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[EXECUTION COPY]
PAXAR CORPORATION
6.74% Senior Notes due 2008
NOTE PURCHASE AGREEMENT
Dated as of August 4, 1998
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Table of Contents
Page
1. AUTHORIZATION OF NOTES .................................................................. 1
1.1. The Notes .................................................................... 1
1.2. The Subsidiary Guarantees .................................................... 1
2. SALE AND PURCHASE OF NOTES .............................................................. 2
3. CLOSING ................................................................................. 2
4. CONDITIONS TO CLOSING ................................................................... 2
4.1. Representations and Warranties ............................................... 3
4.2. Performance; No Default ...................................................... 3
4.3. Compliance Certificates ...................................................... 3
4.4. Opinions of Counsel .......................................................... 3
4.5. Subsidiary Guarantees ........................................................ 3
4.6. Purchase Permitted by Applicable Law, etc .................................... 4
4.7. Rating ....................................................................... 4
4.8. Payment of Special Counsel Fees .............................................. 4
4.9. Private Placement Number ..................................................... 4
4.10. Changes in Corporate Structure .............................................. 4
4.11. Proceedings and Documents ................................................... 5
4.12. Sale of Notes to Other Purchasers ........................................... 5
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY ........................................... 5
5.1. Organization; Power and Authority ............................................ 5
5.2. Authorization, etc ........................................................... 5
5.3. Disclosure ................................................................... 6
5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates ............. 6
5.5. Financial Statements ......................................................... 7
5.6. Compliance with Laws, Other Instruments, etc ................................. 7
5.7. Governmental Authorizations, etc ............................................. 7
5.8. Litigation; Observance of Agreements, Statutes and Orders .................... 8
5.9. Taxes ........................................................................ 8
5.10. Title to Property; Leases ................................................... 8
5.11. Licenses, Permits, etc ...................................................... 9
5.12. Compliance with ERISA ....................................................... 9
5.13. Private Offering by the Company ............................................. 10
5.14. Use of Proceeds; Margin Regulations ......................................... 11
5.15. Existing Indebtedness ....................................................... 11
5.16. Foreign Assets Control Regulations, etc ..................................... 11
5.17. Status Under Certain Statutes ............................................... 12
5.18. Environmental Matters ....................................................... 12
6. REPRESENTATIONS OF THE PURCHASER ........................................................ 12
6.1. Purchase of Notes ............................................................ 12
6.2. Source of Funds .............................................................. 13
7. INFORMATION AS TO COMPANY ............................................................... 14
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7.1. Financial and Business Information ........................................... 14
7.2. Officer's Certificate ........................................................ 17
7.3. Inspection ................................................................... 18
8. PREPAYMENT OF THE NOTES ................................................................. 18
8.1. Optional Prepayments with Make-Whole Amount .................................. 18
8.2. Allocation of Partial Prepayments ............................................ 19
8.3. Maturity; Surrender, etc ..................................................... 19
8.4. Purchase of Notes ............................................................ 19
8.5. Make-Whole Amount ............................................................ 20
9. AFFIRMATIVE COVENANTS ................................................................... 21
9.1. Compliance with Law .......................................................... 21
9.2. Insurance .................................................................... 21
9.3. Maintenance of Properties .................................................... 22
9.4. Payment of Taxes and Claims .................................................. 22
9.5. Corporate Existence, etc ..................................................... 22
9.6. Additional Subsidiary Guarantees; Release of Subsidiary Guarantees ........... 23
10. NEGATIVE COVENANTS ..................................................................... 23
10.1. Total Indebtedness; Restricted Subsidiary Indebtedness ...................... 23
10.2. Liens ....................................................................... 25
10.3. Limitation on Sale and Leaseback Transactions ............................... 26
10.4. Maintenance of Consolidated Net Worth ....................................... 27
10.5. Merger, Consolidation, etc .................................................. 27
10.6. Lines of Business ........................................................... 28
10.7. Transactions with Affiliates ................................................ 28
10.8. Designation of Restricted and Unrestricted Subsidiaries ..................... 29
11. EVENTS OF DEFAULT ...................................................................... 30
12. REMEDIES ON DEFAULT, ETC ............................................................... 32
12.1. Acceleration ................................................................ 32
12.2. Other Remedies .............................................................. 33
12.3. Rescission .................................................................. 33
12.4. No Waivers or Election of Remedies, Expenses, etc ........................... 34
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES .......................................... 34
13.1. Registration of Notes ....................................................... 34
13.2. Transfer and Exchange of Notes .............................................. 34
13.3. Replacement of Notes ........................................................ 35
14. PAYMENTS ON NOTES ...................................................................... 35
14.1. Place of Payment ............................................................ 35
14.2. Home Office Payment ......................................................... 36
15. EXPENSES, ETC .......................................................................... 36
15.1. Transaction Expenses ........................................................ 36
15.2. Survival .................................................................... 37
(ii)
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16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT ........................... 37
17. AMENDMENT AND WAIVER ................................................................... 37
17.1. Requirements ................................................................ 37
17.2. Solicitation of Holders of Notes ............................................ 38
17.3. Binding Effect, etc ......................................................... 38
17.4. Notes held by Company, etc .................................................. 39
18. NOTICES ................................................................................ 39
19. REPRODUCTION OF DOCUMENTS .............................................................. 39
20. CONFIDENTIAL INFORMATION ............................................................... 40
21. SUBSTITUTION OF PURCHASER .............................................................. 41
22. MISCELLANEOUS .......................................................................... 41
22.1. Successors and Assigns ...................................................... 41
22.2. Construction ................................................................ 42
22.3. Payments Due on Non-Business Days ........................................... 42
22.4. Severability ................................................................ 42
22.5. Accounting Terms; Pro Forma Calculations .................................... 42
22.6. Counterparts ................................................................ 43
22.7. Governing Law ............................................................... 43
Exhibit 1.1 -- Form of 6.74% Senior Note due 2008
Exhibit 1.2 -- Form of Subsidiary Guarantee
Exhibit 4.4(a) -- Form of Opinion of Special Counsel for the Company
Exhibit 4.4(b) -- Form of Opinion of Special Counsel for the Purchasers
Schedule A -- Names and Addresses of Purchasers
Schedule B -- Defined Terms
Schedule 5.3 -- Disclosure Documents
Schedule 5.4 -- Subsidiaries
Schedule 5.5 -- Financial Statements
Schedule 5.8 -- Litigation
Schedule 5.11 -- Licenses, etc.
Schedule 5.15 -- Existing Indebtedness
(iii)
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PAXAR CORPORATION
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Telephone: 000-000-0000
6.74% Senior Notes due 2008
As of August 4, 1998
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
PAXAR CORPORATION, a New York corporation (the "COMPANY"),
agrees with you as follows:
1. AUTHORIZATION OF NOTES.
1.1. THE NOTES.
The Company has duly authorized the issue and sale of
$150,000,000 aggregate principal amount of its 6.74% Senior Notes due 2008 (the
"NOTES"), such notes to be substantially in the form set out in Exhibit 1.1. As
used herein, the term "NOTES" shall mean all notes originally delivered pursuant
to this Agreement and the Other Agreements referred to below and all notes
delivered in substitution or exchange for any such note and, where applicable,
shall include the singular number as well as the plural. The terms "NOTE" means
one of the Notes. Certain capitalized and other terms used in this Agreement are
defined in Schedule B; references to a "Schedule" or an "Exhibit" are, unless
otherwise specified, to a Schedule or an Exhibit attached to this Agreement.
1.2. THE SUBSIDIARY GUARANTEES.
The Notes will be unconditionally guaranteed by each of the
Company's existing United States Restricted Subsidiaries, pursuant to subsidiary
guarantees substantially in the form of Exhibit 1.2 (individually a "SUBSIDIARY
GUARANTEE" and collectively the "SUBSIDIARY GUARANTEES", which terms shall
include after the date of the Closing all additional Subsidiary Guarantees from
time to time executed and delivered pursuant to Section 9.6).
