Exhibit 11.00
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TAX ALLOCATION AGREEMENT
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This Tax Allocation Agreement entered into as of November 14, 1996 by
and among POWER CONTROL TECHNOLOGIES INC., a Delaware corporation ("Parent"),
MAFCO WORLDWIDE CORPORATION, a Delaware corporation ("Worldwide"), its
Subsidiaries (as hereinafter defined) and any entities which become parties
hereto pursuant to Paragraph 20 hereof. Parent and its Subsidiaries are
hereinafter sometimes referred to as the "Group." Worldwide and its
Subsidiaries are hereinafter sometimes referred to as the "Worldwide Group."
WHEREAS, PCT International Holdings Inc. ("PCTIH'), a wholly-owned
subsidiary of Parent purchased all of the stock of Flavor Holdings Inc.
("FHI"), the Parent of Worldwide;
WHEREAS, it is expected that PCTIH will contribute the stock of its
wholly-owned subsidiary, Pneumo Abex Corporation ("Pneumo") to FHI, which will
contribute such stock to Worldwide;
WHEREAS, it is expected that Worldwide Corporation will be merged
with and into Pneumo, the surviving corporation being Pneumo (the "Merger");
WHEREAS, the Worldwide Group desires, to the extent permitted by the
Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
promulgated thereunder (the "Treasury Regulations"), to continue to be
included in the filing of consolidated Federal income tax returns on behalf of
the Group;
WHEREAS, Parent and the Worldwide Group wish to allocate and settle
among themselves in an equitable manner the consolidated Federal and combined
state or local income tax liability of the Worldwide Group for Taxable Periods
(as hereinafter defined) governed by this Agreement;
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WHEREAS, Worldwide and its Subsidiaries desire to be indemnified by
Parent with respect to certain tax liabilities, and Parent is willing to so
indemnify Worldwide and each of the Subsidiaries of Worldwide; and
WHEREAS, Parent the Worldwide Group and Pneumo desire to provide for
the continuation herein, the parties agree as follows:
1. Definitions.
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For purposes of this Agreement, the following terms shall be defined
as follows:
(a) "Taxable Period" shall mean any taxable year or portion
thereof, beginning on or after the date hereof, with respect to which a
consolidated Federal income tax return is properly filed on behalf of the
Group or (in the case of any combined state or local return) any such taxable
year with respect to which a combined state or local income tax return is
filed by Parent or any Subsidiary of Parent (other than Worldwide or any
Subsidiary of Worldwide) that includes Worldwide or any Subsidiary of Worldwide.
(b) "Worldwide Group's Federal Taxable Income" for a Taxable
Period shall mean the consolidated Federal taxable income (including, for all
purposes of this Agreement, alternative minimum taxable income) for such
Taxable Period that the Worldwide Group would have reported if it had not been
included in the consolidated Federal income tax return filed for the Group
with respect to such Taxable Period but instead had filed its own consolidated
Federal income tax return for such Taxable Period; provided, however, that in
computing such taxable income, the Worldwide Group shall not take into account
any amounts paid or payable by Worldwide to Parent under Paragraph 2 or 6
hereof with respect to Federal taxes or by Parent to Worldwide or any
Subsidiary of Worldwide under Paragraphs 2, 6 or 8 hereof with respect to
Federal taxes. In computing such taxable income, the Worldwide Group shall be
entitled to take into account deductions and credits attributable to the
carryover or
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carryback of any losses or credits of Worldwide or any Subsidiary of
Worldwide arising in any taxable year, but only after taking into account any
limitations on the use of such losses and credits imposed pursuant to Sections
172, 382, 383, 904 or 1212 of the Code or by Treasury Regulations Sections
1.1502-15, 1.1502-20, 1.1502- 21, 1.1502-22, 1.1502-91 (proposed), 1.1502-92
(proposed), 1.1502-93 (proposed) or 1.1502- 94 (proposed).
