking Fund Account as of the Closing Date to a separate
interest-bearing account at the Agent (the "Construction
Account"). The Company will deposit each of the $250,000
deposits into the Sinking Fund Account due in June 1998 and
September 1998 into the Construction Account at the time such
funds would otherwise have been deposited into the Sinking
Fund Account.
4.2.1 After December 15, 1998, the Company may utilize the
Construction Funds to construct the Scottsburg
Expansion, subject to the following conditions
precedent:
a. Any settlement between the Company, the
United States Environmental Protection
Agency and/or the Indiana Department of
Environmental Management relating to the
Scottsburg facility must result in annual
payments by the Company of not more than
$250,000.
b. The Company's cumulative Fiscal Year 1999
net income (exclusive of any increase to net
income associated with the Ohio
Environmental Protection Agency fine),
excluding extraordinary gains (including
specifically the gain resulting from the
refund or rebate to the Company from the
Ohio Bureau of Workers' Compensation in the
approximate amount of $300,000) and gains
from the sale of capital assets, must be at
least $300,000 through November 29, 1998.
c. No Default or Event of Default will have
occurred.
d. The Agent will have received, at the
Company's expense, an appraisal of the
Scottsburg facility assuming completion of
the Scottsburg Expansion in form and
substance acceptable to the Lenders in their
sole discretion.
e. The Company will have submitted to the Agent
plans and specifications and a development
budget for construction and completion of
the Scottsburg Expansion (including the
Company's equity, land acquisition costs,
construction costs, and professional fees
such as architect's and surveyor's fees), in
form and substance reasonably acceptable to
the Agent. In addition, the Company will
have submitted to the Agent a detailed
construction schedule for construction and
completion
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of the Scottsburg Expansion reasonably
acceptable to the Agent. Upon the Agent's
request, the Company will furnish to the
Lenders, at the Company's expense: (1)
copies of the building permits for the
project; (2) evidence that the proposed
improvements will comply with all applicable
building and safety codes, including but not
limited to the provisions of the Americans
with Disabilities Act; (3) evidence that
zoning, soil conditions, utility and sewer
availability and access are adequate for the
construction and use of the improvements;
and (4) other information regarding the
Scottsburg Expansion as the Agent may
reasonably request.
f. Requests for disbursements from the
Construction Account will be made in
writing, together with such supporting
documentation as the Agent may reasonably
request, including but not limited to copies
of affidavits of payment, receipts, invoices
and lien waivers from all contractors,
subcontractors and materialmen for all work
and materials for which payment is sought.
The Agent will have no obligation to make
disbursements more frequently than twice in
any 30-day period. Each request for a
disbursement from the Construction Account
will be delivered to the Agent at least ten
(10) Business Days prior to the requested
disbursement date.
4.2.2 Each Lender's representatives will be permitted to
inspect the Scottsburg Expansion at all reasonable
times.
4.2.3 The Company will cause the work, once commenced, to
be completed with due diligence and continuity, free
and clear of all liens. If a mechanic's lien is filed
arising out of any work on the Scottsburg Expansion,
the Company will satisfy or remove (by payment or
bond) such lien within 30 days after the filing
thereof. All work will be in conformity with the
construction contract for the project and with all
applicable government ordinances, codes, rules and
regulations.
4.3 Within thirty (30) days after substantial completion of the
Scottsburg Expansion, the Company will furnish to the Agent an
"as built" survey of the Scottsburg facility that delineates
all improvements, including the exterior dimensions and height
of all buildings, and the location of all driveways, parking
areas, sidewalks, retaining walls and other common area
improvements, and showing the location of all encroachments,
easements and setback lines.
5. COLLATERAL. The Collateral for the repayment of the Obligations will
include, but not be
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limited to the following:
5.1 A Collateral Assignment of Note, Loan Agreement and Mortgage
in the form of the attached Exhibit L, assigning the BKS
Enterprises, Inc. loan from the Company to BKS Enterprises,
Inc. to the Agent on behalf of the Lenders.
5.2 A Collateral Assignment of Mortgage in the form of the
attached Exhibit M, assigning the Mortgage from BKS
Enterprises, Inc. to the Company covering the real estate of
BKS Enterprises, Inc. located in Will County, Illinois, and
the rents, issues and profits thereof and other property
described therein.
5.3 A Conditional Assignment of Repurchase Contract in the form of
the attached Exhibit MM assigning Repurchase Contracts between
the Company and sellers for repurchase of plastic film
inventories at an agreed price to the Agent on behalf of the
Lenders.
5.4 An Amended and Restated Security Agreement executed by the
Company in the form of the attached Exhibit N, covering, as to
the Company, all inventory, receivables, equipment, general
intangibles, instruments and other property described therein.
5.5 [Intentionally Omitted].
5.6 An Open-End Mortgage, Assignment of Rents and Leases and
Security Agreement in the form of the attached Exhibit P (as
amended), covering the real estate of the Company located in
Boone County, Kentucky, and the rents, issues and profits
thereof and other property described therein.
5.7 An Open-End Mortgage, Assignment of Rents and Leases and
Security Agreement in the form of the attached Exhibit Q (as
amended), covering the real estate of the Company located in
Scott County, Indiana, and the rents, issues and profits
thereof and other property described therein.
5.8 An Amended and Restated Pledge and Security Agreement - Agency
or Custodian Account executed by the Company in the form of
the attached Exhibit R, covering the Sinking Fund Account.
5.9 A Pledge and Security Agreement of even date herewith executed
by the Company in favor of the Agent, covering the
Construction Account.
5.10 A Pledge Agreement executed by the Company in the form of the
attached Exhibit U, covering all of the stock of Laser Graphic
Systems, Incorporated owned by the Company.SEQ LEVEL1 \H \R0
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5.11 The Guarantee of Laser Graphic Systems, Incorporated executed
by Laser Graphic Systems, Incorporated in favor of the Lenders
in the form of the attached Exhibit V, and secured by a first
lien (other than Permitted Liens) on all of the inventory,
equipment, accounts, general intangibles and other personal
property of such guarantor pursuant to a Security Agreement
executed by Laser Graphic Systems, Incorporated in favor of
the Agent.
6. SECURITY AND SUBROGATION UNDER INDENTURE.
6.1 SECURITY. To further secure the Company's Letter of Credit
Obligations under this Third 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 Third
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
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has occurred and is continuing, the Agent will
release from the pledge of this Third 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 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 Third
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.SEQ LEVEL1
\H \R0 SEQ LEVEL2 \H \R0
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 Third 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 Third Restated Credit Agreement are subject
to the fulfillment of each of the following conditions:
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7.1.1 LOAN DOCUMENTS. The Agent has received, on behalf of
the Lenders, all amended Loan Documents duly executed
by the Company, 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.
7.1.3 RESOLUTIONS. The Agent has been furnished copies,
certified by the secretary or assistant secretary of
the Company, of the resolutions of the Board of
Directors of the Company authorizing execution,
delivery and performance of the amended Loan
Documents, together with a certificate of such
secretary or assistant secretary certifying the
names, titles, incumbency and signatures of the
officers of such corporation authorized to execute
any amended Loan Documents.
7.1.4 GOOD STANDING. The Agent has received, as to the
Company, 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 described in
Sections 5.6 and 5.7, above (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), in an amount per policy
of not less than $570,000 and $1,850,000,
respectively, showing fee simple title to such
Mortgaged Properties to be vested in the Company, and
showing and insuring the Mortgage on each such
Mortgaged Property to be a good and valid first lien
on the Company'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
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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
maintenance and service agreements, and other similar
documents or agreements shall be subject to the
Agent's review and approval. The foregoing Condition
Precedent initially was fulfilled on or about July
15, 1994.
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 to the title insurance companies to remove
the survey exceptions from the title insurance
policies. The foregoing Condition Precedent initially
was fulfilled on or about July 15, 1994.
7.1.8 INSURANCE. The Company shall provide to the Agent
evidence of all required insurance coverage under
Section 9.14 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. The foregoing Condition
Precedent initially was fulfilled on or about July
15, 1994.
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. The
foregoing Condition Precedent was fulfilled in March
1998.
7.1.11 ENVIRONMENTAL REQUIREMENTS. The Company shall provide
the Agent
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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
("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. The foregoing Condition Precedent
initially was fulfilled on or about July 15, 1994.
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 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. The foregoing
Condition Precedent has been fulfilled.
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 BORROWING BASE CERTIFICATE AND REPORTS. The Agent has
received a Borrowing Base Certificate dated as of
June 7, 1998, and the Reports described under Section
9.4 hereof for the month most recently ended.
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<PAGE> 83
7.1.16 FEES. The Agent and the Lenders have received full
payment of all fees, expenses and other amounts then
due under this Third Restated Credit Agreement.
7.1.17 [INTENTIONALLY OMITTED].
7.1.18 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. The foregoing Condition Precedent
initially was fulfilled on or about July 15, 1994.
7.1.19 NO DEFAULT. No Default or Event of Default exists.
7.1.20 REPRESENTATIONS AND WARRANTIES. All representations
and warranties of the Company contained in this Third
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.
7.1.21 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 7.1.19 and 7.1.20 have been satisfied as of
such date.
7.1.22 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. The foregoing Condition
Precedent initially was fulfilled on or about July
15, 1994.
7.1.23 COLLATERAL EVALUATION. The Agent shall have completed
its audit of the accounts receivable, inventory and
account payable and the results of such audit shall
be acceptable to the Lenders.
7.1.24 DOCUMENTATION AND PROCEEDINGS. All instruments in
connection with the transactions contemplated by this
Third Restated Credit Agreement and the Bond
Documents are satisfactory in form and substance to
the
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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 Third Restated Credit Agreement
and the Bond Documents, such documents where
appropriate to be certified by authorized officers of
the Company or proper governmental authorities.
7.1.25 OTHER DOCUMENTS. The Lenders have received such other
documents as they may have reasonably required in
connection with the transactions provided for in this
Third Restated Credit Agreement, all in form and
substance satisfactory to the Agent, including but
not limited to the Company's audited financial
statements for the most recently completed Fiscal
Year containing the unqualified opinion of Grant
Thornton LLP.
7.1.26 OTHER CONDITIONS. The conditions set forth in Section
7.2, below, shall have been fully satisfied.seq
level2 \h \r0
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 Third 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.SEQ LEVEL2 \H \R0
7.3 REPRESENTATION. Each Borrowing, 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 hereby
represents and warrants as
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follows:
8.1 ORGANIZATION. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
state in which it is incorporated, 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 and 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 balance sheet of the Company as of
March 29, 1998 and related statement of income and retained
earnings and statement of cash flows as of March 29, 1998, and
the interim balance sheets and statements of income and
retained earnings and cash flows of the Company for the six
(6) month period ended as of September 28, 1997, 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 periods ended as of March 29, 1998 and September 28, 1997,
respectively. Such financial statements have been prepared in
accordance with GAAP applied consistently with preceding
periods, subject to any comments and notes contained therein
(and subject in the case of such interim statements to normal
year-end audit adjustments).
8.3 RECENT ADVERSE CHANGES. Since March 29, 1998, the Company has
not 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.
8.4 RECENT ACTIONS. Since March 29, 1998, the business of the
Company has been conducted in the ordinary course and the
Company has not: (i) incurred any debt or other obligations or
liabilities, whether accrued, absolute, contingent or
otherwise, other than debt and liabilities incurred and
obligations under contracts entered into in the ordinary
course of business; (ii) discharged, satisfied, paid or
cancelled any debt or any obligations, absolute or contingent,
other than current
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liabilities shown on the financial statements referred to in
Section 8.2, above, and current liabilities incurred since
March 29, 1998 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. Since March 29, 1998, except for sales in the ordinary
course of business since that date, the Company has good and
marketable title to the assets reflected on the balance sheets
or notes thereon referred to in Section 8.2, above, free and
clear from all liens and encumbrances except for Permitted
Liens.
8.6 LITIGATION, ETC. Except as set forth in the Disclosure
Schedule, there are no actions, suits, proceedings or
governmental investigations pending or, to the 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 (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
has 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 Third
Restated Credit Agreement and has been duly authorized to do
so by appropriate action of its board of directors. This Third
Restated Credit Agreement, the Notes and the other Loan
Documents as amended, when executed and delivered by the
Company, constitute the legal, valid and binding obligations
of the Company, enforceable in accordance with their
respective terms except as limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the
enforceability generally of rights of creditors.
8.9 OTHER DEFAULTS. There does not now exist any material default
or violation by the Company of or under any of the terms,
conditions or obligations of: (i) its Articles of
Incorporation or Code of Regulations; (ii) any indenture, or
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
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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 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 Third Restated Credit Agreement nor the consummation of
any of the transactions herein contemplated (a) will result in
any default or violation by the Company of or under any of the
terms, conditions or obligation of (i) its Articles of
Incorporation or Code of Regulations; (ii) any indenture, or
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) result in or
require the creation of any lien, security interest or other
encumbrance (except as contemplated by this Third Restated
Credit Agreement) upon any of the assets of the Company.
8.11 PATENTS, LICENSES, ETC. The Company 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
possesses adequate licenses, patents, patent applications,
copyrights, trademarks, trademark applications, and trade
names to continue to conduct its business as heretofore
conducted, without any conflict with the rights of any other
person or entity.
8.12 ERISA. The Company and each of its ERISA Affiliates are in
compliance in all material respects with the applicable
provisions of ERISA and the regulations and published
interpretations thereunder. No Reportable Event has occurred
as to which the Company or any such ERISA Affiliate was
required to file a report with the PBGC, and, as of the
Closing Date, the present value of all benefit liabilities
under all the Plans (based on those assumptions used to fund
such Plans) did not, as of the last audited annual valuation
date applicable thereto, exceed by more than $500,000 the
aggregate value of the assets of such Plans. Neither the
Company nor any such ERISA Affiliate has incurred any
Withdrawal Liability that materially adversely affects the
financial condition of the Company and its ERISA Affiliates
taken as a whole. Neither the Company nor any such ERISA
Affiliate have received any notification that any
Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no
Multiemployer Plan is reasonably expected to be in
reorganization or to be
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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 REGULATION U. The Company is not engaged principally in, nor
does the Company have as one of its principal activities, the
business of extending credit for the purpose of purchasing or
carrying Margin Stock (as defined in Reg. U, 12 C.F.R. 221).