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2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the
Company will issue and sell to you and you will purchase from the Company, at
the Closing provided for in Section 3, Notes in the principal amount specified
opposite your name in Schedule A at the purchase price of 100% of the principal
amount thereof. Contemporaneously with entering into this Agreement, the Company
is entering into separate Note Purchase Agreements (the "OTHER AGREEMENTS")
identical with this Agreement (except for the principal amounts of Notes to be
purchased) with each of the other purchasers named in Schedule A (the "OTHER
PURCHASERS"), providing for the sale at such Closing to each of the Other
Purchasers of Notes in the principal amount specified opposite its name in
Schedule A. Your obligation hereunder and the obligations of the Other
Purchasers under the Other Agreements are several and not joint obligations and
you shall have no obligation under any Other Agreement and no liability to any
Person for the performance or non-performance by any Other Purchaser thereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by you and
the Other Purchasers shall occur at the offices of Xxxxxxx Xxxx & Xxxxxxxxx, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 10:00 a.m., New York time, at a closing
(the "CLOSING") on August 11, 1998 or on such other Business Day thereafter on
or prior to August 14, 1998 as may be agreed upon by the Company and you and the
Other Purchasers. At the Closing the Company will deliver to you the Notes to be
purchased by you in the form of a single Note (or such greater number of Notes
in denominations of at least $100,000 as you may request) dated the date of the
Closing and registered in your name (or in the name of your nominee), against
delivery by you to the Company or its order of immediately available funds in
the amount of the purchase price therefor by wire transfer of immediately
available funds to Paxar Corporation Concentration Account (account number
940-878-0187) at Fleet Bank, White Plains, New York, ABA number 000000000.
If at the Closing the Company shall fail to tender such Notes
to you as provided above in this Section 3, or any of the conditions specified
in Section 4 shall not have been fulfilled to your satisfaction, you shall, at
your election, be relieved of all further obligations under this Agreement,
without thereby waiving any rights you may have by reason of such failure or
such nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold
to you at the Closing is subject to the fulfillment to your satisfaction, prior
to or at the Closing, of the following conditions:
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4.1. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company in this
Agreement shall be correct when made and at the time of the Closing.
4.2. PERFORMANCE; NO DEFAULT.
The Company shall have performed and complied with all
agreements and conditions contained in this Agreement required to be performed
or complied with by it prior to or at the Closing and after giving effect to the
issue and sale of the Notes (and the application of the proceeds thereof as
contemplated by Section 5.14) no Default or Event of Default shall have occurred
and be continuing.
4.3. COMPLIANCE CERTIFICATES.
(a) Officer's Certificate. The Company shall have delivered to
you an Officer's Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.10 have been fulfilled.
(b) Secretary's Certificate. The Company shall have delivered
to you a certificate of the Secretary or an Assistant Secretary of the Company
certifying as to the resolutions attached thereto and other corporate
proceedings relating to the authorization, execution and delivery of the Notes
and this Agreement and the Other Agreements.
4.4. OPINIONS OF COUNSEL.
You shall have received opinions in form and substance
satisfactory to you, dated the date of the Closing (a) from Snow Xxxxxx Xxxxxx
P.C., special counsel for the Company, substantially in the form set forth in
Exhibit 4.4(a) (as to certain matters given in reliance upon or accompanied by
separate opinion of Xxxxxx X. Xxxxxx, Esq., General Counsel of the Company) and
covering such other matters incident to the transactions contemplated hereby as
you or your counsel may reasonably request (and the Company hereby instructs its
counsel to deliver such opinion to you) and (b) from Xxxxxxx Xxxx & Xxxxxxxxx,
your special counsel in connection with such transactions, substantially in the
form set forth in Exhibit 4.4(b) and covering such other matters incident to
such transactions as you may reasonably request.
4.5. SUBSIDIARY GUARANTEES.
A Subsidiary Guarantee, dated as of a date on or before the
date of the Closing, shall have been executed and delivered by each United
States Restricted Subsidiary (in such capacity sometimes individually called a
"SUBSIDIARY GUARANTOR" and
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collectively the "SUBSIDIARY GUARANTORS") in the form hereinabove recited and
shall be in full force and effect.
4.6. PURCHASE PERMITTED BY APPLICABLE LAW, ETC.
On the date of the Closing your purchase of Notes shall (a) be
permitted by the laws and regulations of each jurisdiction to which you are
subject, without recourse to provisions (such as Section 1405(a)(8) of the New
York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (b) not
violate any applicable law or regulation (including without limitation
Regulation T, U or X of the Board of Governors of the Federal Reserve System)
and (c) not subject you to any tax, penalty or liability under or pursuant to
any applicable law or regulation, which law or regulation was not in effect on
the date hereof. If requested by you, you shall have received an Officer's
Certificate certifying as to such matters of fact as you may reasonably specify
to enable you to determine whether such purchase is so permitted.
4.7. RATING.
The Notes shall have been rated "BBB+" by Duff & Xxxxxx Credit
Rating Co. and such rating shall be in full force and effect and not under
review on the date of the Closing.
4.8. PAYMENT OF SPECIAL COUNSEL FEES.
Without limiting the provisions of Section 15.1, the Company
shall have paid on or before the Closing the fees, charges and disbursements of
your special counsel referred to in Section 4.4 to the extent reflected in a
statement of such counsel rendered to the Company at least one Business Day
prior to the Closing.
4.9. PRIVATE PLACEMENT NUMBER.
A Private Placement Number issued by Standard & Poor's CUSIP
Service Bureau (in cooperation with the Securities Valuation Office of the
National Association of Insurance Commissioners) shall have been obtained for
the Notes.
4.10. CHANGES IN CORPORATE STRUCTURE.
The Company shall not have changed its jurisdiction of
incorporation or been a party to any merger or consolidation or succeeded to all
or any substantial part of the liabilities of any other entity at any time
following the date of the most recent financial statements referred to in
Schedule 5.5.
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4.11. PROCEEDINGS AND DOCUMENTS.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be satisfactory to you and your special
counsel, and you and your special counsel shall have received all such
counterpart originals or certified or other copies of such documents as you or
they may reasonably request.
4.12. SALE OF NOTES TO OTHER PURCHASERS.
The Company shall sell to the Other Purchasers and the Other
Purchasers shall purchase the Notes to be purchased by them at the Closing as
specified in Schedule A.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
5.1. ORGANIZATION; POWER AND AUTHORITY.
The Company is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation, and is
duly qualified as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The Company has the corporate power and authority to
own or hold under lease the properties it purports to own or hold under lease,
to transact the business it transacts and proposes to transact, to execute and
deliver this Agreement and the Other Agreements and the Notes and to perform the
provisions hereof and thereof.
5.2. AUTHORIZATION, ETC.
This Agreement and the Other Agreements and the Notes have
been duly authorized by all necessary corporate action on the part of the
Company, and this Agreement constitutes, and upon execution and delivery thereof
each Note will constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
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5.3. DISCLOSURE.
The Company, through its agents, Credit Suisse First Boston
Corporation and NationsBanc Xxxxxxxxxx Securities LLC, has delivered to you a
copy of a Confidential Offering Memorandum, dated May 1998 (the "MEMORANDUM"),
relating to the transactions contemplated hereby. The Memorandum fairly
describes, in all material respects, the general nature of the business and
principal properties of the Company and its Subsidiaries. This Agreement, the
Memorandum, the documents, certificates or other writings delivered to you by or
on behalf of the Company in connection with the transactions contemplated hereby
and described in Schedule 5.3 (together with the Memorandum, the "DISCLOSURE
DOCUMENTS"), and the financial statements listed in Schedule 5.5, taken as a
whole, do not contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not misleading in
light of the circumstances under which they were made, provided that to the
extent any information contained in the Disclosure Documents constitutes a
forecast or projection, the Company represents only that it acted in good faith
and utilized reasonable assumptions, due and careful consideration and the best
information known to it at the time in the preparation of such information, but
the same may not be predictive of actual results. Since December 31, 1997, there
has been no change in the financial condition, operations, business, properties
or prospects of the Company or any Subsidiary except as disclosed in the
Disclosure Documents or in the financial statements listed in Schedule 5.5 and
other changes that individually or in the aggregate would not reasonably be
expected to have a Material Adverse Effect.
5.4. ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES; AFFILIATES.