(c) "Worldwide Group's Federal Tax" for a Taxable Period
shall mean the consolidated Federal income tax liability or, if applicable,
the consolidated Federal alternative minimum tax liability for such Taxable
Period that the Worldwide Group would have incurred if it had not been
included in the consolidated Federal income tax return filed for the Group
with respect to such Taxable Period, but had instead filed its own
consolidated Federal income tax return for such Taxable Period; provided, that
in computing such tax liability for any Taxable Period, the Worldwide Group
shall not take into account any amounts paid or payable by Worldwide to Parent
or under Paragraphs 2 or 6 hereof with respect to Federal taxes or by Parent
to Worldwide or any Subsidiary of Worldwide under Paragraphs 2, 6 or 9 hereof
with respect to Federal taxes. In computing such tax liability, the Worldwide
Group shall be entitled to take into account deductions and credits
attributable to the carryover or carryback of any losses or credits of
Worldwide or any Subsidiary of Worldwide arising in any taxable year, but only
after taking into account any limitations on the use of such losses and
credits imposed pursuant to Sections 172, 382, 383, 384, 904 or 1212 of the
Code or by Treasury Regulations Sections 1.1502-15, 1.1502-20, 1.1502-21,
1.1502.22, 1.1502-91 (proposed), 1.1502-92 (proposed), 1.1502-93 (proposed) or
1.1502-94 (proposed). If the computation of the Worldwide Group's Federal Tax
does not result in a positive number, the Worldwide Group's Federal Tax shall
be deemed to be zero.
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(d) "Worldwide Group's State or Local Taxable Income" shall
mean the state or local taxable income, computed in a manner consistent with
the computation of the Worldwide Group's Federal Taxable Income, as defined
above, that Worldwide and/or any of its Subsidiaries would have reported with
respect to each state or local taxing jurisdiction for any Taxable Period for
which Worldwide and/or any such Subsidiary of Worldwide participates, with
Parent or any Subsidiary of Parent (other than Worldwide or any of its
Subsidiaries), in the filing of a combined state or local income tax return
with such jurisdiction if Worldwide had filed with each such jurisdiction
either a separate return (in a case where only one member of the Worldwide
Group joins in the filing of such combined return) or a combined return
including only those members of the Worldwide Group actually joining in such
combined return (in a case where more than one member of the Worldwide Group
joins in the filing of such combined return).
(e) "Worldwide Group's State or Local Tax" shall mean
the aggregate state and local income tax, computed in a manner consistent with
the computation of the Worldwide Group's Federal Tax, as defined above, that
Worldwide and/or any of its Subsidiaries would have incurred with respect to
each relevant state and local taxing jurisdiction for any Taxable Period for
which Worldwide and/or any such Subsidiary participates with Parent or any
Subsidiary of Parent (other than Worldwide or any of its Subsidiaries) in the
filing of a combined state or local income tax return with such jurisdiction
if Mafco and/or any such Subsidiary had filed with such jurisdiction either a
separate return (in a case where only one member of the Worldwide Group joins
in the filing of such combined return) or a combined return including only
those members of the Worldwide Group actually joining in such combined return
(in a case where more than one member or the Worldwide Group joins in the
filing of such return).
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(f) "Estimated Tax Payment" shall mean for a Taxable Period
the aggregate payments by Worldwide to Parent or, as the case may be, for such
Taxable Period provided in Paragraph 3.
(g) "Final Determination" shall mean a closing agreement
with the Internal Revenue Service or the relevant state or local taxing
authorities, an agreement contained on Internal Revenue Service Form 870-AD or
other comparable form, an agreement that constitutes a determination under
Section 1313(a)(4) of the Code, a claim for refund which has been allowed, a
deficiency notice with respect to which the period for filing a petition with
the Tax Court or the relevant state or local tribunal has expired or a
decision of any court of competent jurisdiction that is not subject to appeal
or as to which the time for appeal has expired.
(h) "Subsidiary" as to any entity (the parent corporation)
shall mean a corporation that would be an includible corporation that is a
member of an affiliated group of corporations of which the parent corporation
would be the common parent, all within the meaning attributable to such terms
in Section 1504 of the Code and Treasury Regulations thereunder.
2. Payments Between Parent and Worldwide.
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(a) For each Taxable Period, Worldwide shall pay to Parent,
an amount equal to the excess, if any, of the Worldwide Group's Federal Tax
for such Taxable Period over the aggregate amount of the Estimated Tax
Payments actually made by Worldwide to Parent with respect to Federal income
taxes for such Taxable Period. If the aggregate amount of the Estimated Tax
Payments actually made to Parent with respect to Federal income taxes for such
Taxable Period exceeds the Worldwide Group's Federal Tax for such Taxable
Period, Parent shall pay to Worldwide an amount equal to such excess.