No part of the Advances will be used to purchase or carry any
Margin Stock, to extend credit to others for the purpose of
purchasing or carrying any Margin Stock or to retire
Indebtedness which was incurred to purchase or carry any
Margin Stock.
8.14 ENVIRONMENTAL MATTERS.
8.14.1 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.
8.14.2 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.
8.14.3 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
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owned or leased by the Company or any of its
Subsidiaries or any sites adjoining such property.
8.14.4 To the best knowledge of the Company, the Company and
each of its Subsidiaries have obtained all necessary
approvals or satisfactory clearances for use of its
assets from all governmental authorities, utility
companies, or development-related entities, in regard
to the use of its assets, the discharge of chemicals,
liquids and emissions, if any, and other chemicals
into the atmosphere, ground water or surface water,
from its operations.SEQ LEVEL2 \H \R0
8.15 INVESTMENT COMPANY ACT. The Company is not directly or
indirectly controlled by, or acting on behalf of, a person
which is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
8.16 GOVERNMENTAL CONSENTS. No consent, licenses, permits,
approvals or authorizations (other than customary permits,
approvals or authorizations required in connection with the
construction of the Scottsburg Expansion which will be
obtained when appropriate as construction progresses) 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 any amended Loan Documents or
any of the transactions contemplated thereby, or are otherwise
required to ensure the validity or enforceability of any of
the amended Loan Documents, which have not been obtained or
made.
8.17 DISCLOSURE. Neither this Third Restated Credit Agreement, any
of the other amended 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.
8.18 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.SEQ LEVEL1
\H \R0
9. AFFIRMATIVE COVENANTS. The Company covenants and agrees that from the
date of execution of this Third Restated Credit Agreement until all
Obligations to the Lenders have been fully paid and this Third 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 Third Restated Credit Agreement.
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<PAGE> 90
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, which financial
statements shall be (a) in reasonable detail and in form
reasonably satisfactory to the Agent, (b) 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 (i) 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, and (ii) setting forth
computations in reasonable detail and satisfactory to the
Agent that demonstrate compliance with the financial covenants
contained in Section 10 hereof. Such certificate will be in
the form of the attached Exhibit S. 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 BORROWING BASE CERTIFICATES. The Company will furnish the
Agent upon the request from time to time of the Agent but in
no event less often than monthly, a Borrowing Base Certificate
in the form of the attached Exhibit T. The Borrowing Base
Certificate will update accounts receivable monthly and will
update raw materials and finished goods inventory monthly. The
Agent will promptly send a copy of such certificate to each
Lender.
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9.5 [INTENTIONALLY OMITTED].
9.6 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
have observed or performed or satisfied all agreements,
orders, decrees or other requirements applicable to or imposed
upon them by any federal or state 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 S. 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.
9.7 ANNUAL AUDITS. The Company will permit the Agent, at the
Company's expense, to perform up to two audits per Fiscal Year
with respect to Inventory and/or receivables and payables of
the Company. At its discretion at any time after an Event of
Default, the Agent may perform such audits more frequently and
all such audits shall be at the Company's expense. At its
discretion at any time after an Event of Default, the Agent
may engage an independent appraiser to perform a valuation of
the Borrower 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.
9.8 ANNUAL STATEMENTS. The Company will furnish the Agent (i)
within forty-five (45) days after the end of each fiscal year,
copies of internally prepared annual financial statements of
the Company which will include a balance sheet of the Company
as of the end of such year, and a statement of income, retained
earnings and cash flow for such year and (ii) within ninety
(90) days after the end of each fiscal year, with copies of
annual audited financial statements for the Company, which will
include a balance sheet of the Company 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
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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.
9.9 AUDITOR'S LETTERS. The Company shall furnish copies of any
letter, other than routine correspondence or communications,
directed to the management of the Company by its auditors or
independent accountants, relating to its financial statements,
accounting procedures, financial condition, tax returns, or
the like, since December 31, 1995.
9.10 ANNUAL BUDGETS, FORECASTS AND COMPARISONS. At Agent's request,
within thirty (30) days of such request, 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, 9.6 and 9.8, above, the Company will deliver
statements for each division of the Company comparing actual
performance to projected and prior year's performance for such
period.
9.11 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.
9.12 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.
9.13 EXISTENCE; OPERATIONS. The Company will maintain and preserve
its corporate
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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.
9.14 INSURANCE. The Company 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 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
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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.
9.15 COMPLIANCE WITH LAWS. The Company 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 to pay or perform any of the Obligations or the
business, operations, assets, prospects or condition
(financial or otherwise) of the Company.
9.16 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.
9.17 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 or
entity (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 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).
9.18 BUSINESS NAMES AND LOCATIONS. The Company will immediately
notify the
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Agent of any change in the name under which the Company
conducts its business and, unless the Agent otherwise consents
in writing pursuant to this Third 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 each Company 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 conducts business.
9.19 ACCOUNTS. So long as any of the Credit Facilities are in
effect, the Agent will remain the primary bank of account of
the Company.
9.20 ERISA COMPLIANCE. The Company will (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 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.
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<PAGE> 96
9.21 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.
9.22 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.
9.23 [INTENTIONALLY OMITTED].
9.24 [INTENTIONALLY OMITTED].
9.25 SALE OF EQUIPMENT. The Company will use its best effort to
sell obsolete, under- utilized or idle assets. Subject to
Section 4.1, above, proceeds from the sale of such assets will
be deposited into the Sinking Fund Account.
9.26 EXCESS CASH FLOW. At the end of each Fiscal Year, the Company
will deposit 50% of Excess Cash Flow into the Sinking Fund
Account within forty-five (45) days of the end of each Fiscal
Year.
9.27 [INTENTIONALLY OMITTED].
9.28 RECEIVABLES AND PAYABLES AGING. The Company will furnish to
the Agent upon the request from time to time of the Agent, but
in no event less often than monthly within thirty (30) days
after the end of each calendar month, an aging report of
receivables and payables, in form satisfactory to the
Agent.SEQ LEVEL1 \H \R0
10. NEGATIVE COVENANTS. The Company covenants and agrees that from the date
of execution of this Third Restated Credit Agreement until all of the
Obligations have been fully paid and this Third Restated Credit
Agreement terminated it will 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 Third
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<PAGE> 97
Restated Credit Agreement).
10.2 LEASES. Enter into or permit to remain in effect any rental or
lease agreement for real or personal property whose term
(including renewal options) exceeds five (5) years or if
aggregate annual rental payments under all lease agreements
for real and personal property on an annual basis would, when
combined with the annual rental payments of Laser Graphic
Systems, Incorporated, exceed $600,000.
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 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 CASH FLOW COVERAGE RATIO. During the following periods, permit
the Cash Flow Coverage Ratio to be less than:
<TABLE>
<CAPTION>
CASH FLOW COVERAGE RATIO At the end of each Fiscal Quarter during the period
------------------------ ---------------------------------------------------
<S> <C>
1.10 Closing Date through June 28, 1998
0.80 June 29, 1998 through September 27, 1998
0.85 September 28, 1998 through December 27, 1998
0.95 December 28, 1998 through March 28, 1999
1.00 March 29, 1999 through September 26, 1999
1.10 September 27, 1999 and at the end of each Fiscal
Quarter thereafter
</TABLE>
10.5 CURRENT RATIO. During the following periods, permit the
Current Ratio to be less than:
<TABLE>
<CAPTION>
CURRENT RATIO At the end of each month during the period
------------- ------------------------------------------
<S> <C>
0.90 Closing Date through June 28, 1998
</TABLE>
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<PAGE> 98
<TABLE>
<S> <C>
1.00 June 29, 1998 through November 1, 1998
1.00 November 2, 1998 through March 28, 1999
1.05 March 29, 1999 and thereafter
</TABLE>
10.6 TOTAL LIABILITIES TO TANGIBLE NET WORTH. During the following
periods, permit the ratio of (i) total liabilities less the
Sinking Fund Account balance, less the Construction Account
balance and less any liability for fines to the Indiana
Department of Environmental Management to (ii) Tangible Net
Worth to be greater than:
<TABLE>
<CAPTION>
TOTAL LIABILITIES TO TANGIBLE At the end of each month during
NET WORTH the period
<S> <C>
5.00 Closing Date through June 28, 1998
4.75 June 29, 1998 through December 27, 1998
4.60 December 28, 1998 through June 27, 1999
4.25 June 28, 1999 through December 26, 1999
4.00 December 27, 1999 and thereafter
</TABLE>
10.7 MINIMUM TANGIBLE NET WORTH.
10.7.1 Permit Tangible Net Worth (without reducing Tangible
Net Worth by any recorded liabilities to the Indiana
Department of Environmental Management) at any time
to be less than $4,500,000 through June 28, 1998,
plus 75% of positive consolidated net income (with no
deductions for net losses), plus 100% of any equity
infusion, less dividends permitted under Section
10.12, below, and permitted treasury stock purchases,
calculated in accordance with generally accepted
accounting principles, on a cumulative basis for all
periods since March 29, 1998. Tangible Net Worth will
be calculated on a cumulative basis and will be
tested at the end of each month.
10.7.2 Permit Tangible Net Worth (after reducing Tangible
Net Worth by any recorded liabilities to the Indiana
Department of Environmental Management) at any time
to be less than $3,500,000 through June 28, 1998,
plus 75% of positive consolidated net income (with no
deductions for net losses), plus 100% of any equity
infusion, less dividends permitted under Section
10.12, below, and permitted treasury stock purchases,
calculated in accordance with generally accepted
accounting principles, on a cumulative basis for all
periods since March 29, 1998. Tangible Net Worth will
be calculated on a cumulative basis and will be
tested at the end of each month.
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<PAGE> 99
10.8 [INTENTIONALLY OMITTED].
10.9 GUARANTEES. Except in connection with the endorsement and
deposit of checks in the ordinary course of business for
collection, guarantee, endorse, assume or otherwise in any way
be or become contingently liable or responsible for, directly
or indirectly, the obligation of any Person.
10.10 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.
10.11 REDEMPTIONS. Purchase, retire, redeem or otherwise acquire for
value, directly or indirectly, any shares of its capital stock
now or hereafter outstanding, or authorize or set aside any
funds or other property for any such purpose; PROVIDED,
HOWEVER, that so long as (i) no Default or Event of Default
has occurred and is continuing, (ii) the Company has
maintained a ratio of total liabilities to Tangible Net Worth
(as described in Section 10.6 hereof) of 3.0 or less for each
of the two immediately preceding Fiscal Quarters and (iii) the
Company has maintained a Leverage Ratio of 2.5 or less for
each of the two immediately preceding Fiscal Quarters, the
Company may redeem outstanding shares of its common stock, but
in no event may the Company utilize more than $25,000 in any
Fiscal Year for such purpose.
10.12 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; PROVIDED, HOWEVER, that so long as (i) at the
time of making or declaring such dividends and after giving
effect thereto no Default or Event of Default exists, (ii) the
Company has maintained a ratio of total liabilities to
Tangible Net Worth (as described in Section 10.6 hereof) of
3.0 or less for each of the two immediately preceding Fiscal
Quarters and (iii) the Company has maintained a Leverage Ratio
of 2.5 or less for each of the two immediately preceding
Fiscal Quarters, the Company may pay dividends on preferred
stock up to an aggregate amount of $300,000 in any Fiscal
Year. No dividend may be paid if a Default or Event of Default
has been waived by the Lenders, but not cured by the Company.
10.13 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 Subsidiary, Laser Graphic Systems,
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<PAGE> 100
Incorporated, not to exceed $750,000 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.
10.14 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 as permitted by
Section 9.25 hereof or with the prior written consent of the
Agent.
10.15 CAPITAL EXPENDITURES. Make capital expenditures, including the
capitalized value of any leases, which, when calculated in
accordance with GAAP and added to all other capital
expenditures of the Company, would exceed (i) $3,500,000 (but
no more than $2,000,000 in connection with the Scottsburg
Expansion) during Fiscal Year 1999 and (ii) $1,750,000 during
any Fiscal Year thereafter. Except with respect to unexpended
amounts for the Scottsburg Expansion, unexpended amounts from
the prior Fiscal Year may not be carried forward to the next
Fiscal Year.
10.16 ACQUISITIONS. Purchase, lease or otherwise acquire all or any
substantial part of the assets of any Person, or create any
Subsidiary, or enter into any joint venture or partnership, or
permit any Subsidiary to do any of the foregoing
(collectively, "Acquisitions") without the Lenders' prior
written consent.
10.17 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
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<PAGE> 101
steps by the Company at its expense.
10.18 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.
10.19 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.
10.20 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.
10.21 PAYMENTS TO SHAREHOLDERS AND AFFILIATES. Except for payments
permitted by Sections 10.12 and 10.13 and except for
reasonable and customary salaries and bonuses made in
accordance with Section 10.22, below, make any payment or
distribution (including, without limitation, debt repayment,
payment for goods or services, or otherwise) to its
shareholders or to any Affiliate without the prior written
consent of the Agent.
10.22 SALARIES AND DEFERRED COMPENSATION. Pay any deferred
compensation to any officers of the Company or increase the
compensation of its officers or senior management without the
prior written consent of the Agent, which consent will not be
withheld unreasonably.
10.23 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 Third 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.
10.24 POST-CLOSING MATTERS. Fail to deliver to the Lender the
documents, if any, noted as post-closing items on the Closing
Document List of even date herewith. Such documents will be
delivered on or before the date specified in the Closing
Document List and will be in form and substance satisfactory
to the Lenders.
10.25 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
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<PAGE> 102
under the Indentures.
10.26 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.
10.27 EXCESS BORROWING. Permit the Advances to violate any of the
applicable Revolving Conditions.