(a) Schedule 5.4 contains a complete and correct list of the
Company's Subsidiaries, showing, as to each Subsidiary, the correct name
thereof, the jurisdiction of its organization, and the percentage of shares of
each class of its capital stock or similar equity interests outstanding owned by
the Company and each other Subsidiary. Schedule 5.4 also identifies each
Restricted Subsidiary and each Domestic Restricted Subsidiary as of the date of
this Agreement. No Subsidiary listed in Schedule 5.4 is a guarantor under the
Bank Credit Agreement other than the United States Subsidiaries so identified in
Schedule 5.4.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 5.4 as being owned by the
Company and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another Subsidiary free and clear
of any Lien (except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a
corporation duly organized, validly existing and in good standing
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under the laws of its jurisdiction of organization, and is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Each such
Subsidiary has the corporate power and authority to own or hold under lease the
properties it purports to own or hold under lease and to transact the business
it transacts and proposes to transact and, in the case of Subsidiary Guarantors,
to execute and deliver and perform its obligations under its respective
Subsidiary Guarantee.
5.5. FINANCIAL STATEMENTS.
The Company has delivered to you copies of the financial
statements of the Company and its Subsidiaries listed in Schedule 5.5. All of
said financial statements (including in each case the related schedules and
notes) fairly present in all material respects the consolidated financial
position of the Company and its Subsidiaries as of the respective dates
specified in such Schedule and the consolidated results of their operations and
cash flows for the respective periods so specified and have been prepared in
accordance with GAAP consistently applied throughout the periods involved except
as set forth in the notes thereto (subject, in the case of any interim financial
statements, to normal year-end adjustments).
5.6. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
The execution, delivery and performance by the Company of this
Agreement and the Notes and by the Subsidiary Guarantors of their respective
Subsidiary Guarantees will not (i) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect of
any property of the Company or any Subsidiary under, any indenture, mortgage,
deed of trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other material agreement or instrument to which the Company or
any Subsidiary is bound or by which the Company or any Subsidiary or any of
their respective properties may be bound or affected, (ii) conflict with or
result in a breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or Governmental Authority
applicable to the Company or any Subsidiary or (iii) violate any provision of
any statute or other rule or regulation of any Governmental Authority applicable
to the Company or any Subsidiary.
5.7. GOVERNMENTAL AUTHORIZATIONS, ETC.
No consent, approval or authorization of, or registration,
filing or declaration with, any Governmental Authority is required for the
validity of the execution, delivery or performance by the Company of this
Agreement or the Notes or
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by the Subsidiary Guarantors of their respective Subsidiary Guarantees.
5.8. LITIGATION; OBSERVANCE OF AGREEMENTS, STATUTES AND ORDERS.
(a) Except as disclosed in Schedule 5.8, there are no actions,
suits or proceedings pending or, to the knowledge of the Company, threatened
against or affecting the Company or any Subsidiary or any property of the
Company or any Subsidiary in any court or before any arbitrator of any kind or
before or by any Governmental Authority that, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under
any order, judgment, decree or ruling of any court, arbitrator or Governmental
Authority or is in violation of any applicable law, ordinance, rule or
regulation (including without limitation Environmental Laws) of any Governmental
Authority, which default or violation, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
5.9. TAXES.
The Company and its Subsidiaries have filed all tax returns
that are required to have been filed in any jurisdiction, and have paid all
taxes shown to be due and payable on such returns and all other taxes and
assessments levied upon them or their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and assessments (a) currently
payable without penalty or interest, (b) the amount of which is not individually
or in the aggregate Material or (c) the amount, applicability or validity of
which is currently being contested in good faith by appropriate proceedings and
with respect to which the Company or a Subsidiary, as the case may be, has
established adequate reserves in accordance with GAAP. The Federal income tax
liabilities of the Company and its Subsidiaries have been determined by the
Internal Revenue Service and paid for all fiscal years up to and including the
fiscal year ended December 31, 1993.
5.10. TITLE TO PROPERTY; LEASES.
The Company and its Subsidiaries have good and marketable
title to their respective real properties and good and sufficient title to their
respective other properties, including all such properties reflected in the most
recent audited balance sheet listed on Schedule 5.5 or purported to have been
acquired by the Company or any Subsidiary after said date (except as sold or
otherwise disposed of in the ordinary course of business), in each case free and
clear of Liens prohibited by this Agreement. All leases that individually or in
the aggregate are Material are
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valid and subsisting and are in full force and effect in all material respects.
5.11. LICENSES, PERMITS, ETC.
Except as disclosed in Schedule 5.11,
(a) the Company and its Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights,
proprietary software, service marks, trademarks and trade names, or
rights thereto, that are Material, without known conflict with the
rights of others, except for those conflicts that, individually or in
the aggregate, would not have a Material Adverse Effect;
(b) to the best knowledge of the Company, no product of the
Company infringes in any material respect any license, permit,
franchise, authorization, patent, copyright, proprietary software,
service xxxx, trademark, trade name or other right owned by any other
Person; and
(c) to the best knowledge of the Company, there is no Material
violation by any Person of any right of the Company or any of its
Subsidiaries with respect to any patent, copyright, proprietary
software, service xxxx, trademark, trade name or other right owned or
used by the Company or any of its Subsidiaries.
5.12. COMPLIANCE WITH ERISA.
(a) The Company and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except for such
instances of noncompliance as have not resulted in and could not reasonably be
expected to result in a Material Adverse Effect. Neither the Company nor any
ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or
the penalty or excise tax provisions of the Code relating to employee benefit
plans (as defined in Section 3 of ERISA), and no event, transaction or condition
has occurred or exists that would reasonably be expected to result in the
incurrence of any such liability by the Company or any ERISA Affiliate, or in
the imposition of any Lien on any of the rights, properties or assets of the
Company or any ERISA Affiliate, in either case pursuant to Title I or IV of
ERISA or to such penalty or excise tax provisions or to section 401(a)(29) or
412 of the Code, other than such liabilities or Liens as would not be
individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities
under each of the Plans (other than Multiemployer Plans), determined as of the
end of such Plan's most recently ended plan year on the basis of the actuarial
assumptions specified for funding purposes in such Plan's most recent actuarial
valuation report, did not exceed the aggregate current
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value of the assets of such Plan allocable to such benefit liabilities. The term
"benefit liabilities" has the meaning specified in section 4001 of ERISA and the
terms "CURRENT VALUE" and "PRESENT VALUE" have the meaning specified in section
3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred
withdrawal liabilities (and are not subject to contingent withdrawal
liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer
Plans that individually or in the aggregate are Material.
(d) The expected post retirement benefit obligation
(determined as of the last day of the Company's most recently ended fiscal year
in accordance with Financial Accounting Standards Board Statement No. 106,
without regard to liabilities attributable to continuation coverage mandated by
section 4980B of the Code) of the Company and its Subsidiaries is not Material.
(e) With respect to each employee benefit plan, if any,
disclosed by you in writing to the Company in accordance with Section 6.2(c),
neither the Company nor any "affiliate" of the Company (as defined in Section
V(c) of the QPAM Exemption) has at this time, nor has exercised at any time
during the immediately preceding year, the authority to appoint or terminate the
"QPAM" (as defined in Part V of the QPAM Exemption) disclosed by you to the
Company pursuant to Section 6.2(c) as manager of any of the assets of any such
plan or to negotiate the terms of any management agreement with such QPAM on
behalf of any such plan, and the Company is not an "affiliate" (as so defined)
of such QPAM. The Company is not a party in interest with respect to any
employee benefit plan disclosed by you in accordance with Section 6.2(b) or
6.2(e). The execution and delivery of this Agreement and the issuance and sale
of the Notes at the Closing hereunder will not involve any prohibited
transaction (as such term is defined in section 406(a) of ERISA and section
4975(c)(1)(A)-(D) of the Code), that could subject the Company or any holder of
a Note to any tax or penalty on prohibited transactions imposed under said
section 4975 of the Code or by section 502(i) of ERISA. The representation by
the Company in the preceding sentence of this Section 5.12(e) is made in
reliance upon and subject to the accuracy of your representation in Section 6.2
as to the source of the funds used to pay the purchase price of the Notes to be
purchased by you.