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(b) For each Taxable Period with respect to which Worldwide
or any of its Subsidiaries participates in the filing of any combined state or
local income tax return with Parent or any Subsidiary of Parent (other than
Worldwide or any Subsidiary of Worldwide), Worldwide shall pay to Parent an
amount equal to the excess, if any, of the Worldwide Group's State and Local
Tax for such Taxable Period over the aggregate amount of the Estimated Tax
Payments actually made to Parent, with respect to such state or local income
tax for such Taxable Period exceeds the Worldwide Group's State or Local Tax
for such Taxable Period, Parent shall pay to Worldwide an amount equal to such
excess.
3. Estimated Tax Payments.
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(a) Worldwide shall pay to Parent no later than the tenth
day of each of the fourth, sixth, ninth and twelfth months of such Taxable
Period, the amount of estimated Federal income taxes that the Worldwide Group
would have been required to pay on or before the fifteenth day of each such
month if Worldwide were filing a consolidated Federal income tax return for
such Taxable Period for an affiliated group or corporations of which Worldwide
was the common parent and that consisted only of the members of the Worldwide
Group. Such estimated Federal income tax liability shall be determined
consistent with the calculation of the Worldwide Group's Federal Tax and shall
reflect the estimated taxable income of the Worldwide Group projected for
three, six, nine and twelve months, respectively.
(b) For every Taxable Period with respect to which one or
more members of the Worldwide Group participates in the filing of a combined
state or local income tax return with Parent or any Subsidiary of Parent (other
than Worldwide or any member of the Worldwide Group), Worldwide shall pay to
Parent no later than the fifth day prior to the date an estimated state or
local income tax payment is due, the amount of estimated taxes that Worldwide
or any such Subsidiary of Worldwide would have been required to pay if
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Worldwide or any such Subsidiary of Worldwide had filed for such period
either a separate return (in a case where only one member of the Worldwide
Group joins in the filing of such combined return) or a combined return (in a
case where more than one member of the Worldwide Group joins in the filing of
such combined return). Such estimated state or local income tax liability
shall be determined consistent with the calculation of the Worldwide Group's
State and Local Tax.
4. Restricted Payments.
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Notwithstanding any other provisions of this Agreement, in no event
shall any payment be made by Worldwide or any Subsidiary of Worldwide to
Parent or any other member of the Group (other than Worldwide or any
Subsidiary of Worldwide), or to any assignee of Parent's right to payments
hereunder, pursuant to this Agreement to the extent that and for so long as
such payment is prohibited under or is inconsistent with the terms of that
certain Credit Agreement dated as of June 29, 1994 between Worldwide, the
lenders that are or may become parties thereto (the "Banks"), and The Chase
Manhattan Bank (as successor to The Chase Manhattan Bank (National
Association)), as agent for the Banks (the "Agent") (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement").
5. Time and Form of Payment.
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(a) Payments by Worldwide or Parent pursuant to Paragraph 2
hereof shall be made no later than the fifth day prior to the due date of the
Group's consolidated Federal income tax return or any relevant combined state
or local income tax return for the period for which such a payment is due. If
the due date for any such return is extended, any amounts due at the time of
filing a request for extension of time to file shall be paid on an estimated
basis. No later than five (5) days prior to the extended due date for such
return, Worldwide's payment shall be recalculated, and any difference between
(i) the tax liability of the Worldwide
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Group to be reflected on such return and (ii) all prior Estimated Tax Payments
with respect to the such Taxable Period shall be paid by such fifth day to the
party entitled thereto, with interest from the original due date at the
relevant statutory rate.
(b) Each Subsidiary of Worldwide agrees to pay to Worldwide
its share of each of the items of Worldwide Group's Federal Tax and Worldwide
Group's State and Local Tax and of Estimated Tax Payments, each such share to
be determined in accordance with the principles of Paragraph 1(c), 1(e), 3(a)
and 3(b) hereof, no later than one (1) business day prior to the date upon
which the relevant payment by Worldwide is required to be made under the terms
hereof. Worldwide agrees to pay to each Subsidiary of Worldwide its share of
any payment received by Worldwide from Parent pursuant to this Agreement, each
such share to be determined in accordance with the principle of Paragraphs
1(c), 1(e), 3(a) and 3(b) hereof, as promptly as practicable following the
receipt of any such payment and the determination of such share.