10.28 CASH FLOW. During the following periods, permit the sum of (i)
net income plus or minus non-cash gains or losses (including
depreciation and amortization) as determined in accordance
with GAAP, plus (ii) depreciation and amortization, but
excluding any non-cash gains or losses and excluding any fines
or liabilities paid to the Indiana Department of Environmental
Management, to be less than:
<TABLE>
<CAPTION>
CASH FLOW At the end of each Fiscal Quarter during the period
--------- ---------------------------------------------------
<S> <C> <C> <C>
$550,000 Closing Date through June 28, 1998
$1,050,000 June 29, 1998 through September 27, 1998
$1,650,000 September 28, 1998 through December 27, 1998
$2,350,000 December 28, 1998 through March 28, 1999
$2,400,000 March 29, 1999 and as of the end of each Fiscal
Quarter thereafter
</TABLE>
During the first four Fiscal Quarters after the Closing Date,
the Company's compliance with this Section will be tested at
the end of each Fiscal Quarter on a trailing basis, with an
additional Fiscal Quarter added to the calculation as each
Fiscal Quarter elapses (i.e., at the end of the second Fiscal
Quarter after the Closing Date, the Company's compliance with
this Section will be tested on a trailing basis over the
immediately preceding two Fiscal Quarters and at the end of
the third Fiscal Quarter after the Closing Date, the Company's
compliance with this Section will be tested on a trailing
basis over the immediately preceding three Fiscal Quarters,
etc.). Thereafter, the Company's compliance with this Section
will be tested each quarter for the preceding four Fiscal
Quarters on a rolling four quarter basis.
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
Third Restated Credit Agreement,
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<PAGE> 103
(c) any amounts due under this Third 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 Third 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 Third
Restated Credit Agreement, in any other Loan Document or in
any report, certificate, opinion (including any opinion of
counsel to the Company), financial statement or other
instrument furnished at any time under or in connection with
this Third 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
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<PAGE> 104
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 Third 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 Third 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 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 [INTENTIONALLY OMITTED].
11.12 OTHER INDEBTEDNESS. A default in payment with respect to any
Indebtedness in
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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 Third Restated Credit
Agreement; or
11.13 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,
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
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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.SEQ LEVEL1 \H \R0
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
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consent of the Agent and the Lenders, so long as this
Third Restated Credit Agreement is in effect or any
obligations exist between the Company and the Lenders
pursuant thereto or pursuant to the Security
Documents. The Lenders will cooperate with each other
with regard to all such actions with respect to such
Collateral and in all events, sums due and owing the
Lenders under this Third 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.SEQ LEVEL2 \H \R0
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 Third 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.
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12.3 SHARING OF PAYMENTS, ETC.
12.3.1 Except as otherwise expressly required by the terms
of this Third 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 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 Third 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.
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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 Third 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.SEQ LEVEL2 \H \R0
12.4 RECEIPT OF PAYMENTS BY LENDERS. Should any payment or
distribution not permitted by the provisions of this Third
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 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
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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.SEQ LEVEL1 \H \R0
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 Third Restated Credit Agreement, the Security Documents and the
issuance of the Notes.
14. ENVIRONMENTAL INDEMNIFICATION. The Company assumes any liability or
obligation of, or claims asserted against the Agent or any of the
Lenders for loss, damage, fines, penalties, claims or duty to clean-up
or dispose of wastes or materials on or relating to any of its assets,
real or personal, owned or leased, regardless of any inspections of
such assets made by the Agent or the Lenders prior to the consummation
of this transaction or
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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 Third Restated Credit
Agreement.
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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 Third 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 Third 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 Third 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 Third
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 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 Third 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
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to any Lender for any statements, warranties or
representations made in or in connection with this Third
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 Third 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 Third 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 Third 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 Third 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 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
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analysis and decision to enter into this Third 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 Third 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 Third 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 Third 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 Third 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 Third
Restated Credit Agreement.
15.6 SUCCESSOR AGENT. The Agent may resign at any time as Agent
under this Third 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 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
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Agent will be discharged from its duties and obligations under
this Third Restated Credit Agreement; PROVIDED, HOWEVER, that
the successor Agent will not be considered as a Lender for
purposes of this Third 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 Third
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 Third 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 Third 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 Third Restated Credit
Agreement or with respect to any Collateral,
without the prior written consent of all the
Lenders.SEQ LEVEL2 \H \R0
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 Third 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.SEQ LEVEL1 \H \R0
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
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power arising as a result thereof or affect any subsequent
default or any other default of the same or a different
nature. No disbursement of Advances, issuance of Letters of
Credit or Standby Letters of Credit or disbursement under
Letters of Credit or Standby Letters of Credit hereunder will
constitute a waiver of any of the conditions to the Lenders'
obligation to make further disbursements; nor, in the event
that the Company is unable to satisfy any such condition, will
any such disbursement have the effect of precluding the
Lenders from thereafter declaring such inability to be a
Default or an Event of Default. No modification or waiver of
any provision of this Third 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 Third 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
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determine the reasonableness of the period which may elapse
prior to the making of demand for any payment upon the Company
and need not pursue any remedy or remedies against any
particular Company, any other Person or any Collateral before
having recourse against the Company hereunder.
16.2 NOTICES. All notices, demands, requests, consents or approvals
required hereunder will be in writing (including telegraphic,
telex, facsimile or cable communication) and mailed,
telegraphed, telexed, transmitted, cabled or delivered to such
party at the address set forth below (or at such other address
as such party may specify to the other party in writing). All
such notices and communications will, when mailed,
telegraphed, telexed, transmitted or cabled, be effective when
deposited in the mails (postage prepaid), delivered to the
telegraph company, confirmed by telex answerback, transmitted
by telecopier or delivered to the cable company, respectively,
except that notices and communications to the Agent pursuant
to Sections 2 or 15, above, will not be effective until
received by the Agent.
To the Agent: PNC Bank, National Association
201 East Fifth Street, 3rd Floor
P.O. Box 1198
Cincinnati, Ohio 45201-1198
Attention: Middle Market Banking
Telecopier No.: (513) 651-8952
To the Company Multi-Color Corporation
or the Authorized 205 West Fourth Street, Suite 1140
Company Cincinnati, Ohio 45202
Representative: Attention: William B. Cochran
Telecopier No.: (513) 381-2813
To the Lenders: PNC Bank, National Association
201 East Fifth Street, 3rd Floor
P.O. Box 1198
Cincinnati, Ohio 45201-1198
Attention: Middle Market Banking
Telecopier No.: (513) 651-8952
Talbott Tower, Suite 1408
131 North Ludlow
Dayton, Ohio 45402
Attention: John Pollock
Telecopier No.: (937) 461-0753
16.3 SUCCESSORS AND ASSIGNS.
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16.3.1 This Third 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 Third Restated Credit Agreement in whole or in
part without the prior written consent of the Agent
and, so long as no Event of Default has occurred, the
Lenders and the Agent may not assign this Third
Restated Credit Agreement in whole or in part without
the prior written consent of the Company except as
otherwise set forth herein.
16.3.2 Each Lender may sell participations to one or more
banks or other entities in all or a portion of its
rights and obligations under this Third 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 Third 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 Third Restated Credit Agreement and (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. 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 Third Restated Credit Agreement with respect to
its participating interest, in each case, as if such
participant were a Lender.
16.3.3 Any Lender may, in connection with any participation
or proposed participation pursuant to this Section
16, disclose to the participant or proposed
participant, any information relating to the Company
furnished to such Lender by or on behalf of the
Company.SEQ LEVEL2 \H \R0
16.4 MODIFICATIONS. No modification, amendment or waiver of any
provision of this Third 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
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in any event be effective unless the same is in writing signed
by all the Lenders and the Company and specifically refers to
this Third 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)
change the rate of interest on any Note held by any Lender; or
(f) postpone any date fixed for any payment of principal of,
or interest on, any of the Notes; 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
Third 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.
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 Third 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 Third 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.
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16.7 HEADINGS. The headings in this Third 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 Third
Restated Credit Agreement. The purpose of this Third 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 Third 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 Third 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 Third 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 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 BY THE COMPANY. The Company
represents and warrants that the Company does not have 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
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Prior Related Event. As an inducement to the Lenders and the
Agent to enter into this Third Restated Credit Agreement, the
Company 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 Third 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
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 Third Restated Credit
Agreement and the other amended Loan Documents; in amending,
supplementing, waiving or enforcing provisions of this Third
Restated
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Credit Agreement and the other amended Loan Documents; in
collecting any sum which is not paid when due under this Third
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 Third 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 Third 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 Third 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 Third 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 Third Restated Credit Agreement.
16.15 CONTINUING AGREEMENT. This Third 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 Facilities,
Commitments, Letters of Credit and Standby Letters of Credit
are terminated.
16.16 COMPLETE AGREEMENT. This Third 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
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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
THIRD 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 THIRD 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
THIRD RESTATED CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS OR
ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH AGREEMENTS.
Signed at Cincinnati, Ohio, effective as of June 22, 1998.
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MULTI-COLOR CORPORATION,
AS COMPANY
By: /s/ William R. Cochran
Print Name: William R. Cochran
Title: VP/CFO
PNC BANK, NATIONAL ASSOCIATION,
ON ITS OWN BEHALF AS LENDER, AND AS AGENT
By: /s/ Timothy E. Reilly
Print Name: Timothy E. Reilly
Title: Vice President
COMERICA BANK,
AS LENDER
By: /s/ John C. Pollock
Print Name: John C. Pollock
Title: Vice President
116
<PAGE> 1
EXHIBIT 10.16
AGREEMENT
This Agreement made and entered into as of the 20th day of November,
1997, by and between Multi-Color Corporation, a ____________ corporation
(sometimes called "Seller"), and James L. Deckebach, dba Wine Racks Unlimited
(hereinafter sometimes called "Purchaser").
For good and valuable consideration, the receipt and adequacy of which
is acknowledged by the parties hereto, and in consideration of the premises,
conditions and covenants herein contained, Seller and Purchaser do hereby
mutually agree as follows:
1. Agreement to Buy and Sell: Seller hereby agrees to sell and convey,
and Purchaser hereby agrees to purchase the real estate known as 4575 Eastern
Avenue, Cincinnati, Ohio and the land pertaining thereto, as more fully
described in Exhibit A attached hereto and made a part hereof being all of the
land owned by Seller in the area, consisting of a building containing
approximately three hundred forty-five thousand eight hundred nine (345,809)
square feet located on approximately 6.7 acres of land, net of highways, in
Hamilton County, Ohio, together with all rights, privileges, easements and
appurtenances pertaining thereto, including any right, title and interest of the
Seller in and to the adjacent streets, roads, alleys and rights of way ("Real
Property") and together with those items listed in Exhibit B attached hereto
(collectively the "Property"), all on the terms and at the purchase price as set
forth hereinafter. The Property shall specifically exclude the Solvent Recovery
System currently situated on the Real Property. Purchaser shall provide Seller
with a license to keep such Solvent Recovery System in the parking lot for the
Real Property for a period of one (1) year from the date of closing. As a
condition of this License, Seller agrees to have such Solvent Recovery System
drained, and to remove all related ducts from the building on the Property and
repair any damage caused by such removal. Additionally, the Property shall
exclude Press 403 which is currently situated in Building 17 on the Real
Property. Purchaser shall, upon twenty-four (24) hours written notice, provide
access to Seller to the parking lot area to allow Seller to deal with the
Solvent Recovery System, which inspections shall only occur during Purchaser's
business hours at time which do not interfere with Purchaser's business
operations. Seller shall indemnify and hold Purchaser harmless for any losses,
claims, damages or injuries to persons or property arising out of Seller's or
its agents, employees or business invitees use of the parking area under the
terms hereof.
2. Purchase Price: The purchase price for the Property shall be Nine
Hundred Fifty Thousand and no/100 ($950,000.00) Dollars, payable as follows:
(a) The sum of Twenty Thousand and no/100 ($20,000.00) Dollars
by check has been paid pursuant to that certain letter agreement
between Seller and Purchaser dated November 20, 1997 ("Letter
Agreement") as earnest money to apply toward the purchase price, to be
held by Cincinnati Commercial Real Estate, Inc., in trust, pending the
closing of this transaction. If this Agreement is rejected or expires,
or if the contingencies provided for herein are not satisfied, or if
Purchaser elects to terminate as provided herein, or in the
<PAGE> 2
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event of Seller's default, then this earnest money shall be promptly
returned to the Purchaser. In the event of Purchaser's default, this
earnest money shall be forfeited and paid to the Seller, as liquidated
damages, and Seller's sole remedy.
(b) At closing, subject to adjustments and prorations,
Purchaser shall pay to Seller the balance of the purchase price by bank
cashier's check or by bank wire transfer of immediately available
funds.
3. Title: The Seller hereby covenants and agrees to convey good,
marketable and insurable (at regular rates) title to the Property to the
Purchaser at the closing by deed of general warranty, in transferable and
recordable form, in fee simple absolute, free, clear and unencumbered, except
for non-delinquent real estate taxes, leases and licenses provided for herein
and title exceptions approved by Purchaser.
4. Representations and Warranties of Seller: Seller hereby represents
and warrants the following to Purchaser for the purpose of inducing Purchaser to
enter into this Agreement and to consummate the sale of the Property, each and
all of which representations and warranties shall be true as of the closing, and
shall survive the closing and the conveyance of title to Purchaser:
(a) There have been no claims, notices, orders, or directives
made or delivered to or served on Seller or its agents or of which
Seller or its agents are aware, issued by any governmental department
or agency having jurisdiction over the Property, affecting the Property
or any part thereof or requiring any work to be done upon or about the
Property or any part thereof. Any such claims, notices, orders, or
directives heretofore made or delivered or served on Seller or Seller's
predecessors in title or interest in the Property have been complied
with. There is no violation of any law or ordinance or private rights
affecting or pertaining to the Property or any portion thereof
including but not limited to violations of federal, state or to the
best of Seller's knowledge, local environmental laws.
(b) There are no parties in possession of any part of the
Property as lessees, tenants at will, tenants at sufferance or
trespassers.
(c) No proceedings are pending or threatened before any legal
or administrative agencies having jurisdiction thereof affecting any of
the Property or with respect to any real estate taxes or assessments on
any of the Property, and no proceedings are pending with respect to any
evidence of indebtedness affecting any of the Property, and there is
not now pending or threatened any litigation with respect to the
ownership of any of the Property or the rights of Seller to enter into
this Agreement and to convey any of the Property.