5.13. PRIVATE OFFERING BY THE COMPANY.
Neither the Company nor anyone acting on its behalf has
offered the Notes, the Subsidiary Guarantees or any similar securities for sale
to, or solicited any offer to buy any of the same from, or otherwise approached
or negotiated in respect thereof with, any person other than you, the Other
Purchasers and not more than 60 other Institutional Investors, each of which has
been offered the Notes at a private sale for investment. Neither
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the Company nor anyone acting on its behalf has taken, or will take, any action
that would subject the issuance or sale of the Notes or the issuance of the
Subsidiary Guarantees to the registration requirements of Section 5 of the
Securities Act.
5.14. USE OF PROCEEDS; MARGIN REGULATIONS.
The Company will apply the net proceeds of the sale of the
Notes to repay Indebtedness outstanding under the Bank Credit Agreement. No part
of the proceeds from the sale of the Notes hereunder will be used, and no part
of the proceeds of such Indebtedness being repaid was used, directly or
indirectly, for the purpose of buying or carrying any margin stock within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 221), or for the purpose of buying or carrying or trading in any
securities under such circumstances as to involve the Company in a violation of
Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220). Margin stock does not
constitute more than 5% of the value of the consolidated assets of the Company
and its Subsidiaries and the Company does not have any present intention that
margin stock will constitute more than 25% of the value of such assets. As used
in this Section, the terms "MARGIN STOCK" and "PURPOSE OF BUYING OR CARRYING"
shall have the meanings assigned to them in said Regulation U.
5.15. EXISTING INDEBTEDNESS.
Schedule 5.15 sets forth a complete and correct list of all
outstanding Indebtedness of the Company and its Subsidiaries in an unpaid
principal amount exceeding $1,000,000 as of June 30, 1998, since which date
there has been no Material change in the amounts, interest rates, sinking funds,
installment payments or maturities of the Indebtedness of the Company or its
Subsidiaries. Neither the Company nor any Subsidiary is in default, and no
waiver of default is currently in effect, in the payment of any principal or
interest on any Indebtedness of the Company or such Subsidiary, and no event or
condition exists with respect to any such Indebtedness of the Company or any
Subsidiary that would permit (or that with the giving of notice or the lapse of
time, or both, would permit) one or more Persons to cause such Indebtedness to
become due and payable before its stated maturity or before its regularly
scheduled dates of payment.
5.16. FOREIGN ASSETS CONTROL REGULATIONS, ETC.
Neither the sale of the Notes by the Company hereunder nor its
use of the proceeds thereof will violate the Trading with the Enemy Act, as
amended, or any of the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
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5.17. STATUS UNDER CERTAIN STATUTES.
Neither the Company nor any Subsidiary is subject to
regulation under the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, the Interstate Commerce Act, as
amended, or the Federal Power Act, as amended.
5.18. ENVIRONMENTAL MATTERS.
Neither the Company nor any Subsidiary has knowledge of any
claim or has received any notice of any claim, and no proceeding has been
instituted raising any claim against the Company or any of its Subsidiaries or
any of their respective real properties now or formerly owned, leased or
operated by any of them or other assets, alleging any damage to the environment
or violation of any Environmental Laws, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect. Except as
otherwise disclosed to you in writing,
(a) neither the Company nor any Subsidiary has knowledge of
any facts which would give rise to any claim, public or private, of
violation of Environmental Laws or damage to the environment emanating
from, occurring on or in any way related to real properties now or
formerly owned, leased or operated by any of them or to other assets or
their use, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has stored
any Hazardous Materials on real properties now or formerly owned,
leased or operated by any of them and has not disposed of any Hazardous
Materials in a manner contrary to any Environmental Laws in each case
in any manner that could reasonably be expected to result in a Material
Adverse Effect; and
(c) all buildings on all real properties now owned, leased or
operated by the Company or any of its Subsidiaries are in compliance
with applicable Environmental Laws, except where failure to comply
could not reasonably be expected to result in a Material Adverse
Effect.
6. REPRESENTATIONS OF THE PURCHASER.
6.1. PURCHASE OF NOTES.
You represent that you are purchasing the Notes for your own
account or for one or more separate accounts maintained by you or for the
account of one or more pension or trust funds and not with a view to the
distribution thereof, provided that the disposition of your or their property
shall at all times be within your or their control. You understand that the
Notes have
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not been registered under the Securities Act and may be resold only
if registered pursuant to the provisions of the Securities Act or if an
exemption from registration is available, except under circumstances where
neither such registration nor such an exemption is required by law, and that the
Company is not required to register the Notes.
6.2. SOURCE OF FUNDS.
You represent that at least one of the following statements is
an accurate representation as to each source of funds (a "SOURCE") to be used by
you to pay the purchase price of the Notes to be purchased by you hereunder:
(a) the Source is an "insurance company general account", as
such term is defined in Prohibited Transaction Exemption ("PTE") 95-60
(issued July 12, 1995), and there is no plan with respect to which the
aggregate amount of such general account's reserves and liabilities for
the contracts held by or on behalf of such plan and all other plans
maintained by the same employer (and affiliates thereof as defined in
section V(a)(1) of PTE 95-60) or by the same employee organization (in
each case determined in accordance with PTE 95-60) exceeds or will
exceed 10% of the total of all reserves and liabilities of such general
account (determined in accordance with PTE 95-60, exclusive of separate
account liabilities, plus any applicable surplus) as of the date of the
Closing; or
(b) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued January 29,
1990), or (ii) a bank collective investment fund, within the meaning of
the PTE 91-38 (issued July 12, 1991) and, except as you have disclosed
to the Company in writing pursuant to this paragraph (b), no employee
benefit plan or group of plans maintained by the same employer or
employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment
fund; or
(c) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that
are included in such investment fund, when combined with the assets of
all other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of Section V(c)(1) of
the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part I(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or controlled by the QPAM (applying the definition of "control"
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in section V(e) of the QPAM Exemption) owns a 5% or more interest in
the Company and (i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such investment
fund have been disclosed to the Company in writing pursuant to this
paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Company in
writing pursuant to this paragraph (e); or
(f) the Source does not include assets of any employee benefit
plan, other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "EMPLOYEE BENEFIT PLAN", "GOVERNMENTAL
PLAN" and "SEPARATE ACCOUNT" shall have the respective meanings assigned to such
terms in section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1. FINANCIAL AND BUSINESS INFORMATION.