6. Adjustments.
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(a) Redetermination of Tax Liability. In the event of any
redetermination of the consolidated Federal income tax liability of the Group
for any Taxable Period (or of the combined state or local income tax liability
for any Taxable Period for which a combined state or local income tax return
is filed) as a result of an audit by the Internal Revenue Service (or the
relevant state or local taxing authorities), a claim for refund or otherwise,
the Worldwide Group's Federal Tax (or the Worldwide Group's State and Local
Tax) shall be recomputed for such Taxable Period and any prior and subsequent
Taxable Periods to take into account such redetermination, and payments due
pursuant to Paragraph 2 hereof shall be appropriately adjusted. Any payment by
Worldwide to Parent or by Parent to Worldwide required by such adjustment
shall be paid within seven (7) days after the date of a Final Determination
with
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respect to such redetermination or as soon as such adjustment can
practicably be calculated, if later, together with interest for the period at
the rate provided for in the relevant statute.
(b) Refund of Tax Sharing Payment. In the event that the
calculation of the Worldwide Group's Federal Taxable Income (or the Worldwide
Group's State and Local Taxable Income) for any Taxable Period results in a
loss, such loss may be carried back and deducted in calculating the Worldwide
Group's Federal Tax (or the Worldwide Group's State and Local Tax) for prior
Taxable Periods in the same manner as it would have been so carried back and
deducted had it constituted a net operating loss deduction under Section 172
of the Code or a net capital loss deduction under Section 1212 of the Code (or
in the case of state and local tax, under applicable state or local
provisions), as such provisions would have been applied to a consolidated (or
combined) return filed with respect to the Worldwide Group (or one or more
members thereof), but after taking into account any limitation on the use of
such loss imposed pursuant to Sections 382, 383, 384 or 904 of the Code or
Treasury Regulation Sections 1.1502-15, 1.1502-20, 1.1502-21, 1.1502-22,
1.1502-91 (proposed), 1.1502.92 (proposed), 1.1502-93 (proposed) or 1.1502-94
(proposed) (or with respect to state and local tax, applicable state or local
provisions). In such case the Worldwide Group's Federal Tax (or the Worldwide
Group's State and Local Tax) shall be recomputed for the Taxable Period or
Periods to which such loss is carried and for any subsequent Taxable Periods
to take into account the deduction of such loss, and payments made pursuant to
Paragraph 2 hereof shall be appropriately adjusted. In the case of any
carryback of a loss pursuant to this Paragraph 6(b), any payment by Parent to
Worldwide required by such adjustment shall be paid within seven (7) days
after the date of filing the consolidated Federal income tax return of the
Group (or relevant combined state or local income tax return) for the year in
which such loss arises.
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Excess credits for any Taxable Period shall be carried back and otherwise
treated in a manner consistent with the provision of this Paragraph 6.
(c) In the event PCTIH is required to make any payments (any
such payment, a "Relevant Payment") pursuant to Section 4.11(j) of the Stock
and VSR Purchase Agreement, dated as of October 23, 1996 (the "Purchase
Agreement"), by and among Parent, PCTIH and Mafco Consolidated Group Inc., as
a result of Worldwide or any of its Subsidiaries having received a refund or
having utilized the benefit of any overpayment of Taxes (as defined in the
Purchase Agreement), Worldwide shall, promptly following its receipt of notice
thereof, pay, or cause to be paid, to Parent or its designee an amount equal
to the Relevant Payment.
7. Interest on Unpaid Amounts.
In the event that any party fails to pay any amount owed pursuant to
this Agreement within ten (10) days after the date when due, interest shall
accrue on any unpaid amount at the "designated rate" from the due date until
such amounts are fully paid. For purposes of this Agreement, the "designated
rate" shall mean ten percent (10%).