(d) Until the closing date Seller shall (I) perform and pay
all existing obligations pending; (ii) maintain the Property in good
repair and in the same condition as it is as of the date of this
Agreement, normal wear and tear excepted; (iii) continue to operate and
manage the Property in a reasonable, diligent, and prudent mariner; and
(iv) not further encumber the Property, except as set forth herein
regarding the Pre-Closing Lease.
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(e) All real and personal property taxes due as of the
closing, all storm water assessments, and all assessments that are a
lien on the Property have been or will be paid. There are no liens
against the Property or any portion thereof for improvements, taxes,
(except current, nondelinquent installments) or otherwise, and there
are no claims pending to the knowledge of Seller which would result in
the creation of any such liens, including but not limited to, liens for
water, sewer, street, electrical current, or improvements in progress.
Seller hereby agrees to indemnify and hold harmless Purchaser and the
Property from and against any and all such claims resulting from acts
or omissions of Seller or Seller's predecessors in title or interest in
connection with any such claims, regardless of the amount thereof.
(f) The Property has full and free access to and from a public
highway, street or road and to the best knowledge and belief of Seller,
there is no pending or threatened governmental proceeding which would
impair or result in the termination of such access.
(g) No construction work or installation of fixtures which
could result in a mechanic's lien on the Property has taken place
within seventy-five (75) days preceding the date of this Agreement and
no such construction is anticipated or will be permitted prior to the
closing. Seller further covenants and agrees to hold Purchaser harmless
from any and all mechanics' liens arising from construction work or
installation of fixtures and to indemnify Purchaser for expenses
incurred, including reasonable attorneys' fees and court costs, in the
discharge of such liens.
(h) There are no easements or other rights of way or rights of
ingress or egress on, over or through the Property, or any part
thereof, that are not of record, whether arising by prescription,
adverse possession or otherwise.
(i) To the best of Seller's knowledge, there are no solid
wastes, hazardous wastes, hazardous substances, toxic substances,
contaminants or pollutants, including, but not limited to, petroleum
products, asbestos, polychlorinated biphenols, formaldehyde or
infectious, radioactive, biologically contaminated, or disease causing
materials (hereinafter collectively referred to as "Hazardous
Substances") in, on, about, or leaching onto or from the Property
except as disclosed in that certain Phase I Environmental Report
prepared by ATC Associates dated June 26, 1997, which will be removed
from the Property as of the date of closing unless otherwise agreed in
writing by Seller and Purchaser. Seller has not allowed or caused any
Hazardous Substances to be dumped or disposed of on the Property.
(j) Seller has not filed a petition for relief under Title 11
of the United States Code, or any similar state law including an
assignment for the benefit of creditors or a receivership, that no
involuntary petition for relief under Title 11 of the United States
Code or any similar state law including an assignment for the benefit
of creditors or a receivership has been filed against it; and, that the
Property is not under the jurisdiction of any bankruptcy court in any
other related bankruptcy proceeding.
<PAGE> 4
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5. Contingencies:
(a) This Agreement, and Purchaser's obligations hereunder, is
expressly conditioned upon satisfaction within the period beginning
with the date of execution of this Agreement and ending on the date
which is sixty (60) days after the execution of this Agreement
("Inspection Period") of each and every one of the following conditions
in a mariner satisfactory to Purchaser in its sole discretion:
(i) That the Property be zoned by the City of
Cincinnati, Hamilton County, Ohio and/or any other
governmental entity having jurisdiction over the Property for
the operation of an office, manufacturing and showroom
facility, and all other associated improvements.
(ii) That Purchaser shall determine to its
satisfaction that utilities for water service, telephone
service, and electric service and/or gas service sufficient to
service Purchaser's proposed use of the Property as set forth
herein are installed at the property line and, in fact, are
available and may be tapped into or connected into at the
property line and that such utilities may be extended into the
Property and that the cost of such utilities to operate the
Leased Premises on a continuing basis is acceptable to
Purchaser.
(iii) That Purchaser shall determine to its
satisfaction that sanitary sewers sufficient to service
Purchaser's proposed use of the Property as set forth herein
are available at the property line or are available off the
Property but may be extended to the property line, and that
such sanitary sewers may be tapped into or connected into and
may be extended into the Property, and that Purchaser shall
acquire or determine that it can acquire such easements as may
be necessary to accomplish the same.
(iv) That Purchaser obtain financing to purchase the
Property on terms and conditions satisfactory to Purchaser.
(v) That Purchaser, at Purchaser's expense obtain a
title exam and survey of the Property, the results of which
are satisfactory to Purchaser.
(vi) That Purchaser and Seller enter a Lease in which
Seller agrees to lease back certain parts of the Property on
terms and conditions set forth in the Lease, a copy of which
is attached hereto as Exhibit C, simultaneously with the
closing on the Property. The terms of such Lease shall
include, but not be limited to the following:
(a) Rent shall be $2.00 per square foot per
annum;
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(b) Within 25 days after the execution of
this Agreement, Seller shall inform Purchaser of its
need for space in Buildings other than #10A, l0B, 11,
12, 13, 16, 17, 18, 19, 21, and other than 8,000
square feet of office space on the third floor as
specified by Purchaser. Seller may request common
access to the dock door at the end of Building #8.
(c) Within 25 days after the execution of
this Agreement, Seller shall inform Purchaser of a
proposed term for the Lease.
(vii) That Purchaser, at Purchaser's expense, inspect
or cause to be inspected the Property and all improvements
thereon, including but not limited to the structural integrity
thereof, the roof, heating, ventilating, air conditioning,
plumbing and electrical systems and fixtures, the results of
which are satisfactory to Purchaser.
(b) If the foregoing conditions in this Paragraph 5 are not
satisfied or waived by Purchaser on or before the expiration of the
Inspection Period, then Purchaser shall notify Seller in writing of
such condition and Seller shall have ten business days to determine
whether or not Seller desires to remedy such condition(s). In the event
Seller elects to remedy such condition(s), Seller shall complete such
remedy within 20 business days of receiving notice from Purchaser of
the unacceptable condition(s). In the event that Seller elects not to
remedy the condition(s) or in the event such condition(s) is not
remedied within the aforesaid 20 business day period, Purchaser shall
have the option to terminate the Agreement. In the event Purchaser
elects to terminate this Agreement, the earnest money deposit shall be
immediately refunded to Purchaser and thereupon this Agreement shall be
null and void and both parties shall be relieved of all further
obligation or liability hereunder. If Purchaser fails to terminate this
Agreement on or before twenty-five (25) business days after the end of
the Inspection Period, the contingencies contained in this paragraph
shall be deemed waived
6. Pre-Closing Lease. In the event Seller and Purchaser have not
closed the transaction contemplated herein on or before March 1, 1998, Seller
and Purchaser shall enter into a Pre-Closing Lease in which Seller agrees to
lease to Purchaser certain parts of the Property on terms and conditions set
forth in the Pre-Closing Lease, a copy of which is attached hereto as Exhibit D.
The terms of such Pre-Closing Lease shall include but not be limited to the
following:
(a) Rent shall be $1.00 per square foot per
annum;
(b) Purchaser shall lease 96,000 square feet
to be designated by Purchaser as manufacturing and
office area.
(c) The Pre-Closing Lease shall commence on
March 1, 1998 and terminate on the earlier of (i) the
date of closing or (ii) February 28, 2000.
7. Closing and Closing Pro-Rations: The closing shall be held thirty
(30) days after the
<PAGE> 6
- 6 -
expiration of the Inspection Period ("closing"). The closing shall be held at
the offices of Graydon, Head & Ritchey at a time mutually agreeable to Seller
and Purchaser. Real estate taxes and assessments, if any, shall be prorated to
the date of closing based upon the latest available real estate tax bill. Seller
shall pay for all state and/or county transfer taxes required to be paid upon
conveyance, and the cost of recording corrective instruments and survey plats.
The cost of recording the deed shall be paid by the Purchaser. The cash at
closing shall be adjusted for all closing costs and prorations.
8. Possession: Possession will be delivered by Seller to Purchaser at
closing. All utilities and current operating expenses shall be prorated as of
the date of delivery of the deed.
9. Environmental Inspection and Remediation. Seller shall, on or before
the execution date of this Agreement, contract with an environmental engineering
firm acceptable to Purchaser's lender to conduct a Phase II Environmental Study
of the Property, which shall be completed on or before January 2, 1998 ("Phase
II Study"). Within fourteen (14) days of receipt of the results of such Phase II
study and the proposed remediation called for therein, the parties will:
(a) If the cost of the remediation is $300,000 or less,
develop a plan to effectuate such remediation consistent with the
recommendations of the environmental consultant in timing and
compliance; or
(b) If the cost of the remediation is more than $300,000,
determine whether such remediation is cost feasible and if so, develop
a plan to effectuate such remediation consistent with the
recommendations of the environmental consultant in timing and
compliance. If either party determines that such remediation is not
cost feasible or the parties cannot agree on a plan of remediation,
either party may terminate this Agreement.
Purchaser agrees to keep the results of the Phase II study confidential. Seller
may seek remedies both in law and in equity upon Purchaser's breach of the
Agreement to keep such results confidential.
Buyer and Seller will share equally in the cost of the Phase II study upon
closing. In the event this Agreement is terminated, Purchaser shall have no
obligation to share in the cost of the Phase II Study.
10. Seller's Work. On or before February 15, 1998 Seller shall
complete, at Seller's sole cost and expense, the repairs listed in Exhibit E, to
Purchaser's satisfaction. In the event Seller does not make such repairs as
listed in Exhibit E, Purchaser shall have the right to (a) terminate this
Agreement by written notice to Seller or (b) proceed with the Agreement and
deduct from the Purchase Price one and one-half times the cost of making such
repairs.
11. Seller's Information. Within fifteen (15) days after execution of
this Agreement by Seller and Purchaser, Seller shall provide to Purchaser:
<PAGE> 7
- 7 -
(a) all plans and specifications, construction and mechanical
drawings relating to the Property and its systems, including but not
limited to electrical, lighting, steam sprinkler, air, security, and
telephone/intercom;
(b) copies of the last two years of utility bills relating to
the Property (Seller shall cooperate fully with Purchaser in
researching and analyzing these costs.); and
(c) copies of all maintenance schedules, diagrams and all
other documentation related to the Property.
12. Purchaser's Work. On or before February 15, 1998, Seller shall, at
Purchaser's request, with Seller's in-house maintenance staff or subcontractor
as designated by Purchaser, complete the improvements listed in Exhibit F under
the supervision of Ed Scott or any other supervisor designated by Purchaser:
The cost of the foregoing improvements shall be added to the Purchase
Price, after agreed to in writing by Seller and Purchaser. Upon written
agreement as to the cost of such improvements, Purchaser shall make additional
deposits with the broker, Cincinnati Commercial Real Estate, Inc. to be applied
as the earnest money is applied under Section 2 of the Agreement.
13. Indemnification. Seller shall indemnify and hold Purchaser harmless
from any and all loss, cost, damage or expense (including but not limited to
attorney's fees and all inspections and remediation costs) relating in any
mariner to the environmental condition of the Property.
14. Notices: Any notices or demands to be given by one party to the
other as required by this Agreement or otherwise shall be personally delivered,
delivered by the deposit thereof in the U. S. Postal Service, postage prepaid,
registered, or certified, return receipt requested, or by overnight courier
service to the individual at the address listed below and to any other person or
persons at said address as Purchaser or Seller may designate, unless, the other
party shall have been notified promptly of a change of address in writing and
said notice of change of address shall have actually been received by said party
prior to the time of mailing of any other notice. Any such notice shall be
deemed to have been delivered and given upon personal delivery or delivery by
overnight courier service, or forty-eight (48) hours after the postmark of any
notice sent by mail. Notices shall be sent as follows:
Seller: Mr. John Court or
Mr. John Littlehale
Multi-Color Corporation
205 West Fourth Street, Suite 1140
Cincinnati, OH 45202
Phone: (513) 381-1480 (x107 Littlehale)
Fax: (513) 381-2813
<PAGE> 8
- 8 -
Copy to: Kenneth P. Kreider, Esq.
Keating Muething & Klekamp
1800 Provident Tower
One East Fourth Street
Cincinnati, OH 45202
Phone: (513) 579-6400
Fax: (513) 579-6457
Purchaser: Mr. James L. Deckebach
Wine Racks Unlimited
2121 Ross Avenue
Cincinnati, OH 45212
PERSONAL AND CONFIDENTIAL
Phone: (513) 351-3366
Fax: (513) 731-8998
Copy to: Monica Donath Kohnen, Esq.
1900 Fifth Third Center
511 Walnut Street
Cincinnati, OH 45202
Phone: (513) 629-2827
Fax: (513) 651-3836
15. Titles: All titles, captions, and headings contained in this
agreement are for convenience only and shall not be deemed a part of this
Agreement.
16. Entire Agreement: This Agreement expresses the entire
understanding and agreement between the parties hereto pertaining to the subject
matter hereof and supersedes all prior agreements (except those contemplated
hereunder or executed contemporaneously herewith), and all understandings,
negotiations, or discussions of the parties, whether oral or written, and there
are no warranties, representations, or agreements between the parties in
connection with the subject matter hereof except those expressly set forth
herein.
17. Miscellaneous Provisions:
(a) No waiver by any party of any breach hereunder shall be
deemed a waiver of any other or subsequent breach.
(b) This Agreement shall not be altered, amended, changed,
waived, terminated, or modified in any respect or particular unless the
same shall be in writing and signed by or on behalf of the party to be
charged therewith.
(c) This Agreement shall be binding on, and inure to the
benefit of; the parties hereto and their respective successors and
assigns.
<PAGE> 9
- 9 -
(d) Except as specifically provided to the contrary, each and
every agreement, obligation, warranty, representation, and covenant of
Seller and Purchaser contained herein shall survive the passage of
title hereunder for a period of one (1) year other than those
agreements, obligations, warranties, representations and covenants of
Seller regarding the environmental condition of the Premises, which
shall survive without limitation.