The Company shall deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end of
each quarterly fiscal period in each fiscal year of the Company (other
than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Restricted Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Restricted Subsidiaries, for such quarter and (in the case of
the second and third quarters) for the portion of the fiscal
year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial
position of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time
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period specified above of copies of the Company's Quarterly Report on
Form 10-Q prepared in compliance with the requirements therefor and
filed with the Securities and Exchange Commission shall be deemed to
satisfy the requirements of this Section 7.1(a), unless the financial
statements included in said Form 10-Q include the accounts of any
Unrestricted Subsidiary;
(b) Annual Statements -- within 105 days after the end of each
fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Restricted Subsidiaries as at the end of such year, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its
Restricted Subsidiaries for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by
(A) an opinion thereon of independent public
accountants of recognized national standing, which opinion
shall state that such financial statements present fairly, in
all material respects, the financial position of the companies
being reported upon and their results of operations and cash
flows and have been prepared in conformity with GAAP, and that
the examination of such accountants in connection with such
financial statements has been made in accordance with
generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the
circumstances, and
(B) a certificate of such accountants stating that
they have reviewed this Agreement and stating further whether,
in making their audit, they have become aware of any condition
or event that then constitutes a Default or an Event of
Default, and, if they are aware that any such condition or
event then exists, specifying the nature and period of the
existence thereof (it being understood that such accountants
shall not be liable, directly or indirectly, for any failure
to obtain knowledge of any Default or Event of Default unless
such accountants should have obtained knowledge thereof in
making an audit in accordance with generally accepted auditing
standards or did not make such an audit),
provided that the delivery within the time period specified above of
the Company's Annual Report on Form 10-K for such fiscal year (together
with the Company's annual report to
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shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) prepared in accordance with the requirements therefor and
filed with the Securities and Exchange Commission, together with the
accountants' certificate described in clause (B) above, shall be deemed
to satisfy the requirements of this Section 7.1(b), unless the
financial statements included in said Form 10-K include the accounts of
any Unrestricted Subsidiary;
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, report, notice or
proxy statement sent by the Company or any Restricted Subsidiary
generally to its shareholders or to its creditors (other than the
Company or another Subsidiary), and (ii) each regular or periodic
report, each registration statement (without exhibits except as
expressly requested by such holder), and each prospectus and all
amendments thereto filed by the Company or any Subsidiary with the
Securities and Exchange Commission;
(d) Notice of Default or Event of Default -- promptly, and in
any event within five days after a Responsible Officer becoming aware
of the existence of any Default or Event of Default, a written notice
specifying the nature and period of existence thereof and what action
the Company is taking or proposes to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five
days after a Responsible Officer becoming aware of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that the Company or an ERISA Affiliate proposes to take
with respect thereto:
(i) with respect to any Plan, any reportable event,
as defined in section 4043(b) of ERISA and the regulations
thereunder, for which notice thereof has not been waived
pursuant to such regulations as in effect on the date hereof;
or
(ii) the taking by the PBGC of steps to institute, or
the threatening by the PBGC of the institution of, proceedings
under section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could
result in the incurrence of any liability by the Company or
any ERISA Affiliate pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to
employee benefit plans, or in the imposition of any Lien on
any of the rights, properties
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or assets of the Company or any ERISA Affiliate pursuant to
Title I or IV of ERISA or such penalty or excise tax
provisions, if such liability or Lien, taken together with any
other such liabilities or Liens then existing, could
reasonably be expected to have a Material Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and in
any event within 30 days of receipt thereof, copies of any notice to
the Company or any Subsidiary from any Federal or state Governmental
Authority relating to any order, ruling, statute or other law or
regulation that could reasonably be expected to have a Material Adverse
Effect; and
(g) Requested Information -- with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition, assets or properties of the Company or
any of its Subsidiaries or relating to the ability of the Company to
perform its obligations hereunder and under the Notes or relating to
the ability of a Subsidiary Guarantor to perform its obligations under
its respective Subsidiary Guarantee, in each case as from time to time
may be reasonably requested by any such holder of Notes.
7.2. OFFICER'S CERTIFICATE.
Each set of financial statements delivered to a holder of
Notes pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a
certificate of a Senior Financial Officer setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Sections 10.1 through 10.8,
inclusive, during the quarterly or annual period covered by the
statements then being furnished (including with respect to each such
Section, where applicable, the calculations of the maximum or minimum
amount, ratio or percentage, as the case may be, permissible under the
terms of such Sections, and the calculation of the amount, ratio or
percentage then in existence); and
(b) Default -- a statement that such Senior Financial Officer
has reviewed the relevant terms hereof and has made, or caused to be
made, under his or her supervision, a review of the transactions and
conditions of the Company and its Subsidiaries from the beginning of
the quarterly or annual period covered by the statements then being
furnished to the date of the certificate and that such review shall not
have disclosed the existence during such period of any condition or
event that constitutes a Default or an Event of Default
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or, if any such condition or event existed or exists (including,
without limitation, any such event or condition resulting from the
failure of the Company or any Subsidiary to comply with any
Environmental Law), specifying the nature and period of existence
thereof and what action the Company shall have taken or proposes to
take with respect thereto.
7.3. INSPECTION.
The Company shall permit the representatives of each holder of
Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior notice
to the Company, to visit the principal executive office of the Company,
to discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company's officers, and (with the consent of the
Company, which consent will not be unreasonably withheld) its
independent public accountants, and (with the consent of the Company,
which consent will not be unreasonably withheld) to visit the other
offices and properties of the Company and each Subsidiary, all at such
reasonable times and as often as may be reasonably requested in
writing; and
(b) Default -- if a Default or Event of Default then exists,
at the expense of the Company, to visit and inspect any of the offices
or properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers, employees and
independent public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs, finances and
accounts of the Company and its Subsidiaries), all at such times and as
often as may be requested.
8. PREPAYMENT OF THE NOTES.
In addition to the payment of the entire unpaid principal
amount of the Notes at the final maturity thereof, the Company may make optional
prepayments in respect of the Notes as hereinafter provided.
8.1. OPTIONAL PREPAYMENTS WITH MAKE-WHOLE AMOUNT.
The Company may, at its option and upon notice as provided
below, prepay at any time all, or from time to time any part of, the Notes (in a
minimum amount of $5,000,000 and otherwise in multiples of $100,000) at the
principal amount so prepaid, together with interest accrued thereon to the date
of such prepayment, plus the Make-Whole Amount determined for the
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prepayment date with respect to such principal amount. The Company will give
each holder of Notes written notice of each optional prepayment under this
Section 8.1 not less than 30 days and not more than 60 days prior to the date
fixed for such prepayment. Each such notice shall specify the date fixed for
such prepayment (which shall be a Business Day), the aggregate principal amount
of the Notes to be prepaid on such date, the principal amount of Notes held by
such holder to be prepaid (determined in accordance with Section 8.2) and the
interest to be paid on the prepayment date with respect to such principal amount
being prepaid.
Each such notice of prepayment shall be accompanied by a
certificate of a Senior Financial Officer as to the estimated Make-Whole Amount
due in connection with such prepayment (calculated as if the date of such notice
were the date of the prepayment), setting forth the details of such computation.
Two Business Days prior to such prepayment of Notes, the Company shall deliver
to each holder of Notes a certificate of a Senior Financial Officer specifying
the calculation of such Make-Whole Amount as of the specified prepayment date.
8.2. ALLOCATION OF PARTIAL PREPAYMENTS.
In the case of a partial prepayment of the Notes pursuant to
Section 8.1, the principal amount of the Notes to be prepaid shall be allocated
among all of the Notes at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof.
8.3. MATURITY; SURRENDER, ETC.
In the case of each prepayment of Notes pursuant to this
Section 8, the principal amount of each Note to be prepaid shall mature and
become due and payable on the date fixed for such prepayment, together with
interest on such principal amount accrued to such date and the applicable
Make-Whole Amount, if any. From and after such date, unless the Company shall
fail to pay such principal amount when so due and payable, together with the
interest and Make-Whole Amount, if any, as aforesaid, interest on such principal
amount shall cease to accrue. Any Note paid or prepaid in full shall be
surrendered to the Company and canceled and shall not be reissued, and no Note
shall be issued in lieu of any prepaid principal amount of any Note.
8.4. PURCHASE OF NOTES.
The Company will not and will not permit any Affiliate to
purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of
the outstanding Notes except upon the payment or prepayment of the Notes in
accordance with the terms of this Agreement and the Notes.
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8.5. MAKE-WHOLE AMOUNT.
The term "MAKE-WHOLE AMOUNT" means, with respect to any Note,
an amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Note over the
amount of such Called Principal, provided that the Make-Whole Amount may in no
event be less than zero. For the purposes of determining the Make-Whole Amount,
the following terms have the following meanings:
"CALLED PRINCIPAL" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 8.1 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
"DISCOUNTED VALUE" means, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
"REINVESTMENT YIELD" means, with respect to the Called
Principal of any Note, .50% (50 basis points) over the yield to
maturity implied by (i) the yields reported, as of 10:00 A.M. (New York
City time) on the second Business Day preceding the Settlement Date
with respect to such Called Principal, on (x) the Bloomberg Financial
Markets News screen PX1 or the equivalent screen provided by Bloomberg
Financial Markets News, or (y) if such on-line market data is not at
the time provided by Bloomberg Financial Markets News, on the display
designated as "Page 500" on the Dow Xxxxx Markets service (or such
other display as may replace Page 500 on the Dow Xxxxx Markets
service), in any case for actively traded U.S. Treasury securities
having a maturity equal to the remaining life of such Called Principal
as of such Settlement Date, or (ii) if such yields are not reported as
of such time or the yields reported as of such time are not
ascertainable (including by way of interpolation), the Treasury
Constant Maturity Series Yields reported, for the latest day for which
such yields have been so reported as of the second Business Day
preceding the Settlement Date with respect to such Called Principal, in
Federal Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities
having a constant maturity equal to the remaining life of such Called
Principal as of such Settlement Date. Such implied yield will be
determined, if necessary, by (a) converting U.S. Treasury xxxx
quotations to bond-equivalent yields in accordance with accepted
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financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with a maturity closest to and
greater than the remaining life and (2) the actively traded U.S.