8. Indemnification.
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Parent shall indemnify Worldwide and each Subsidiary of Worldwide on
an after-tax basis (taking into account, when realized, any tax detriment or
tax benefit to Worldwide or any Subsidiary of Worldwide of (x) a payment
hereunder or (y) the liability to the Internal Revenue Service or state, local
or foreign taxing authority giving rise to such a payment), with respect to
and in the amount of:
(a) any liability to the Internal Revenue Service for
Federal income tax incurred by Worldwide or any Subsidiary of Worldwide for
any Taxable Period with respect to
which Worldwide or any Subsidiary of Worldwide is included in a consolidated
Federal income tax return filed on behalf of the Group;
(b) any liability for state and local income tax to a state
or local taxing authority incurred by Worldwide or any Subsidiary of Worldwide
with respect to any jurisdiction for any Taxable Period with respect to which
Worldwide or any such Subsidiary of Worldwide participates in the filing of a
combined state or local income tax return with Parent or any Subsidiary of
Parent (other than Worldwide or any Subsidiary of Worldwide);
(c) any liability for Federal, state or local income tax to
the Internal Revenue Service or a state or local taxing authority, as the case
may be, incurred by Worldwide or any Subsidiary of Worldwide, to the extent
attributable to any member of the Group (other than Worldwide or any
Subsidiary of Worldwide) and for which Worldwide or such Subsidiary is liable
as a result of participating in the filing of a combined state or local income
tax return of the Group or as a result of being included in a consolidated
Federal income tax return of the Group or as a result of participating in the
filing of a combined state or local income tax return with Parent or any
Subsidiary of Parent (other than Worldwide or any Subsidiary of Worldwide);
and
(d) interest, penalties and additions to tax, and costs
and expenses in connection with any liabilities described in Paragraphs 8(a),
(b) or (c) above. Parent shall pay to Worldwide amounts due under Paragraphs
8(a), (b), and (c) and Paragraph 8(d) (to the extent such amounts are related
to amounts under Paragraphs 8(a), (b) or (c)) no later than seven (7) days
after the date of a Final Determination with respect thereto.
9. Filing of Returns, Payments of Tax, Etc.
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(a) Agent. Worldwide and each Subsidiary of Worldwide hereby
appoint Parent as their agent, as long as Worldwide or such Subsidiary, as the
case may be, is a
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member of the Group, for the purpose of filing consolidated Federal income tax
returns and for making any election or application or taking any action in
connection therewith on behalf of Worldwide or such Subsidiary consistent with
the terms of this Agreement. Parent agrees that it shall file consolidated
Federal income tax returns for each Taxable Period of the Group. Worldwide and
each Subsidiary of Worldwide hereby appoint Parent as their agent, as long as
Worldwide or such Subsidiary, as the case may be, is a member of the Group,
for the purpose of filing any combined state or local income tax returns that
Parent may elect to file or cause to be filed, and for making any election or
application or taking any action in connection therewith on behalf of
Worldwide or such Subsidiary of Worldwide hereby consent to the filing of such
returns, and to the making of such elections and applications. Parent agrees
that to the extent the filing of any combined state or local income tax return
by Parent or any Subsidiary of Parent with Worldwide or any Subsidiary of
Worldwide for any period will reduce the state or local tax liability of
Worldwide or any Subsidiary of Worldwide, without causing an increase in the
state or local tax liability of Parent or any Subsidiary of Parent (other than
Worldwide or any Subsidiary of Worldwide) in such period, Parent will file or
cause to be filed for such Taxable Period a combined state or local income tax
return with Worldwide and/or its Subsidiaries; provided, however, that such
filing is permitted by applicable state or local law. Except as provided in
this Paragraph 9, nothing herein shall be construed as requiring Parent or any
Subsidiary of Parent to file combined state or local income tax returns on
behalf of any members of the Group (including the Worldwide Group) for any
Taxable Period.
(b) Cooperation. Worldwide Group shall cooperate with Parent
in the filing, to the extent permitted by law, of a consolidated Federal
income tax return and such combined state or local income tax returns for
members of the Group (including the Worldwide
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Group) as Parent elects to file or cause to be filed, by maintaining such
books and records and providing such information as may be necessary or useful
in the filing of such returns and executing any documents and taking any
actions that Parent may reasonably request in connection therewith. Parent,
and Worldwide shall provide one another with such information concerning such
returns and the applications of payments made under this Agreement as any of
such corporations may reasonably request of one another.
(c) Payment of Tax. For each Taxable Period, Parent shall
timely pay or discharge, or cause to be timely paid or discharged, the
consolidated Federal income tax liability of the Group for such Taxable Period
and the combined state or local income tax liability shown on any combined
state or local income tax return that Parent or any Subsidiary of Parent
elects or is required to file that includes Worldwide or any Subsidiary of
Worldwide.
10. Resolution of Disputes.
----------------------
Any dispute concerning the calculation or basis of determination of
any payment provided for hereunder shall be resolved by the independent
certified public accountants for Parent, whose judgment shall be conclusive
and binding upon the parties, in the absence of manifest error.