18. Assignment of Agreement: This Agreement shall be binding on the
respective successors, and to the extent assignable, on the assigns or nominees
of the parties hereto, but the parties' obligations, including the original
parties to this Agreement, shall continue hereunder.
19. Further Cooperation: For a period of one (1) year, other than the
environmental condition of the Premises, Seller and Purchaser agree that at any
time, or from time to time, on or before and after the closing, they will, on
request of the other, execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order
fully to effectuate the purposes of this Agreement.
20. Indemnification: Each party shall protect, indemnify, and hold
harmless the other party and its successors and assigns from and against any and
all liabilities, obligations, losses, damages, costs, or expenses, including but
not limited to attorneys' fees and court costs resulting from or arising out of
any failure or breach of that party's warranties representations, or other
obligations as set forth in this Agreement. This obligation of Seller shall
survive for one year after the passage of title hereunder and not be deemed to
have merged into the deed, other than those agreements, obligations, warranties,
representations and covenants of Seller, regarding the environmental condition
of the Premises, which shall survive without limitation.
21. Counterparts: This Agreement may be executed in any number of
counterparts with the same effect as if all parties hereto had signed the
document. All counterparts shall be construed together and constitute one
agreement.
22. Time is of the Essence: Time is of the essence of this Agreement.
23. Brokers. Seller hereby agrees to pay Cincinnati Commercial Real
Estate, Inc. any and all commissions due as a result of this Agreement and shall
save and hold Purchaser harmless from any and all broker's fees relating to this
Agreement.
24. Resolutions. Seller agrees to provide Purchaser with evidence of
its authority to complete this transaction, including but not limited to
corporate resolutions, as reasonably requested by Purchaser, at least five days
prior to closing.
<PAGE> 10
- 10 -
IN WITNESS WHEREOF, the parties have set their hands by their duly
authorized representatives as of the date first above written.
Signed, Sealed and Delivered SELLER:
in the Presence of: MULTI COLOR CORPORATION
/s/ GILLIAN LITTLEHALE By: /s/ JOHN D. LITTLEHALE
- ------------------------------- -----------------------------
Title:
- ------------------------------- --------------------------
<PAGE> 11
- 11 -
PURCHASER:
/s/ MONICA DONATH KOHNEN
- ------------------------------ By: /s/ JAMES L. DECKEBACH
----------------------------
James L. Deckebach
- ------------------------------ dba Wine Racks Unlimited
<PAGE> 12
EXHIBIT B
ITEMS INCLUDED IN SALE
----------------------
Air compressors
Telephone/intercom system
Three fork lift trucks, to be determined by Seller
Pipe cutter, pipe threader and existing stock of fittings and pipe on the
Property on the date of this offer.
Factory trash compactor located at the dock.
Built-in floor bailer in Building #11
Cranes in buildings on the date of this offer, as agreed
Shelving in Building #19
Speciality tools for built-in equipment, as agreed
One of the two Cyclone dust collectors with supply blowers sufficient to
activate it, as agreed
Existing fire control systems and fire extinguishers in the building on the date
of this offer, excluding press CO(2) Systems and certain fire extinguishers as
agreed
General Maintenance supplies including electrical conduit and supplies, as
agreed
Break Room furniture and equipment (owned by Seller)
All electrical transformers which are part of the electrical system, as agreed,
excluding the transformers in building 3 (offset/letterset area)
<PAGE> 13
EXHIBIT C
LEASE AGREEMENT
---------------
This Lease Agreement, made and entered into this ____ day of
______________, 19___, by and between James L. Deckebach dba Wine Racks
Unlimited, hereinafter called "Lessor", and Multi-Color Corporation, a
_________________ corporation, hereinafter called "Lessee".
It is hereby mutually agreed as follows:
1. Demise. Term and Basic Rent. The Lessor, in consideration of the
agreements and covenants hereinafter set forth, does hereby grant, demise and
lease unto the said Lessee, its successors and assigns, space in the following
described buildings (#_____________) containing approximately _________________
square feet, commonly known as 4575 Eastern Avenue, Cincinnati, Ohio,
hereinafter called the "Leased Premises."
TO HAVE AND TO HOLD the same unto the Lessee, its successors and
assigns, for a term of___ years commencing with the day of _______________, 19__
and ending _____________, 19__, unless sooner terminated as hereinafter
provided.
2. Basic Rent. Lessee shall pay to Lessor at Lessor's principal place
of business or such other place as Lessor shall in writing direct as basic rent
for the Leased Premises the sum of ________________________________ Dollars
($_____________) annually, payable in advance on the first day of each month in
equal monthly installments of ______________________ Dollars ($_____________).
This amount is based on rent equal to $2.00 per square feet per annum.
3. Utilities. Lessor agrees to pay for gas, steam heat, electric, water
rents and sewer services not used in Lessee's processing. Lessee agrees to pay
or cause to be paid all charges for gas, electricity, steam and air used in
processing and for telephone or other communication services used, rendered or
supplied in connection with the Leased Premises and all water rents and sewer
services or charges which are levied upon or charged against the Leased Premises
during the term of this Lease which are attributable to Lessee's processing.
Such charges shall be mutually determined and agreed to by Lessor and Lessee as
soon as possible after invoices from the applicable utility companies have been
received.
4. Maintenance and Repair. Lessee agrees to accept the Leased Premises
"as is" in its condition. Lessor shall be responsible for all interior and
exterior maintenance and repairs of and to the Leased Premises with exception of
improvements made by Lessee. At the expiration or any prior termination of this
Lease, Lessee shall surrender the Leased Premises to Lessor in as good a
condition as they now exist or as improved by Lessee, ordinary wear and tear and
reasonable use excepted.
5. Taxes and Assessments. The Lessee shall pay to the public officers
charged with the collection thereof; as additional rent, all real estate taxes,
assessments, and other governmental
<PAGE> 14
charges, general or specific, of any kind or nature whatsoever ("Tax") which
apply to Lessee's personal property. Lessor shall pay all Tax relating to the
real estate.
6. Insurance. Lessee, at Lessee's sole cost and expense, but for the
mutual benefit of the Lessor and Lessee, shall maintain general public liability
insurance against claims for injury, wrongful death, or property damage
occurring upon, in or about the Leased Premises with coverage in the amount of
$1,000,000.00. Lessee shall also be solely responsible for all tenant
improvements and contents in the Leased Premises and for insuring same and will
present evidence of same to Lessor upon request.
7. Alterations and Improvements. Lessee may not make any alterations or
improvements on the Leased Premises without first obtaining the prior written
consent of Lessor.
8. Destruction of the Premises. In the event of a partial or total
destruction of the Leased Premises, such as to render them unsuitable for the
business of the Lessee, then, at Lessor's option and in its sole discretion,
this Lease shall cease and come to an end, and Lessee shall be liable for the
rent only up to the time of such election to terminate this Lease. Lessor shall
elect within thirty (30) days after such destruction whether or not it will
terminate this Lease or allow the Lease to remain in full force and effect. In
any event, Lessee shall not be liable for rent of any period during which the
Leased Premises are unsuitable for the conduct of Lessee's business because of
such partial or total destruction.
9. Effect of Condemnation. If the whole or any part of the Leased
Premises shall be condemned or taken by the City of Cincinnati, or by any other
county, federal, state or other authority for any purpose during the term of
this Lease, Lessor shall have the right either to cancel the Lease and declare
the same null and void, or to continue the Lease under the terms and provisions
herein provided, except that the rent shall be reduced in proportion to the
amount of the Leased Premises taken for such public purposes. All damages
awarded for such taking shall belong to and be the property of Lessor.
10. Assignment and Subletting. Lessee may not assign or sublet the
Leased Premises or any portion thereof; without the prior written consent of
Lessor.
11. Indemnity of Lessor. Lessee agrees that it will indemnify and save
harmless Lessor from all fines, suits, proceedings, claims, demands and actions
of any kind or nature, of anyone whomsoever, arising or growing out of or
otherwise connected with the Lessee's occupation of the Leased Premises, and of
the entrances thereto, or exits therefrom, or by reason of any breach,
violation, or nonperformance of any covenant or condition hereof on the part of
the Lessee or any of its agents or employees, sublessees, or assignees except,
however, where such is due to the negligence of Lessor, its agents or employees.
12. Government Regulations. Lessee shall at its expense comply with all
valid laws, ordinances, rules and regulations of all government authorities
pertaining to use and occupancy of the Leased Premises, including compliance
with all local, state and federal environmental laws and regulations. Lessee
covenants and agrees that during the term of this Lease, neither Lessee nor any
of Lessee's agents, employees, contractors, invitees, assignees, or sublessees
shall cause or permit
<PAGE> 15
any hazardous waste or hazardous substance (as defined under any federal or
state law) or any oil, petroleum or fractions or distillates thereof; to be
brought upon, kept, or used in, on, or about the Leased Premises, or transported
to or from the Leased Premises without the prior written consent of Lessor, at
Lessor's sole discretion.
13. Remedies of Lessor in Event of Default by Lessee. In the event
Lessee shall default in the payment of any monthly rental herein provided for,
or if Lessee shall default in performance of any of the covenants, promises or
agreements herein set forth and contained for Lessee to keep and perform, or if
Lessee shall abandon or vacate the Leased Premises during the term or any
renewal hereof; or if Lessee is adjudicated a bankrupt, or if a permanent
receiver is appointed for its property, including Lessee's interest in the
Leased Premises, or if; whether voluntarily or involuntarily, Lessee takes
advantage of any debtor relief proceeding under any present or future law
whereby the rent, or any part thereof; is or is proposed to be reduced or
payment thereof deferred, or if Lessee makes an assignment for the benefit of
creditors, and such rental is not paid or the other enumerated conditions
corrected within ten (10) days after receipt by Lessee from Lessor of a written
notice to do so, or if the Leased Premises or Lessee's effects or interest
therein should be levied upon or attached under process against Lessee, and is
not satisfied or dissolved within thirty (30) days after written notice from
Lessor to Lessee to obtain satisfaction or dissolution thereof; then, and in any
of said events (said events being hereinafter referred to as events of default),
Lessee shall be deemed to have breached this Lease Agreement and Lessor shall
have the right at its option either to:
(a) Enter upon and take possession of the Leased Premises as
Lessee's agent without terminating this Lease, and to rerent the Leased
Premises at the best price obtainable by reasonable effort, without
advertisement, and by private negotiations, and for any term Lessor
deems proper. Lessee shall thereupon become and thereafter be liable
and indebted to Lessor for, and upon demand then or from time to time
thereafter made, shall promptly pay to Lessor the difference between
the amount of the rent herein specified and the amount of rent which
shall be collected and received from the Leased Premises for each month
during the residue of the term herein remaining after the default of
Lessee; or
(b) Forthwith cancel and terminate this Lease by notice in
writing to Lessee, and if such notice shall be given, all rights of
Lessee to use and occupy the Leased Premises shall terminate as of the
date set forth in such notice, and Lessee will at once surrender
possession of the Leased Premises to Lessor and remove all of its
effects therefrom, and Lessor may forthwith re-enter the Leased
Premises and repossess itself thereof. No termination of this Lease
prior to the normal expiration thereof shall affect Lessor's right to
collect rent for the period prior to termination thereof.
(c) Lessee shall pay upon demand, a sum equal to the entire
rent due for the remaining term of this Lease
The rights provided for herein are cumulative and not restrictive of
any other and further rights provided by law; and no delay or failure of Lessor
to exercise any right herein or by law provided, or to insist upon strict
compliance by Lessee with the terms and provisions hereof; shall constitute a
waiver of Lessor's rights thereafter to exercise and avail itself of said right
or thereafter
<PAGE> 16
to demand strict compliance by Lessee with the terms and provisions thereof.
14. Surrender of Possession and Holding Over. Lessee shall surrender
possession of the Leased Premises to Lessor at the expiration or any prior
termination of the original term of this Lease. Failure by Lessee so to
surrender the Leased Premises and any holding over by Lessee shall not operate,
except by express mutual written agreement between the parties hereto, to extend
or renew this Lease, and in the absence of such agreement, all other terms of
this Lease shall remain in full force and effect and shall apply as a month to
month tenancy, and either party may thereafter terminate such occupancy at the
end of any calendar month by first giving to the other party at least thirty
(30) days notice in writing of the intention to do so.
15. Quiet Enjoyment. Lessor covenants that Lessee, on paying the rental
herein provided, and on keeping, observing and performing all other terms,
covenants and agreements herein contained on the part of the Lessee to be kept,
observed and performed, shall during the term hereof; peaceably and quietly
have, hold and enjoy the Leased Premised by the full term of this Lease.
IN WITNESS WHEREOF, Lessor and Lessee have hereunto set their hands
this _____ day of ______________, 19__.
Signed and Acknowledged
in the Presence of:
LESSEE
MULTI-COLOR CORPORATION
(1)__________________________ By:____________________________
Printed Name:__________________________
Name:________________________ Title:_________________________
(2)__________________________
Printed
Name:________________________
<PAGE> 17
EXHIBIT D
PRE-CLOSING LEASE
-----------------
This Lease Agreement, made and entered into this ____ day of
__________, 19__, by and between Multi-Color Corporation, a corporation,
hereinafter called "Lessor" and James L. Deckebach dba Wine Racks Unlimited,
hereinafter called "Lessee".
It is hereby mutually agreed as follows:
1. Demise, Term and Basic Rent. The Lessor, in consideration of the
agreements and covenants hereinafter set forth, does hereby grant, demise and
lease unto the said Lessee, its successors and assigns, space in the following
described buildings (#10A, 10B, 11, 12, 13, 16, 17, 18, 19 and 21 and 8,000
square feet of office space on third floor as specified by Lessee) containing
approximately 96,000 square feet, commonly known as 4575 Eastern Avenue,
Cincinnati, Ohio, hereinafter called the "Leased Premises."
TO HAVE AND TO HOLD the same unto the Lessee, its successors and
assigns, for a term commencing with the first day of March, 1998 and ending on
the earlier of (i) the date of closing on the sale of 4575 Eastern Avenue,
Cincinnati, Ohio by Lessor to Lessee or (ii) the date the environmental
remediation is completed pursuant to Section 9 of the Agreement between Lessor
and Lessee dated _________________, 1997.