Treasury security with a maturity closest to and less than the
remaining life.
"REMAINING SCHEDULED PAYMENTS" means, with respect to the
Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are due to be
made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.1 or 12.1.
"SETTLEMENT DATE" means, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.1 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
9.1. COMPLIANCE WITH LAW.
The Company will and will cause each of its Subsidiaries to
comply with all laws, ordinances or governmental rules or regulations to which
each of them is subject, including without limitation Environmental Laws, and
will obtain and maintain in effect all licenses, certificates, permits,
franchises and other governmental authorizations necessary to the ownership of
their respective properties or to the conduct of their respective businesses, in
each case to the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits, franchises and other
governmental authorizations would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
9.2. INSURANCE.
The Company will and will cause each of its Subsidiaries to
maintain, with financially sound and reputable insurers, insurance with respect
to their respective properties and businesses against such casualties and
contingencies, of such types, on such terms and in such amounts (including
deductibles,
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co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
9.3. MAINTENANCE OF PROPERTIES.
The Company will and will cause each of its Subsidiaries to
maintain and keep, or cause to be maintained and kept, their respective
properties in good repair, working order and condition (other than ordinary wear
and tear), so that the business carried on in connection therewith may properly
conducted at all times, provided that this Section shall not prevent the Company
or any Subsidiary from discontinuing the operation and the maintenance of any of
its properties if such discontinuance is desirable in the conduct of its
business and the Company has concluded that such discontinuance would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.4. PAYMENT OF TAXES AND CLAIMS.
The Company will and will cause each of its Subsidiaries to
file all income tax or similar tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be due and payable on
such returns and all other taxes, assessments, governmental charges, or levies
payable by any of them, to the extent such taxes and assessments have become due
and payable and before they have become delinquent, provided that neither the
Company nor any Subsidiary need pay any such tax or assessment if (i) the
amount, applicability or validity thereof is contested by the Company or such
Subsidiary on a timely basis in good faith and in appropriate proceedings, and
the Company or a Subsidiary has established adequate reserves therefor in
accordance with GAAP on the books of the Company or such Subsidiary or (ii) the
nonpayment of all such taxes and assessments in the aggregate would not
reasonably be expected to have a materially adverse effect on the business,
operations, affairs, financial condition, properties or assets of the Company
and its Subsidiaries taken as a whole.
9.5. CORPORATE EXISTENCE, ETC.
The Company will at all times preserve and keep in full force
and effect its corporate existence. Subject to Section 10.5, the Company will at
all times preserve and keep in full force and effect the corporate existence of
each of its Subsidiaries (unless merged into the Company or a Subsidiary) and
all rights and franchises of the Company and its Subsidiaries unless, in the
good faith judgment of the Company, the termination of or failure to preserve
and keep in full force and effect such corporate existence, right or franchise
would not, individually or in the aggregate, have a Material Adverse Effect.
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9.6. ADDITIONAL SUBSIDIARY GUARANTEES; RELEASE OF SUBSIDIARY GUARANTEES.
(a) So long as the Bank Credit Agreement remains in effect the
Company will cause each Subsidiary that becomes a borrower or a guarantor
thereunder or in respect thereof after the date of the Closing (if such
Subsidiary is not at the time a Subsidiary Guarantor) to become a Subsidiary
Guarantor by executing and delivering a Subsidiary Guarantee, prior to or
concurrently with so becoming a borrower or a guarantor; and promptly and in any
event within ten Business Days thereafter the Company will furnish each holder
of the Notes with a counterpart of such executed Subsidiary Guarantee, together
with an opinion of Snow Xxxxxx Xxxxxx P.C. or other counsel reasonably
satisfactory to the Required Holders (which opinion shall be reasonably
satisfactory to the Required Holders and may be subject to customary exceptions,
qualifications and limitations under the circumstances) to the effect that such
Subsidiary Guarantee has been duly authorized, executed and delivered by such
Subsidiary and is valid, binding and enforceable in accordance with its terms.
(b) The Company will cause each Subsidiary Guarantee to remain
in full force and effect at all times after the execution and delivery thereof,
provided that any Subsidiary the Voting Stock of which is being disposed of as
an entirety shall, at the Company's request, be discharged from all of its
obligations and liabilities under its Subsidiary Guarantee by the Required
Holders entering into a release in form and substance reasonably satisfactory to
the Required Holders, and you and each other holder of a Note, by acceptance of
such Note, agree to enter into such a satisfactory release promptly upon
request, except that this proviso shall not apply (i) if a Default or Event of
Default has occurred and is continuing, (ii) to a Subsidiary if any amount is
then due and payable under its Subsidiary Guarantee or (iii) to a Subsidiary
which at the time is a guarantor of any other Indebtedness of the Company or
another Subsidiary party to a Subsidiary Guarantee that is not also concurrently
being released.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
10.1. TOTAL INDEBTEDNESS; RESTRICTED SUBSIDIARY INDEBTEDNESS.
(a) The Company will not and will not permit any Restricted
Subsidiary to create, assume, incur, guarantee or otherwise become liable in
respect of any Indebtedness except:
(i) Additional Borrowing Facility Indebtedness, provided that
at the time such Additional Borrowing Facility Indebtedness is incurred
the aggregate unpaid principal
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amount of Borrowing Facility Indebtedness does not exceed the Maximum
Amount as then in effect,
(ii) Indebtedness owing by a Restricted Subsidiary to the
Company or to a Wholly-Owned Restricted Subsidiary, and
(iii) other Indebtedness, provided that immediately after
giving effect thereto and to the application of the proceeds of such
Indebtedness the pro forma Total Indebtedness to EBITDA Ratio does not
exceed 3.50 to 1.
(b) The Company will not permit any Restricted Subsidiary to
create, assume, incur, guarantee or otherwise become liable in respect of any
Indebtedness except
(i) Indebtedness secured by Liens permitted by Section 10.2(b)
or (c),
(ii) in the case of any Person that after the date of the
Closing becomes a Restricted Subsidiary or is consolidated with or
merged with or into a Restricted Subsidiary or sells, leases or
otherwise disposes of all of its property to a Restricted Subsidiary,
Indebtedness outstanding at the time such Person becomes a Restricted
Subsidiary or is so consolidated or merged or effects such sale, lease
or other disposition of property (and not created in anticipation
thereof),
(iii) Indebtedness evidenced by the Subsidiary Guarantees and
other guarantees by the Subsidiary Guarantors in respect of unsecured
Indebtedness of the Company (subject to the requirements of Section
9.6),
(iv) Indebtedness owing to the Company or a Wholly-Owned
Restricted Subsidiary, and
(v) other Indebtedness, provided that immediately after
giving effect to such other Indebtedness Priority Debt does not exceed
15% of Consolidated Capitalization and Adjusted Priority Debt does not
exceed 5% of Consolidated Capitalization.
As used in this Agreement the term "PRIORITY DEBT" means, at any date, the sum
(without duplication) of (A) the aggregate unpaid principal amount of
Indebtedness (including Capitalized Lease Obligations) of the Company secured by
Liens permitted by Section 10.2(e) plus (B) the aggregate unpaid principal
amount of Indebtedness of all Restricted Subsidiaries (other than Indebtedness
permitted by subclause (i), (ii), (iii) or (iv) of clause (b) above) plus (C)
the aggregate Attributable Debt in connection with all sale and leaseback
transactions of the Company and its Subsidiaries entered into after the date of
the Closing in accordance with the provisions of Section 10.3; and
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the term "ADJUSTED PRIORITY DEBT" means, at any date, the aggregate amount of
Priority Debt attributable to the Company and its Domestic Restricted
Subsidiaries.