11. Adjudications.
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In any audit, conference, or other proceeding with the Internal
Revenue Service or the relevant state or local authorities, or in any judicial
proceedings concerning the determination of the Federal income tax liabilities
of the Group or Worldwide (or any Subsidiary of Worldwide) or the state or
local income tax liability of any combined group including Parent or any
Subsidiary of Parent (other than Worldwide or any Subsidiary of Worldwide) and
Worldwide or any Subsidiary of Worldwide shall be represented by persons
selected by Parent. The settlement of terms of settlement of any issues
relating to such proceeding shall be in the
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sole discretion of Parent, absent manifest error, and Worldwide and each
Subsidiary of Worldwide hereby appoint Parent as their agent for the purpose
of proposing and concluding any such settlement.
12. Binding Effect; Successors.
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This Agreement shall be binding upon Parent, Worldwide and each
Subsidiary of Parent that is a signatory hereto and the Subsidiaries of Parent
that become parties hereto pursuant to Paragraph 20 hereof. Worldwide agrees
to cause all of its Subsidiaries to follow this Agreement. This Agreement
shall inure to the benefit of, and be binding upon, any successors or assigns
of the parties hereto, including, without limitation, any Subsidiary of
Worldwide that becomes a party hereto pursuant to Paragraph 20 and including
Pneumo, as successor to Worldwide pursuant to the Merger. Worldwide and each
other party hereto may assign their right to receive payments under this
Agreement but may not assign or delegate their obligations hereunder.
13. Interpretation.
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This Agreement is intended to calculate and allocate certain Federal
and state and local income tax liabilities of Parent and the Worldwide Group,
and any situation or circumstance concerning such calculation and allocation
that is not specifically contemplated hereby or provided for herein shall be
dealt with in a manner consistent with the underlying principles of
calculation and allocation in this Agreement.
14. Legal and Accounting Fees.
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Any fees or expense for legal, accounting or other professional
services rendered in connection with (i) the preparation of a consolidated
Federal or combined state or local income tax return for the Group, members of
the Group (to the extent that such services reasonably pertain to the tax
liability of members of the Worldwide Group rather than any other members
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of the Group) or the Worldwide Group, (ii) the application of the provisions of
this Agreement or (iii) the conduct of any audit, conference or proceeding of
the Internal Revenue Service or relevant state or local authorities or
judicial proceedings relevant to any determination required to be made
hereunder shall be allocated between Parent and Worldwide in a manner
resulting in Worldwide bearing a reasonable approximation of the actual amount
of such fees or expenses hereunder reasonably related to, and for the benefit
of, Worldwide and its Subsidiaries, rather than to or for other members of the
Group.
15. Limitation On Additional Tax Agreements; Effect of the
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Agreement.
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This Agreement shall determine the liability of Parent, and the
members of the Worldwide Group to each other as to the matters provided for
herein, whether or not such determination is effective for purposes of the
Code or the Treasury Regulations promulgated thereunder or state or local
revenue laws and regulations, financial reporting purposes or other purposes.
Subject to Paragraph 16, nothing contained herein shall preclude Parent from
entering into any agreement with any other Subsidiary of Parent concerning
allocation of tax liabilities or Worldwide from entering into any agreement
with any Subsidiary of Worldwide concerning allocation of tax liabilities.
16. Entire Agreement; Assignment.
----------------------------
This Agreement embodies the entire understanding among the parties
relating to its subject matter and supersedes and terminates all prior
agreements and understandings among the parties with respect to such subject
matter. Any and all prior correspondence, conversations and memoranda are
merged herein and shall be without effect hereon. No promises, covenants or
representations of any kind, other than those expressly stated herein, have
been made to induce any party to enter into this Agreement. This Agreement,
including this provision against oral modification, shall not be modified or
terminated except by a
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writing duly signed by each of the parties hereto (but, in the case of each
Subsidiary of Worldwide, for only so long as it remains a Subsidiary of
Worldwide), and no waiver of any provisions of this Agreement shall be
effective unless in writing duly signed by the party sought to be bound.
Worldwide and each Subsidiary (and their successors and assigns) may assign
all of their respective rights under and interest in this Agreement to the
Lenders under the Credit Agreement as collateral security for their respective
obligations (and those of any of its successors and assigns) to such Lenders.
17. Code References.
---------------
Any references to the Code or Treasury Regulations shall be deemed to
refer to the relevant provisions of any such successor statute or regulation
and shall refer to such provisions as in effect from time to time.