2. Basic Rent. Lessee shall pay to Lessor at Lessor's principal place
of business or such other place as Lessor shall in writing direct as basic rent
for the Leased Premises the sum of Ninety Six Thousand Dollars ($96,000.00)
annually, payable in advance on the first day of each month in equal monthly
installments of Eight Thousand Dollars ($8,000.00). This amount is based on rent
equal to $1.00 per square foot per annum.
3. Utilities. Lessor agrees to pay for gas, steam heat, electric, water
rents and sewer services not used in Lessee's processing. Lessee agrees to pay
or cause to be paid all charges for gas, electricity, steam and air used in
processing and for telephone or other communication services used, rendered or
supplied in connection with the Leased Premises and all water rents and sewer
services or charges which are levied upon or charged against the Leased Premises
during the term of this Lease which are attributable to Lessee's processing.
Such charges shall be mutually determined and agreed to by Lessor and Lessee as
soon as possible after invoices from the applicable utility companies have been
received.
4. Maintenance and Repair. Lessor shall be responsible for all interior
and exterior maintenance and repairs of and to the Leased Premises with
exception of improvements made by Lessee. At the expiration or any prior
termination of this Lease, Lessee shall surrender the Leased Premises to Lessor
in as good a condition as they now exist or as improved by Lessee, ordinary wear
and tear and reasonable use excepted.
<PAGE> 18
5. Taxes and Assessments. The Lessee shall pay to the public officers
charged with the collection thereof; as additional rent, all real estate taxes,
assessments, and other governmental charges, general or specific, of any kind or
nature whatsoever ("Tax") which apply to Lessee's personal property. Lessor
shall pay all Tax relating to the real estate.
6. Insurance. Lessee, at Lessee's sole cost and expense, but for the
mutual benefit of the Lessor and Lessee, shall maintain general public liability
insurance against claims for injury, wrongful death, or property damage
occurring upon, in or about the Leased Premises with coverage in the amount of
$1,000,000,000.00. Lessee shall also be solely responsible for all tenant
improvements and contents in the Leased Premises and for insuring same and will
present evidence of same to Lessor upon request.
7. Destruction of the Premises. In the event of a partial or total
destruction of the Leased Premises, such as to render them unsuitable for the
business of the Lessee, then, at Lessee's option and in its sole discretion,
this Lease shall cease and come to an end, and Lessee shall be liable for the
rent only up to the date of destruction. In any event, Lessee shall not be
liable for rent of any period during which the Leased Premises are unsuitable
for the conduct of Lessee's business because of such partial or total
destruction.
8. Effect of Condemnation. If the whole or any part of the Leased
Premises shall be condemned or taken by the City of Cincinnati, or by any other
county, federal, state or other authority for any purpose during the term of
this Lease, Lessee shall have the right either to cancel the Lease and declare
the same null and void, or to continue the Lease under the terms and provisions
herein provided, except that the rent shall be reduced in proportion to the
amount of the Leased Premises taken for such public purposes. All damages
awarded for such taking shall belong to and be the property of Lessor.
9. Assignment and Subletting. Lessee may not assign or sublet the
Leased Premises or any portion thereof, without the prior written consent of
Lessor, which consent will not be unreasonably withheld.
10. Indemnity of Lessor. Lessee agrees that it will indemnify and save
harmless Lessor from all fines, suits, proceedings, claims, demands and actions
of any kind or nature, of anyone whomsoever, arising or growing out of or
otherwise connected with the Lessee's occupation of the Leased Premises, and of
the entrances thereto, or exits therefrom, or by reason of any breach,
violation, or nonperformance of any covenant or condition hereof on the part of
the Lessee or any of its agents or employees, sublessees, or assignees except,
however, where such is due to the negligence of Lessor, its agents or employees.
11. Government Regulations. Lessee covenants and agrees that during the
term of this Lease, neither Lessee nor any of Lessee's agents, employees,
contractors, invitees, assignees, or sublessees shall cause or permit any
hazardous waste or hazardous substance (as defined under any federal or state
law) or any oil, petroleum or fractions or distillates thereof; to be brought
upon, kept, or used in, on, or about the Leased Premises, or transported to or
from the Leased Premises without the prior written consent of Lessor, at
Lessor's sole discretion, except for such substances required for Lessee's
manufacturing processes. Notwithstanding anything to the contrary herein, Lessee
shall
<PAGE> 19
not have any liability relating to the environmental condition of the Property
not caused directly by Lessee.
12. Remedies of Lessor in Event of Default by Lessee. In the event
Lessee shall default in the payment of any monthly rental herein provided for,
or if Lessee shall default in performance of any of the covenants, promises or
agreements herein set forth and contained for Lessee to keep and perform, or if
Lessee shall abandon or vacate the Leased Premises during the term or any
renewal hereof; or if Lessee is adjudicated a bankrupt, or if a permanent
receiver is appointed for its property, including Lessee's interest in the
Leased Premises, or if; whether voluntarily or involuntarily, Lessee takes
advantage of any debtor relief proceeding under any present or future law
whereby the rent, or any part thereof; is or is proposed to be reduced or
payment thereof deferred, or if Lessee makes an assignment for the benefit of
creditors, and such rental is not paid or the other enumerated conditions
corrected within ten (10) days after receipt by Lessee from Lessor of a written
notice to do so, or if the Leased Premises or Lessee's effects or interest
therein should be levied upon or attached under process against Lessee, and is
not satisfied or dissolved within thirty (30) days after written notice from
Lessor to Lessee to obtain satisfaction or dissolution thereof; then, and in any
of said events (said events being hereinafter referred to as events of default),
Lessee shall be deemed to have breached this Lease Agreement and Lessor shall
have the right at its option either to:
(a) Enter upon and take possession of the Leased Premises as
Lessee's agent without terminating this Lease, and to rerent the Leased
Premises at the best price obtainable by reasonable effort, without
advertisement, and by private negotiations, and for any term Lessor
deems proper. Lessee shall thereupon become and thereafter be liable
and indebted to Lessor for, and upon demand then or from time to time
thereafter made, shall promptly pay to Lessor the difference between
the amount of the rent herein specified and the amount of rent which
shall be collected and received from the Leased Premises for each month
during the residue of the term herein remaining after the default of
Lessee; or
(b) Forthwith cancel and terminate this Lease by notice in
writing to Lessee, and if such notice shall be given, all rights of
Lessee to use and occupy the Leased Premises shall terminate as of the
date set forth in such notice, and Lessee will at once surrender
possession of the Leased Premises to Lessor and remove all of its
effects therefrom, and Lessor may forthwith re-enter the Leased
Premises and repossess itself thereof. No termination of this Lease
prior to the normal expiration thereof shall affect Lessor's right to
collect rent for the period prior to termination thereof.
(c) Lessee shall pay upon demand, a sum equal to the entire
rent due for the remaining term of this Lease.
The rights provided for herein are cumulative and not restrictive of
any other and further rights provided by law; and no delay or failure of Lessor
to exercise any right herein or by law provided, or to insist upon strict
compliance by Lessee with the terms and provisions hereof; shall constitute a
waiver of Lessor's rights thereafter to exercise and avail itself of said right
or thereafter to demand strict compliance by Lessee with the terms and
provisions thereof.
<PAGE> 20
13. Surrender of Possession and Holding Over. Lessee shall surrender
possession of the Leased Premises to Lessor at the expiration or any prior
termination of the original term of this Lease. Failure by Lessee so to
surrender the Leased Premises and any holding over by Lessee shall not operate,
except by express mutual written agreement between the parties hereto, to extend
or renew this Lease, and in the absence of such agreement, all other terms of
this Lease shall remain in full force and effect and shall apply as a month to
month tenancy, and either party may thereafter terminate such occupancy at the
end of any calendar month by first giving to the other party at least thirty
(30) days notice in writing of the intention to do so.
14. Quiet Enjoyment. Lessor covenants that Lessee, on paying the rental
herein provided, and on keeping, observing and performing all other terms,
covenants and agreements herein contained on the part of the Lessee to be kept,
observed and performed, shall during the term hereof; peaceably and quietly
have, hold and enjoy the Leased Premised by the full term of this Lease.
IN WITNESS WHEREOF, Lessor and Lessee have hereunto set their hands
this _____ day of ______________, 19__.
Signed and Acknowledged
in the Presence of:
LESSEE
MULTI-COLOR CORPORATION
(1)__________________________ By: /s/ JOHN D. LITTLEHALE
Printed -----------------------------
Name:________________________ Name: John D. Littlehale
---------------------------
Title: Vice President
--------------------------
(2)__________________________
Printed
Name:________________________
<PAGE> 21
EXHIBIT E
"SELLER'S WORK"
---------------
1. City Inspection Department to inspect elevators A, B, C and D as shown
on Floor Plan and Seller to put in good working order. The cost will
not exceed $20,000 total.
2. Repair exterior brick wall (approximately 4 to 5 feet) on railroad side
inside the boiler room where it is damaged.
3. Remove all underground storage tanks, and all other tanks on the
Property and all relating piping.
4. Complete Seller's planned installation of zone flow control valves and
thermostats on the steam heating system, coordinating such installation
with Purchaser in accordance with the diagram attached to the Agreement
as Exhibit G.
5. Except as provided herein in regard to the Solvent Recovery System,
Seller will remove all presses, processing machinery, all materials and
all other trade fixtures from the premises prior to closing and restore
the Property to the original condition where equipment was removed.
This includes taking all machine specific electrical lines back to the
breaker panel from which they originate and capping the holes. This
includes taking all machine specific air lines not attached to a
permanent wall or post back to ceiling height and capping the openings.
This includes taking all non-heat steam lines back to the nearest
continuously flowing supply or return line and capping. This includes
capping (weather proofing, sealing against air infiltration and
insulating to R-l 1 minimum) all roof openings by which ducts and other
mechanicals exit the building when they are removed. The removal and
restoration should be completed in a professional manner with
consideration of the structural integrity of the building and industry
accepted standards. The interior space of the buildings should be
unencumbered except where permanent partitions or posts are located up
to the mechanical feed lines on the ceiling.
6. Sprinklers are to be functional throughout the building on all floors.
7. Building #19 is to be reconnected to the steam heating system and the
gas space heater is to be removed. Steam heating is to be sufficient to
keep building #19 at 65 degrees.
8. Repair upper floor areas that are blocked with caution tape.
9. Repair and/or replace all broken glass.
10. Repair steam heater in office area.
Items 7-10 are budgeted at $14,000 and Seller will not be obliged to pay more
than the budgeted amount or the amount necessary to complete the improvements.
The work on these items will be coordinated between Seller and Purchaser.
<PAGE> 22
EXHIBIT F
"PURCHASER'S WORK"
------------------
1. Install a rolling dock door in the middle of the side of Building #19
facing the parking lot between two posts above the concrete knee wall.
This work will be performed by the subcontractor specified by the
Purchaser.
2. Install an opening between 13' and 14' wide by 12' high in the center
of the wall dividing the two portions of Building #19 across from the
rolling dock door being installed in the exterior side of Building #19.
This work will be performed by the subcontractor specified by the
Purchaser.
3. Install electrical sub-panels and specific electrical receptacles and
drop receptacles as specified by Purchaser. This work shall be
completed by the Seller's in-house maintenance men in coordination with
the Purchaser's construction manager, Ed Scott.
4. Install air line as specified by Purchaser. This work shall be
completed by the Seller's in-house maintenance men in coordination with
the Purchaser's construction manager, Ed Scott.
Seller will be reimbursed directly in cash at closing or upon
Pre-Closing Lease commencement for these costs plus a 10%
administrative fee.
<PAGE> 23
FIRST AMENDMENT TO AGREEMENT
This First Amendment to Agreement ("First Amendment") made by and
between Multi-Color Corporation, a ______________ (sometimes called "Seller")
and James L. Deckebach dba Wine Racks Unlimited (hereinafter sometimes called
"Purchaser".
WHEREAS, Seller and Purchaser entered into an Agreement dated December
5, 1997 ("Agreement") for Seller's real estate known as 4575 Eastern Avenue,
Cincinnati, Ohio ("Real Property") together with some personal property. The
Real Property ad the personal property shall be collectively referred to as the
"Property").
WHEREAS, Seller and Purchaser have completed some of the due diligence
affecting the Property and desire to amend certain terms of the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is acknowledged by the parties hereto and in consideration of
the premises, conditions and covenants herein contained, Seller and Purchaser do
hereby mutually agree as follows:
1. Gas Station Parcel. That part of the Real Property commonly known as
the "Gas Station Parcel", which is more particularly described on Exhibit A
attached hereto, will not be conveyed by Seller to Purchaser under the
Agreement. At closing Seller shall grant Purchaser a perpetual exclusive
easement for pedestrian and vehicular access and parking and all other lawful
uses. The terms of this easement shall also contain a provision that Purchaser
shall have the option to purchase the Gas Station Parcel for $1.00 at any time
and that Purchaser may improve or construct alterations on the Gas Station
Parcel without the consent of Seller. Such easement shall be drafted by
Purchaser's counsel and be reasonably acceptable to Seller's counsel. Such
drafting and review shall be completed on or before January 15, 1998.
Notwithstanding anything in this section to the contrary, Seller shall
have all of the same obligations to convey good title to this easement over the
Gas Station Parcel as set forth in the Agreement for the Real Property.
2. Closing Date. The closing date under the Agreement shall be March 1,
1998. In the event that the closing does not occur on or before March 1, 1998
due to no fault of Purchaser, Seller and Purchaser shall enter the "Pre-Closing
Lease" as defined in the Agreement except that the rent shall be one cent per
square foot per annum. Purchaser shall pay a pro rata share of utilities based
on the square footage occupied by Purchaser of the entire Real Property.