For purposes of this Section 10.1: a Restricted Subsidiary
shall be deemed to have incurred Indebtedness in respect of any obligation
previously owed to the Company or to a Wholly-Owned Restricted Subsidiary on the
date the obligee ceases for any reason to be the Company or a Wholly-Owned
Restricted Subsidiary; a Person that hereafter becomes a Restricted Subsidiary
shall be deemed at that time to have incurred all of its outstanding
Indebtedness; any Unrestricted Subsidiary or other Person that hereafter becomes
a Restricted Subsidiary shall be deemed at that time to have incurred all of its
outstanding Indebtedness; and the Company shall be deemed to have incurred
Indebtedness in respect of a Guaranty of the type described in clause (b)(ii) of
the definition of "Guaranty" in Schedule B, with respect to Indebtedness of any
other Person, at such time as the obligations of the Company in respect of such
Guaranty are required to be shown as a liability on the balance sheet of the
Company prepared in accordance with GAAP.
10.2. LIENS.
The Company will not and will not permit any Restricted
Subsidiary to create, assume, incur or suffer to exist any Lien upon or with
respect to any property or assets, whether now owned or hereafter acquired,
securing any Indebtedness without making effective provision (pursuant to
documentation in form and substance reasonably satisfactory to the Required
Holders) whereby the Notes shall be secured by such Lien equally and ratably
with or prior to any and all Indebtedness and other obligations to be secured
thereby, provided that nothing in this Section 10.2 shall prohibit
(a) Liens in respect of property of the Company or a
Restricted Subsidiary existing on the date of the Closing and described
in Schedule 5.15, and any extension, renewal or replacement of any such
Lien (including successive extensions, renewals and replacements),
provided that the principal amount of Indebtedness (or the maximum
commitment therefor) secured by any such Lien is not increased and such
Lien does not extend to or cover any property other than the property
covered by such Lien on the date of the Closing;
(b) Liens in respect of property acquired or constructed by
the Company or a Restricted Subsidiary after the date of the Closing,
which are created at the time of or within 180 days after acquisition
or completion of construction of such property to secure Indebtedness
assumed or incurred to finance all or any part of the purchase price or
cost of construction of such property, provided that in any such case
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(i) no such Lien shall extend to or cover any other
property of the Company or such Restricted Subsidiary, as the
case may be, and
(ii) the aggregate principal amount of Indebtedness
secured by all such Liens in respect of any such property
shall not exceed the cost of such property and any
improvements then being financed;
(c) Liens in respect of property acquired by the Company or a
Restricted Subsidiary after the date of the Closing, existing on such
property at the time of acquisition thereof (and not created in
anticipation thereof), or in the case of any Person that after the date
of the Closing becomes a Restricted Subsidiary or is consolidated with
or merged with or into the Company or a Restricted Subsidiary or sells,
leases or otherwise disposes of all or substantially all of its
property to the Company or a Restricted Subsidiary, Liens existing at
the time such Person becomes a Restricted Subsidiary or is so
consolidated or merged or effects such sale, lease or other disposition
of property (and not created in anticipation thereof), provided that in
any such case no such Lien shall extend to or cover any other property
of the Company or such Restricted Subsidiary, as the case may be;
(d) Liens securing Indebtedness owed by a Restricted
Subsidiary to the Company or to a Wholly-Owned Restricted Subsidiary;
and
(e) Liens which would otherwise not be permitted by Section
10.2(a), (b), (c) or (d), securing additional Indebtedness of the
Company or a Restricted Subsidiary, provided that after giving effect
thereto Priority Debt does not exceed 15% of Consolidated
Capitalization and Adjusted Priority Debt does not exceed 5% of
Consolidated Capitalization.
For purposes of this Section 10.2 any Lien existing in respect of property at
the time such property is acquired or in respect of property of a Person at the
time such Person is acquired, consolidated or merged with or into the Company or
a Restricted Subsidiary shall be deemed to have been created at that time.
10.3. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any Restricted
Subsidiary to sell, lease, transfer or otherwise dispose of (collectively, a
"TRANSFER") any asset on terms whereby the asset or a substantially similar
asset is or may be leased or reacquired by the Company or any Restricted
Subsidiary over a period in excess of three years, unless either
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(a) after giving effect to such transaction and the incurrence
of Attributable Debt in respect thereof Priority Debt does not exceed
15% of Consolidated Capitalization and Adjusted Priority Debt does not
exceed 5% of Consolidated Capitalization, or
(b) the net proceeds realized from the transfer are applied
within 180 days after the receipt thereof to reinvest in property or
assets for use in the business of the Company and its Restricted
Subsidiaries or to repay unsubordinated Funded Indebtedness of the
Company or a Restricted Subsidiary.
10.4. MAINTENANCE OF CONSOLIDATED NET WORTH.
The Company will not at any time permit Consolidated Net Worth
to be less than the sum of (a) $190,000,000 plus (b) 35% of Consolidated Net
Income for the period of three consecutive fiscal quarters ending December 31,
1998 (if Consolidated Net Income for such period is positive) plus (c) 35% of
Consolidated Net Income for each fiscal year thereafter for which Consolidated
Net Income is positive.
10.5. MERGER, CONSOLIDATION, ETC.
The Company will not and will not permit any Restricted
Subsidiary to consolidate with or merge with any other corporation or convey,
transfer or lease all or substantially all of its assets in a single transaction
or series of transactions to any Person except:
(a) a Restricted Subsidiary may consolidate with or merge with
any other corporation or convey or transfer all or substantially all of
its assets to
(i) the Company (provided that the Company shall be
the continuing or surviving corporation) or a then existing
Wholly-Owned Restricted Subsidiary, or
(ii) any other Person, provided that
(A) if such Restricted Subsidiary is a
Subsidiary Guarantor, the continuing, surviving or
acquiring corporation (if not such Subsidiary) shall
have (1) executed and delivered to each holder of a
Note its assumption of the due and punctual
performance and observance of all obligations of such
Restricted Subsidiary under its Subsidiary Guarantee
and (2) caused to be delivered to each holder of a
Note an opinion of counsel reasonably satisfactory to
the Required Holders to the effect that all
agreements or instruments effecting such assumption
are
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enforceable in accordance with their terms and comply
with the terms hereof, and
(B) immediately after giving effect to such
transaction, no Default or Event of Default shall
have occurred and be continuing; and
(b) the Company may consolidate with or merge with any other
corporation or convey or transfer all or substantially all of its
assets to a corporation organized and existing under the laws of the
United States or any State thereof, provided that
(i) the continuing, surviving or acquiring
corporation (if not the Company) shall have (A) executed and
delivered to each holder of a Note its assumption of the due
and punctual performance and observance of all obligations of
the Company under this Agreement, the Other Agreements and the
Notes and (B) caused to be delivered to each holder of a Note
an opinion of counsel reasonably satisfactory to the Required
Holders to the effect that all agreements or instruments
effecting such assumption are enforceable in accordance with
their terms and comply with the terms hereof, and
(ii) immediately after giving effect to such
transaction, (A) no Default or Event of Default shall have
occurred and be continuing and (B) the Company (or such
continuing, surviving or acquiring corporation if not the
Company) would be permitted to incur at least $1 of additional
Indebtedness under Section 10.1(a).
No such conveyance, transfer or lease of substantially all of the assets of the
Company or a Subsidiary Guarantor shall have the effect of releasing the Company
or such Subsidiary Guarantor or any successor corporation that shall theretofore
have become such in the manner prescribed in this Section 10.5 from its
liability under this Agreement or the Notes or its Subsidiary Guarantee, as the
case may be.
10.6. LINES OF BUSINESS.
The Company will not and will not permit any Restricted
Subsidiary to engage to any substantial extent in any business other than the
businesses in which the Company and its Restricted Subsidiaries are engaged on
the date of the Closing (as described in the Memorandum) and businesses
reasonably related thereto or in furtherance thereof.
10.7. TRANSACTIONS WITH AFFILIATES.
The Company will not and will not permit any Restricted
Subsidiary to enter into directly or indirectly any Material
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transaction or Material group of related transactions (including without
limitation the purchase, lease, sale or exchange of properties of any kind or
the rendering of any service) with any Affiliate (other than the Company or
another Restricted Subsidiary), except in the ordinary course and pursuant to
the reasonable requirements of the Company's or such Restricted Subsidiary's
business and upon fair and reasonable terms no less favorable to the Company or
such Restricted Subsidiary than would be obtainable in a comparable arm's-length
transaction with a Person not an Affiliate.