18. Notices.
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Any payment, notice or communication required or permitted to be
given under this Agreement shall be in writing (including telecopy
communication) and mailed, telecopied or delivered:
If to Parent, to it at:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If to Worldwide, to it at:
Xxxxxxxxx Xxxxxx xxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Vice President -- Finance
or to such other address as a party shall furnish in writing to the other
parties. All such notices and communications shall be effective when received.
19. Counterparts.
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This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
20. New Members.
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Each of the parties to this Agreement recognizes that from time to
time, new Subsidiaries of Worldwide may be added to the Worldwide Group. Each
of the parties agrees that any new Subsidiary of Worldwide shall, without the
express written consent of the other parties, become party to this Agreement
for all purposes of this Agreement with respect to Taxable Periods ending
after such Subsidiary was added to the Worldwide Group.
21. Nature of Parent's Obligations.
------------------------------
Parent acknowledges and agrees that its obligations under this
Agreement shall not be affected by any impossibility, illegality,
impracticability, frustration of purpose, force majeure, act of government,
the bankruptcy or insolvency of Worldwide or any other party to this
Agreement, the failure or refusal of Worldwide or any other party to this
Agreement, to perform its obligations hereunder (other than the obligations to
make payment hereunder to Parent or to the extent that such failure was not
caused by the act or omission of Parent or), any dispute, set-off or
counterclaim (other than disputes, set-offs or counterclaims relating to
Worldwide's payment obligations under this Agreement to the extent that
Worldwide is not prevented from performing its payment obligation by any
restrictions in any of its contractual obligations), any change in the amount,
composition or terms of the assets, liabilities or equity of Worldwide or any
other party to this Agreement, or any other defense or right that Parent has
or may have that might have the effect of releasing Parent from such
obligations (other than performance of such obligations and except as provided
above).
22. Separate Undertaking.
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Without limiting the generality of any of the foregoing provisions of
this Agreement (but subject to the limitations expressly set forth in
Paragraph 21), Parent irrevocably waives, to the full extent permitted by
applicable law and for the benefit of, and as a separate undertaking with,
Worldwide and its Subsidiaries and their respective assigns, any defense to
the performance of this Agreement which may be available to Parent (i) as a
consequence of this Agreement being rejected or otherwise not assumed by
Worldwide or any Subsidiary of Worldwide or any trustee or other similar
official for any Subsidiary of Worldwide or any trustee or other similar
official for any of them or for any substantial part of their respective
properties, or (ii) as a consequence of this Agreement being otherwise
terminated or modified, in either such clause (i) or clause (ii) in any
proceeding seeking to adjudicate Worldwide a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of Worldwide or the debts of Worldwide under any law
relating to bankruptcy, insolvency or reorganization or relief or debtors,
whether such rejection, non-assumption, termination or modification be by
reason of this Agreement being held to be an executory contract or by reason
of any other circumstance. If this Agreement shall be so rejected or otherwise
not assumed, or so terminated or modified, Parent agrees for the benefit of,
and as a separate undertaking with, Worldwide and its Subsidiaries or their
respective assigns, as the case may be, an amount equal to each payment that
would otherwise be payable by Parent under or in connection with this
Agreement if this Agreement were not so rejected or otherwise not assumed or
were otherwise no so terminated or modified (taking into account any right of
offset or any defenses relating to failures or refusals to perform that Parent
is permitted to assert under Paragraph 21), such amount to be payable to such
person at its office specified in accordance with the instructions of such
person as and when such
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payment would otherwise be payable hereunder. Notwithstanding the foregoing,
Parent does not waive any right against Worldwide that it may have in such
proceeding.
23. Liquidated Damages
------------------
If Parent shall at any time and from time to time fail to timely
perform or comply with any of its payment obligations contained in this
Agreement, then in each such case:
(a) it shall be conclusively assumed without necessity of
proof that such failure by Parent was the sole and direct cause of damages
incurred by the payee of such payment irrespective of any other contributing
or intervening cause whatsoever;
(b) Parent agrees that it will be unconditionally liable for
liquidated damages (for loss of a bargain and not as a penalty) for the amount
of such payment not received when so due and payable as well as for all costs
and expenses, if any, including reasonable attorney's fees and expenses,
incurred in enforcing this Agreement; and
(c) Parent further irrevocably waives to the full extent
permitted by applicable law any right or defense Parent may have to cause the
payee to prove the cause of such damages or to mitigate the same, provided
that the party seeking to enforce this Agreement against Parent shall
nevertheless be required to prove that Parent failed to timely perform or
comply with its obligation to make such payment.