If, by February 1, 1998, Seller cannot assure Purchaser that Seller's
presses in Building No. 17 and No. 19 will be out of Purchaser's operational
space as defined in the Agreement by March 1, 1998, then Seller will pay
Purchaser $25,000.00 on February 1, 1998, which is the cost to run electrical
wiring and air lines to alternate and temporary locations. In addition, Seller
will pay Purchaser $15,000.00 per month for each month from and including March
1997 that Seller's presses are within Purchaser's operational area. This is the
cost of lost operational efficiency that Purchaser will suffer due to the
alternative layout. It is imperative that all other equipment and supplies owned
by Seller be removed from Purchaser's operations space by March 1, 1998.
Anything left in
<PAGE> 24
Purchasers' operational area other than Seller's presses will be removed to the
parking lot and the cost to do so will be paid by Seller upon receipt of invoice
from Purchaser. Seller will not be responsible for damage in moving these items.
If Seller certifies on February 1, 1998 that Seller will have the presses out of
Purchaser's operational space by March 1, 1998 and Seller does not succeed in
removing them by March 1, 1998, Seller will pay Purchaser $75,000.00, which
represents the cost to rewire the building plus extreme business interruption,
in addition to the $15,000 per month described above.
3. Solvent Recovery System. Seller shall pay Purchaser $1.00 per year
as rent to allow Seller to leave the Solvent Recovery System in the parking lot
of the Real Estate for a period of one year from the date of closing. All other
terms of the Agreement regarding the Solvent Recovery System shall remain in
full force and effect, except that the license shall be a lease, the terms and
conditions of which will be agreed upon by Seller and Purchaser on or before
January 15, 1998. Seller shall disconnect Solvent Recovery System from Building
before February 23, 1998.
4. Purchaser's Work. With respect to Purchaser's Work, Seller and James
L. Deckebach dba Deckebach Construction Co. ("Construction Co.") shall enter a
contract for the completion of Purchaser's Work on or before February 23, 1998.
The purchase price at closing shall be increased to $1,000,000.00 to reflect the
cost of the contract with Construction Co. for Purchaser's Work of $50,000.00.
The requirement that Purchaser make additional deposits with the broker,
Cincinnati Commercial Real Estate, Inc. to be applied as the earnest money is
applied under Section 2 of the Agreement is hereby deleted.
5. Environmental. Seller will provide to Purchaser the written Phase II
report and remediation plan on or before December 31, 1997. Seller shall
complete all remediation on or before February 15, 1998.
6. Contingencies. Purchaser shall complete its building inspections by
January 5, 1998. Purchaser will accelerate its contingency date response for
contingencies under sections 5(a)(i)(ii)(iii)(iv) and (vii) of the Agreement to
a date on or before January 5, 1998. The condition under 5(a)(vi) of the
Agreement regarding Exhibit C, Lease Agreement shall be satisfied on or before
January 5, 1998. Seller is to inform Purchaser of space required and length of
time requested by December 31, 1997. Seller shall provide copies of all
pertinent legal documentation regarding the Property to Purchaser immediately,
including but not limited to research on all building systems, telephone,
intercom systems and fork lift.
7. Seller's Work. Seller shall begin Seller's Work during the week of
December 22, 1997, obtain 85% completion of Seller's Work by February 1, 1998
and complete Seller's Work by February 15, 1998. Two sections of Seller's Work
were capped on costs. Those areas are to be researched by January 15, 1998. If
the Seller determines that this work cannot be completed within the agreed upon
budget, then Seller is to consult with Purchaser on or before January 8, 1998 to
determine Purchaser's preference as to what should be fixed within the budget.
8. Authority. Seller agrees to provide Purchaser with evidence of its
authority to complete this transaction, including but not limited to corporate
resolutions, as reasonably requested by Purchaser, on or before January 15,
1998.
<PAGE> 25
9. Dust Collectors. The Cyclone Dust Collectors shall be removed form
the roof and placed in the parking lot simultaneously. The cost shall be shared
equally by Seller and Purchaser and paid promptly upon invoice and such work
shall be completed on or before February 23, 1998.
10. Seller's Possession. Seller shall be entitled to remain on the Real
Property, at no cost to Seller, until April 1, 1998 in order to complete the
move of Seller's property to its designated space under Exhibit C to the
Agreement, as long as such property is moved from Purchaser's operational space
on or before March 1, 1998.
11. Purchaser's Possession. Purchaser shall have the right to move some
non-operational property to the Property beginning February 1, 1998 without
interfering with Seller's operation, at no cost to Purchaser.
12. Encroachments. Seller shall obtain from the City of Cincinnati on
or before January 31, 1998, a quit claim deed (acceptable to Purchaser) of
property on Eastern Avenue on which Seller's improvements are located, as
identified in the survey by Brausch & Associates, Inc. dated July 13, 1994.
13. Defined Terms. All defined terms set forth in the Agreement shall
have the same meaning in this First Amendment.
14. Conflicts. In the event of a conflict between the terms of this
Agreement and the terms of the Agreement, the terms and condition of this First
Amendment shall control.
IN WITNESS WHEREOF, Seller and Purchaser have executed this First
Amendment on the dates set forth below.
SELLER:
MULTI-COLOR CORPORATION
/s/ JOHN D. LITTLEHALE
----------------------------
Date: December 29, 1997
-----------------------
<PAGE> 26
PURCHASER:
/s/ JAMES L. DECKEBACH
-------------------------------------------
James L. Deckebach dba Wine Racks Unlimited
Date: 12/29/97
--------------------------------------
<PAGE> 27
EXHIBIT A
---------
GAS STATION PARCEL DESCRIPTION
------------------------------
See Attached
<PAGE> 28
SECOND AMENDMENT TO AGREEMENT
THE AGREEMENT TO PURCHASE 4575 EASTERN AVENUE BETWEEN MULTI-COLOR CORPORATION
AND WINE RACKS UNLIMITED WILL BE AMENDED AS FOLLOWS: MULTI-COLOR CORPORATION
WILL NO LONGER BE RESPONSIBLE TO REMOVE THE DUCT WORK BETWEEN THE SOLVENT
RECOVER SYSTEM AND THEIR EQUIPMENT. THIS IS STARTING WITH THE MAIN TRUNK LINE AT
THE SOLVENT RECOVER SYSTEM. IN RETURN, ALL THE DUCT WORK AND ACTIVATING SYSTEM
BETWEEN MULTI-COLORS PRESSES AND MACHINE AND THE SOLVENT RECOVER SYSTEM IS TO
BECOME THE PROPERTY OF WINE RACKS UNLIMITED.
/s/ JOHN LITTLEHALE DATE 1/28/98
- ------------------------------------------------ ----------------------------
JOHN LITTLEHALE, MULTI-COLOR CORPORATION
/s/ JAMES DECKEBACH DATE 1/28/98
- ------------------------------------------------ ----------------------------
JAMES L. DECKEBACH, WINE RACKS UNLIMITED
<PAGE> 29
THIRD AMENDMENT TO AGREEMENT
This Third Amendment to Agreement ("Third Amendment") made and entered
into this 16 day of February , 1998 by and between James L. Deckebach dba Wine
Racks Unlimited (hereinafter called "Purchaser") and Multi-Color Corporation, a
_______________ corporation, (hereinafter called "Seller").
WHEREAS, Purchaser and Seller entered into an Agreement dated December
5, 1997 ("Agreement") for Seller's real estate known as 4575 Eastern Avenue,
Cincinnati, Ohio (hereinafter called the "Real Property") together with some
personal property. The Real Property and the personal property shall be
collectively referred to as the "Property";
WHEREAS, Purchaser and Seller amended the Agreement by First Amendment
to Agreement dated December 29, 1997 and by Second Amendment to Agreement dated
January 28, 1998;
WHEREAS, the Agreement, First Amendment to Agreement and Second
Amendment to Agreement shall hereafter referred to as the "Agreement"; and
WHEREAS, Seller and Purchaser desire to amend certain terms and
conditions of the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is acknowledged by the parties hereto and in consideration of
the premises, conditions and covenants herein contained, Seller and Purchaser do
mutually agree as follows:
1. All of the explosion proof light fixtures in the factory as of
February 4, 1998 shall be included as part of the Property being sold to
Purchaser.
2. Seller shall remove all of its machinery and fixtures from Building
No. 18 on or before February 13, 198 and shall have the floor to Building No. 18
cleaned on or before February 13, 1998.
3. Seller shall remove all of its personal property, products, fixtures
and machinery (with the exception of the letter press) from Building Nos. 11, 12
and 13 on or before February 23, 1998.
4. Seller has not completed all of its work as required under Section
10 of the Agreement. Purchaser has agreed to proceed with closing and receive
payment for such work in the amount of $40,530 (which is an amount equal to
$40,78, the cost of Seller's work to be performed by Purchaser, less shelving in
the central supply room at a cost of $250).
5. The sum of $40,530 shall be paid by Seller to Purchaser prior to the
closing on March 2, 1988. This payment shall be made in cash or certified check
payable to Purchaser and shall be paid even if the transaction does not close
due to no fault of Purchaser.
<PAGE> 30
February 2, 1998
Mr. John Curt or
Mr. John Littlehale
Multi-Color Corporation
205 W. Fourth Street, Suite 1140
Cincinnati, OH 45202
RE: JAMES L. DECKEBACH, DBA DECKEBACH CONSTRUCTION CO.
Gentlemen:
James L. Deckebach, dba Deckebach Construction Co. ("Construction Co.")
hereby offers to complete that work ("Work") listed on Exhibit F attached hereto
for a cost of $50,000.00.
Construction Co. will complete such Work on or before February 23,
1998.
Seller shall pay Construction Co. for such Work by certified or
cashier's check on the earlier of (i) the date of Seller's closing with Jim
Deckebach, dba Wine Racks Unlimited for property at 4575 Eastern Avenue,
Cincinnati, Ohio; or (ii) February 27, 1998.
If you are in agreement with the terms of this letter, please sign
below.
MULTI-COLOR CORPORATION
/s/ JAMES L. DECKEBACH By: /s/ JOHN D. LITTLEHALE
- --------------------------- ---------------------------
James L. Deckebach, dba Name: John D. Littlehale
-------------------------
Deckebach Construction Co. Title: Vice President
------------------------
Date: 3/2/98 Date: 3/2/98
---------------------- -------------------------
<PAGE> 31
February 6, 1998
Mr. John Court or
Mr. John Littlehale
Multi-Color Corporation
205 West Fourth Street, Suite 1140
Cincinnati, OH 45202
RE: JAMES L. DECKEBACH, DBA DECKEBACH CONSTRUCTION CO.
("CONSTRUCTION CO.") SUPPLEMENT TO LETTER AGREEMENT
Gentlemen:
Please be advised that this letter modifies my letter to you of
February 2, 1998 in which you agreed to pay Construction Co. on or before
February 27, 1998 the sum of $50,000. This letter hereby amends the payment date
until March 2, 1998. In the event this payment is not made prior to the closing
of Seller with Jim Deckebach, dba Wine Racks Unlimited, there will be no closing
between Seller and Jim Deckebach, dba Wine Racks Unlimited, due to no fault of
Jim Deckebach, dba Wine Racks Unlimited.
If you are in agreement with the terms of this letter, please sign
below.
MULTI-COLOR CORPORATION
By: /s/ JOHN D. LITTLEHALE
-----------------------------------------
Name: John D. Littlehale
---------------------------------------
Title: Vice President
--------------------------------------
/s/ JAMES L. DECKEBACH
- --------------------------------------------
James L. Deckebach, dba Wine Racks Unlimited
<PAGE> 1
EXHIBIT 10.17
ESCROW AGREEMENT
(GENERAL)
THIS ESCROW AGREEMENT is made effective as of March 31, 1998, by and
among Longworth Title Agency, Inc., an Ohio corporation ("Escrow Agent"), James
L. Deckebach d/b/a Wine Racks Unlimited ("Buyer"), and Multi-Color Corporation,
an Ohio corporation ("Seller").
WITNESSETH:
WHEREAS, Buyer and Seller have entered into an Agreement as amended
("Agreement") for the purchase and sale of certain property commonly known as
4575 Eastern Avenue, Cincinnati, Hamilton County, Ohio ("Property").
WHEREAS, pursuant to the terms of the Agreement Seller is obligated to
complete the items set forth on the attached Exhibit A prior to Closing
("Obligations"); and
WHEREAS, Seller has not yet completed its Obligations under the
Agreement but Buyer and Seller have agreed to close on the Property with the
execution of this Escrow Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants set forth herein:
1. Deposit of Funds. Buyer shall deposit with Escrow Agent the sum of
$89,949.00 (collectively the "Funds") and Escrow Agent agrees to receive and
hold the Funds and to deal with the Funds as hereinafter set forth). Such Funds
shall be held by Escrow Agent without any interest being earned by either Buyer
or Seller.
2. Completion of Obligations. Except as otherwise noted on Exhibit A
where Buyer has agreed to undertake the Obligations, Seller shall complete the
Obligations set forth in Exhibit A within the time periods set forth in Exhibit
A and to the reasonable satisfaction of Buyer. In the event Seller has not
completed the Obligations set forth in Exhibit A within the time periods set
forth in Exhibit A, the Funds allocated to the particular Obligations as set
forth in Exhibit A shall be delivered to Buyer. In the event that an Obligation
is completed to the reasonable satisfaction of Buyer for less than the amount
set forth on Exhibit A, Escrow Agent is directed to send the excess amounts to
PNC Bank, National Association for the account of Seller.
3. Time Limit. In the event that the Escrow Agent has not been given
written instructions signed by Buyer and Seller to disburse the Funds on or
before 3:00 p.m., May 1, 1998, then on May 2, 1998, the Escrow Agent shall
disburse the Funds to Buyer.
4. Methods of Funds Transfer. Escrow Agent may transfer the Funds by
corporate check, by wire transfer, by certified check, or by such other means as
may be agreed upon in writing.
5. Release. The parties agree that Escrow Agent shall have no liability
under this Agreement except to account for the Funds as specified herein. Upon
delivery by Escrow Agent of
<PAGE> 2
-2-
the Funds as provided herein, the endorsement, acceptance, or negotiation of
such funds shall constitute a full and complete release by such party of the
Escrow Agent from any and all liability of any kind or nature whatsoever in
connection with this Agreement or the escrow.
6. Indemnity. Buyer and Seller ("Indemnitors") jointly and severally
hereby agree to release, hold harmless and indemnify the Escrow Agent from and
against any liability, cost or expense, including attorney fees and court costs,
incurred by it in connection with any arbitration or court action, or any act
taken within the scope of this Agreement or any failure to act, unless due to
the negligence or misconduct of the Escrow Agent, or its failure to comply with
the terms of this Agreement.
In furtherance, and not in limitation of the foregoing, Indemnitors
agree as follows, which agreement shall survive the disbursement of all Funds in
the escrow account: (i) Indemnitors shall not hold Escrow Agent responsible in
any manner for, and Indemnitors shall reimburse and indemnify the Escrow Agent
for and hold Escrow Agent harmless against, any loss, liability or expense
arising out of, or in connection with Escrow Agent's acceptance of or Escrow
Agent's performance of its duties hereunder as well as the reasonable costs and
expenses of defending against any claim or liability arising out of, or relating
to, this Agreement; and (ii) Indemnitors shall not hold Escrow Agent liable for
any error in judgment or for any act done or omitted by Escrow Agent in good
faith or for any mistake in fact or law or for anything which Escrow Agent does
or refrains from doing in connection with this Escrow Agreement.
7. Termination of Liability. Upon disbursement of all Funds Escrow
Agent shall be relieved of all further liability and responsibility in
connection with the Escrow Agreement or this escrow.
8. Interpleader. In the event any demand is made upon Escrow Agent
concerning this Agreement or this Escrow, or at any time for any cause or for no
cause, Escrow Agent, at its election and in its sole discretion, may cause the
Funds to be delivered to a court of competent jurisdiction to determine the
rights of Seller and Buyer or to interplead Seller and Buyer by an action
brought in any such court. Deposit by Escrow Agent into such court of the Funds
shall relieve Escrow Agent of all further liability and responsibility in
connection with this Agreement and the escrow.
9. Counterparts and Faxes. This Agreement may be executed in
counterparts and shall be binding on the parties notwithstanding that all
parties have not signed the same counterpart. Also, a faxed copy of an executed
counterpart (with originals to be sent to the Escrow Agent by ordinary mail)
shall be binding on all parties.
<PAGE> 3
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
BUYER:
By: /s/ JAMES L. DECKEBACH
--------------------------------------------------
James L. Deckebach dba Wine Racks Unlimited
Title: Sole Proprietor
-----------------------------------------------
SELLER:
MULTI-COLOR CORPORATION
By: /s/ WILLIAM R. COCHRAN
--------------------------------------------------
Title: Vice President/Chief Financial Officer
-----------------------------------------------
ESCROW AGENT:
LONGWORTH TITLE AGENCY, INC.
By: /s/ WINFRED FRASER FINES
--------------------------------------------------
Title: Manager/Vice President
-----------------------------------------------
<PAGE> 4
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT A
ESCROW ACCOUNT
- ------------------------------------------------------------------------------------------------------------------------------------
Item Budgeted Time Frame Responsibility
====================================================================================================================================
<S> <C> <C> <C>
Environmental Remediation
- ------------------------------------------------------------------------------------------------------------------------------------
UST removal (Miami Valley Maintenance) $51,534.00 Closing/check
- ------------------------------------------------------------------------------------------------------------------------------------
contract amount for asbestos remediation (Central
Insulation) $26,723.00 Closing/escrow Multi-Color
- ------------------------------------------------------------------------------------------------------------------------------------
Waste Management/Rust $9,448.00 Closing/check
- ------------------------------------------------------------------------------------------------------------------------------------
ATC billing outstanding on 3/29/98 58005-0006
& 58005-0007 $43,430.00 Closing/escrow Multi-Color
- ------------------------------------------------------------------------------------------------------------------------------------
repair of black top over tank farm in North East
section $3,750.00 30 days/escrow James Deckebach
- ------------------------------------------------------------------------------------------------------------------------------------
Press Pit soil treated off site by Waste
Management $2,915.27 30 days/check
- ------------------------------------------------------------------------------------------------------------------------------------
repair of black top damage from earth moving
equipment $2,346.00 30 days/escrow James Deckebach
- ------------------------------------------------------------------------------------------------------------------------------------
cost to repair brick wall in boiler room $3,500.00 30 days/escrow Multi-Color
- ------------------------------------------------------------------------------------------------------------------------------------
replace or pay for 112.5 KVA 480/240 transformer
that was sold $2,000.00 Closing/check to Jim
- ------------------------------------------------------------------------------------------------------------------------------------
replace hoist on crane in building #18 where cylinder
was removed $200.00 Closing/escrow Multi-Color
- ------------------------------------------------------------------------------------------------------------------------------------
office flooding due to broken pipe in the 4th floor $1,271.48 Closing/check
- ------------------------------------------------------------------------------------------------------------------------------------
broken pipe on 4th floor not repaired $500.00 4 days/escrow Multi-Color
- ------------------------------------------------------------------------------------------------------------------------------------
garbage & metal along north fence line to be
removed, pallets in parking lot and along Eastern
loading area removed, contents of 2 hoppers filled
with debris, removed $1,500.00 30 days/escrow Multi-Color
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 1
EXHIBIT 10.18
ESCROW AGREEMENT
(126 AND 127 REMEDIATION)
THIS ESCROW AGREEMENT is made effective as of March 31, 1998, by and
among PNC Bank, National Association, a ________________ corporation ("Escrow
Agent"), James L. Deckebach d/b/a Wine Racks Unlimited ("Buyer"), and
Multi-Color Corporation, an Ohio corporation ("Seller").
WITNESSETH:
WHEREAS, Buyer and Seller have entered into an Agreement as amended
("Agreement") for the purchase and sale of certain property commonly known as
4575 Eastern Avenue, Cincinnati, Hamilton County, Ohio ("Property").
WHEREAS, pursuant to the terms of agreements reached between Buyer and
Seller, Seller is obligated to expend up to One Hundred Thousand Dollars
($100,000.00) to complete the items set forth on the attached Exhibit A
("Obligations"); and
WHEREAS, Seller has not yet completed its Obligations under the
Agreement but Buyer and Seller have agreed to close on the Property with the
execution of this Escrow Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants set forth herein:
1. Deposit of Funds. Buyer shall deposit with Escrow Agent the sum of
$100,000 (collectively the "Funds") and Escrow Agent agrees to receive and hold
the Funds and to deal with the Funds as hereinafter set forth). Such Funds shall
be held by Escrow Agent in an interest bearing account with Escrow Agent, which
interest will accrue to the benefit of Seller.
2. Completion of Obligations. Seller shall determine the environmental
remediation approach necessary to complete the Obligations subject to the
reasonable satisfaction of Buyer as set forth in Exhibit A and will make a good
faith effort to complete the same within the time periods set forth in Exhibit
A. In the event Seller has not completed the Obligations in accordance with the
statements set forth in Exhibit A within the time periods set forth in Exhibit
A, the Funds allocated to the particular Obligations as set forth in Exhibit A
shall be delivered to Buyer. In the event that an Obligation is completed to the
reasonable satisfaction of Buyer for less than the amount set forth on Exhibit
A, Escrow Agent is directed to send the excess amounts to Escrow Agent for the
account of Seller.
3. Time Limit. In the event that the Escrow Agent has not been given
written instructions signed by Buyer and Seller to disburse the Funds on or
before 3:00 p.m., April 1, 2000 then on April 2, 2000, the Escrow Agent shall
disburse the Funds to Buyer.
4. The escrow of Funds in this Escrow Agreement shall in no way affect
or limit Seller's obligations under the Agreement.
<PAGE> 2
-2-
5. Methods of Funds Transfer. Escrow Agent may transfer the Funds by
corporate check, by wire transfer, by certified check, or by such other means as
may be agreed upon in writing.
6. Release. The parties agree that Escrow Agent shall have no liability
under this Agreement except to account for the Funds as specified herein. Upon
delivery by Escrow Agent of the Funds as provided herein, the endorsement,
acceptance, or negotiation of such funds shall constitute a full and complete
release by such party of the Escrow Agent from any and all liability of any kind
or nature whatsoever in connection with this Agreement or the escrow.
7. Indemnity. Buyer and Seller ("Indemnitors") jointly and severally
hereby agree to release, hold harmless and indemnify the Escrow Agent from and
against any liability, cost or expense, including attorney fees and court costs,
incurred by it in connection with any arbitration or court action, or any act
taken within the scope of this Agreement or any failure to act, unless due to
the negligence or misconduct of the Escrow Agent, or its failure to comply with
the terms of this Agreement.
In furtherance, and not in limitation of the foregoing, Indemnitors
agree as follows, which agreement shall survive the disbursement of all Funds in
the escrow account: (i) Indemnitors shall not hold Escrow Agent responsible in
any manner for, and Indemnitors shall reimburse and indemnify the Escrow Agent
for and hold Escrow Agent harmless against, any loss, liability or expense
arising out of, or in connection with Escrow Agent's acceptance of or Escrow
Agent's performance of its duties hereunder as well as the reasonable costs and
expenses of defending against any claim or liability arising out of, or relating
to, this Agreement; and (ii) Indemnitors shall not hold Escrow Agent liable for
any error in judgment or for any act done or omitted by Escrow Agent in good
faith or for any mistake in fact or law or for anything which Escrow Agent does
or refrains from doing in connection with this Escrow Agreement.
8. Termination of Liability. Upon disbursement of all Funds Escrow
Agent shall be relieved of all further liability and responsibility in
connection with the Escrow Agreement or this escrow.
9. Interpleader. In the event any demand is made upon Escrow Agent
concerning this Agreement or this Escrow, or at any time for any cause or for no
cause, Escrow Agent, at its election and in its sole discretion, may cause the
Funds to be delivered to a court of competent jurisdiction to determine the
rights of Seller and Buyer or to interplead Seller and Buyer by an action
brought in any such court. Deposit by Escrow Agent into such court of the Funds
shall relieve Escrow Agent of all further liability and responsibility in
connection with this Agreement and the escrow.
10. Counterparts and Faxes. This Agreement may be executed in
counterparts and shall be binding on the parties notwithstanding that all
parties have not signed the same counterpart. Also, a faxed copy of an executed
counterpart (with originals to be sent to the Escrow Agent by ordinary mail)
shall be binding on all parties.
<PAGE> 3
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
BUYER:
By: /s/ JAMES L. DECKEBACH
--------------------------------------------
James L. Deckebach dba Wine Racks
Limited
Title: Sole Proprietor
------------------------------------------
SELLER:
MULTI-COLOR CORPORATION
By: /s/ WILLIAM R. COCHRAN
--------------------------------------------
Title: Vice President/Chief Financial Officer
------------------------------------------
ESCROW AGENT
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ASHLEY B. MARTIN
--------------------------------------------
Title: Corporate Banking Officer
------------------------------------------
<PAGE> 4
EXHIBIT A
($100,000)
The 126 and 127 Remediation, as defined in this Escrow Agreement shall
consist of: (i) the investigation and definition of the lateral extent of
groundwater contamination on or originating from Parcels 126 and 127 and; (ii)
the remediation of soils and groundwater so as to achieve applicable generic
cleanup criteria in accordance with procedures and standards of, without the
requirement for formerly entering into, Ohio's Voluntary Action Program, O.R.C.
Chapter 3746 and O.A.C. Chapter 3745-300 or in accordance with cleanup criteria
as determined by a site-specific health-based risk assessment performed in
accordance with U.S. EPA's Risk Assessment Guidelines so as to allow commercial
and industrial use and development of Parcels 126 and 127. Remediation of
Parcels 126 and 127 by the Seller may be satisfied by the completion of a risk
assessment that complies with U.S. EPA's risk assessment guidelines which
demonstrate that these parcels are suitable for commercial or industrial use
without posing undue risk to public health or the environment. The term
"Remediation" shall include, but not be limited to, any appropriate
investigation, characterization, cleanup, removal and/or remediation of
environmental contamination on or emanating from Parcels 126 and 127, and shall
include monitoring, evaluations, assessments, inspections, well installation
operation, maintenance or abandonment, engineering or environmental studies,
surveys, risk assessments, remediation, replacement of fill or dirt and the
excavation, removal, transportation and off-site disposal of contaminated media,
including without limitation, soil and other geological material and other
wastes generated during Remediation. Purchaser agrees that Seller shall be
entitled to reimbursement from the Escrow for all Remediation-related costs and
expenses that Seller incurs in performing Remediation on Parcels 126 and 127.
All information and data pertaining to 126 and 127 Remediation shall be promptly
provided to Buyer. The Seller agrees to comply with all applicable laws,
regulations, codes and ordinances in performing this Remediation.
<PAGE> 1
38
Exhibit 23.1
Consent of Independent Certified Public Accountants
As independent certified public accountants, we hereby consent to the
incorporation by reference of our report dated May 8, 1998, except for Note
12(b) as to which the date is June 17, 1998 and Note 15 as to which the date is
June 22, 1998 which is included in this Form 10-K, into the Company's previously
filed Registration Statements on Form S-8 (No. 33-51772) and (No. 333-42487).
GRANT THORNTON LLP
Cincinnati, Ohio
June 26, 1998
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<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> MAR-29-1998
<PERIOD-END> MAR-29-1998
<CASH> 12,000
<SECURITIES> 0
<RECEIVABLES> 4,812,000
<ALLOWANCES> 0
<INVENTORY> 5,023,000
<CURRENT-ASSETS> 11,423,000
<PP&E> 29,003,000
<DEPRECIATION> 10,383,000
<TOTAL-ASSETS> 30,854,000
<CURRENT-LIABILITIES> 13,250,000
<BONDS> 11,000,000
0
2,948,000
<COMMON> 9,410,000
<OTHER-SE> (7,693,000)
<TOTAL-LIABILITY-AND-EQUITY> 30,854,000
<SALES> 47,576,000
<TOTAL-REVENUES> 47,576,000
<CGS> 42,735,000
<TOTAL-COSTS> 50,031,000
<OTHER-EXPENSES> 583,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,033,000
<INCOME-PRETAX> (4,071,000)
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4,071,000)
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