24. Covenants of Parent.
-------------------
(a) Reattribution Election. Parent hereby covenants and
agrees that parent will not permit any Subsidiary of Parent to cease to be a
member of the Group unless Parent and such Subsidiary agree that Parent and
such Subsidiary will make any elections required for the Group to retain the
net operating loss carryforwards of such Subsidiary, pursuant to the procedure
set forth in Proposed Treasury Regulation Section 1.1502-20(g)(1) and similar
or successor provision.
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(b) Covenant of Parent with Respect to Indemnification.
Parent hereby covenants and agrees that, if Parent is obligated under
Paragraph 8 of this Agreement to indemnify any member of the Worldwide Group,
Parent will cause the Subsidiaries of Parent to pay dividends to it in such
amounts as may be necessary to satisfy such indemnity obligations, provided
that such dividends shall not be required from any Subsidiary of Parent to the
extent that (i) the making of such dividend would cause such Subsidiary to
violate any contractual or governmental restrictions (and Parent agrees to use
reasonable efforts to have any such restrictions waived or otherwise removed,
provided that such efforts shall not cause the imposition on Parent or such
subsidiary of any additional costs or legal or regulatory burdens deemed by
Parent or such Subsidiary to be material), or (ii) such Subsidiary does not
have funds legally available to make such dividend; and
(c) Covenant of Parent with Respect to Subsidiaries of
Parent. Parent hereby covenants and agrees to cause the Subsidiaries of Parent
to enter into agreements with the members of the Worldwide Group under which
any Subsidiary of Parent agrees to pay such member of the Worldwide Group, to
the extent that such payment would not violate any contractual or governmental
restrictions, such Subsidiary's share of the Federal income tax liability of
the Group for which such member of the Worldwide Group becomes liable solely
pursuant to Treasury Regulation Section 1.1502-6. Parent agrees to use
reasonable efforts to have any restrictions on payments by a Subsidiary of
Parent under such agreement waived or otherwise removed, provided that such
efforts shall not cause the imposition on Parent or such Subsidiary of any
additional costs or legal or regulatory burdens deemed by Parent or such
Subsidiary to be material.
25. Governing Law.
-------------
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This Agreement shall be governed by the laws applicable to contracts
entered into and to be fully performed within the State of New York by
residents thereof.
26. Termination.
-----------
This Agreement may be terminated at the option of Parent at any time
from and after there has been payment in full in cash of principal of and
interest on all Loans (as defined in the Credit Agreement), all fees and
expenses accrued as of the date of such payment and all other amounts then due
and payable by Worldwide under the Credit Agreement (and none of the
Commitments (as defined in the Credit Agreement) remain in effect).
27. Third Party Beneficiaries.
-------------------------
Parent hereby acknowledges that the Agent and Banks under the Credit
Agreement (or their successors and assigns, as the case may be, for purposes
of this Paragraph 27 the "Lenders") are relying on the provisions hereof in
entering into, and agreeing to extend credit to Worldwide under, the Credit
Agreement, and are intended to be third-party beneficiaries of the provisions
hereof. Each of Parent and Consolidated further acknowledges and agrees that
such Lenders, as third-party beneficiaries hereof, shall have the right and
power to enforce the provisions hereof, in the name and on behalf of Worldwide
and that no amendment to or termination of this Agreement shall be effective
without the written consent of the Majority Banks (as defined in the Credit
Agreement), for so long as any of the Commitments (as defined in the Credit
Agreement) remain in effect and until payment in full in cash of principal of
and interest on all Loans (as defined in the Credit Agreement), all fees and
expenses accrued as of the date of such payment and all other amounts then due
and payable by Worldwide under the Credit Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed by its respective duly authorized officer as of the date first set
forth above.
POWER CONTROL TECHNOLOGIES INC.
By: /s/ Xxxxx Xxxxxx
----------------
MAFCO WORLDWIDE CORPORATION
By: /s/ Xxxxx Xxxxxx
----------------
Pneumo Abex Corporation hereby agrees that upon consummation of the Merger it
will succeed to Mafco Worldwide Corporation's rights and obligations
hereunder.
PNEUMO ABEX CORPORATION
By: /s/ Xxxxx Xxxxxx
----------------