10.8. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
(a) Subject to paragraph (c) below, the Company will not
designate any Subsidiary as an Unrestricted Subsidiary after the date of the
Closing unless such Subsidiary was not previously (directly or indirectly) an
Unrestricted Subsidiary, except that any Unrestricted Subsidiary that is
designated as a Restricted Subsidiary after the date of the Closing pursuant to
paragraph (b) below may subsequently be redesignated as an Unrestricted
Subsidiary so long as such Subsidiary is not thereafter (directly or indirectly)
redesignated as a Restricted Subsidiary for at least five years after such
redesignation as an Unrestricted Subsidiary. After the expiration of such
five-year period before the redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary, the foregoing limitations as to designations and
redesignations shall apply with respect to such Subsidiary during successive
five-year periods.
(b) Subject to paragraph (c) below, the Company will not
designate any Subsidiary as a Restricted Subsidiary after the date of the
Closing unless such Subsidiary was not previously (directly or indirectly) a
Restricted Subsidiary, except that any Restricted Subsidiary that is designated
as an Unrestricted Subsidiary after the date of the Closing pursuant to
paragraph (a) above may subsequently be redesignated as a Restricted Subsidiary
so long as such Subsidiary is not thereafter (directly or indirectly)
redesignated as an Unrestricted Subsidiary for at least five years after such
redesignation as a Restricted Subsidiary. After the expiration of such five-year
period before the redesignation of a Restricted Subsidiary as an Unrestricted
Subsidiary, the foregoing limitations as to designations and redesignations
shall apply with respect to such Subsidiary during successive five-year periods.
(c) The Company will not designate any Restricted Subsidiary
as an Unrestricted Subsidiary or any Person as a Restricted Subsidiary unless
immediately after giving pro forma effect to such designation, (i) no Default or
Event of Default shall have occurred and be continuing and (ii) the Company
would be permitted to incur at least $1 of additional Indebtedness under Section
10.1(a).
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(d) Forthwith and in any event within ten Business Days after
a designation pursuant to paragraph (a) or (b) above, the Company will furnish
each holder of the Notes with a certificate of a Senior Financial Officer
specifying the effective date of such designation and setting forth calculations
in reasonable detail demonstrating compliance with the conditions to such
designation set forth in paragraph (c) above.
11. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" shall exist if any of the following
conditions or events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or
Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any
Note for more than five Business Days after the same becomes due and
payable; or
(c) the Company defaults in the performance of or compliance
with any term contained in Section 7.1(d) or Sections 10.1 to 10.5,
inclusive, or Section 10.8; or
(d) the Company defaults in the performance of or compliance
with any term contained herein (other than those referred to in
paragraphs (a), (b) and (c) of this Section 11) and such default is not
remedied within 30 days after a Responsible Officer obtains knowledge
of such default; or
(e) any representation or warranty made in writing by or on
behalf of the Company or any Subsidiary or by any officer of the
Company or any Subsidiary in this Agreement or a Subsidiary Guarantee
or in any writing furnished in connection with the transactions
contemplated hereby proves to have been false or incorrect in any
material respect on the date as of which made; or
(f) (i) the Company or any Restricted Subsidiary is in default
(as principal or as guarantor or other surety) in the payment of any
principal of or premium or make-whole amount or interest on any
Indebtedness (other than the Notes) that is outstanding in an aggregate
principal amount of at least $5,000,000 beyond any period of grace
provided with respect thereto, or (ii) the Company or any Restricted
Subsidiary is in default in the performance of or compliance with any
term of any evidence of any Indebtedness outstanding in an aggregate
principal amount of at least $5,000,000 or of any mortgage, indenture
or other agreement relating thereto or any other condition exists, and
as a consequence of such default or condition such Indebtedness
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has become, or has been declared, due and payable before its stated
maturity or before its regularly scheduled dates of payment, or (iii)
as a consequence of the occurrence or continuation of any event or
condition (other than the passage of time or the right of the holder of
Indebtedness outstanding in an aggregate principal amount of at least
$5,000,000 to convert such Indebtedness into equity interests or a sale
of assets or other transaction that is permitted if made in connection
with a repayment of Indebtedness), the Company or any Restricted
Subsidiary has become obligated to purchase or repay such Indebtedness
before its regular maturity or before its regularly scheduled dates of
payment; or
(g) the Company or any Significant Subsidiary (i) is generally
not paying, or admits in writing its inability to pay, its debts as
they become due, (ii) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to
take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an
assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any substantial
part of its property, (v) is adjudicated as insolvent or to be
liquidated, or (vi) takes corporate action for the purpose of any of
the foregoing; or
(h) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the Company
or any Significant Subsidiary, a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, or constituting an order for relief
or approving a petition for relief or reorganization or any other
petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of the Company or any such
Subsidiary, or any such petition shall be filed against the Company or
any such Subsidiary and such petition shall not be dismissed within 60
days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of $5,000,000 are rendered against one or more of
the Company and its Restricted Subsidiaries which judgments are not,
within 60 days after entry thereof, bonded, paid, discharged or stayed
pending appeal, or are not discharged within 60 days after the
expiration of such stay; or
(j) if (i) any Significant Subsidiary (or any Person at its
authorized direction or on its behalf) shall assert
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in writing that the Subsidiary Guarantee of such Significant Subsidiary
is unenforceable in any material respect or the Subsidiary Guarantee of
any such Significant Subsidiary shall cease to be in full force and
effect as an enforceable instrument, or (ii) any other Subsidiary
Guarantee shall cease to be in full force and effect as an enforceable
instrument (other than solely by reason of an event described in
paragraph (g) or (h) above) or any other event described in clause (i)
above shall occur both with respect to any such other Subsidiary
Guarantee and with respect to the obligations of the respective
Subsidiary Guarantor under the Bank Credit Agreement; or
(k) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is
sought or granted under section 412 of the Code, (ii) a notice of
intent to terminate any Plan shall have been or is reasonably expected
to be filed with the PBGC or the PBGC shall have instituted proceedings
under ERISA section 4042 to terminate or appoint a trustee to
administer any Plan or the PBGC shall have notified the Company or any
ERISA Affiliate that a Plan may become a subject of any such
proceedings, (iii) the aggregate "amount of unfunded benefit
liabilities" (within the meaning of section 4001(a)(18) of ERISA) under
all Plans, determined in accordance with Title IV of ERISA, shall
exceed $1,000,000, (iv) the Company or any ERISA Affiliate shall have
incurred or is reasonably expected to incur any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the
Code relating to employee benefit plans, (v) the Company or any ERISA
Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or
any Subsidiary establishes or amends any employee welfare benefit plan
that provides post-employment welfare benefits in a manner that would
increase the liability of the Company or any Subsidiary thereunder; and
any such event or events described in clauses (i) through (vi) above,
either individually or together with any other such event or events,
would reasonably be expected to have a Material Adverse Effect.
As used in Section 11(k), the terms "EMPLOYEE BENEFIT PLAN" and "EMPLOYEE
WELFARE BENEFIT PLAN" shall have the respective meanings assigned to such terms
in section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. ACCELERATION.
(a) If an Event of Default with respect to the Company
described in paragraph (g) or (h) of Section 11 has occurred, all the Notes then
outstanding shall automatically become immediately due and payable.
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(b) If any other Event of Default has occurred and is
continuing, the Required Holders may at any time at its or their option, by
notice or notices to the Company, declare all the Notes at the time outstanding
to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b)
of Section 11 has occurred and is continuing, any holder or holders of Notes at
the time outstanding affected by such Event of Default may at any time, at its
or their option, by notice or notices to the Company, declare all the Notes held
by it or them to be immediately due and payable.
Upon any Note becoming due and payable under this Section
12.1, whether automatically or by declaration, such Note will forthwith mature
and the entire unpaid principal amount of such Note, plus (x) all accrued and
unpaid interest thereon and (y) the Make-Whole Amount determined in respect of
such principal amount (to the full extent permitted by applicable law), shall
all be immediately due and payable, in each and every case without presentment,
demand, protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided) and that the provision for payment of a
Make-Whole Amount by the Company in the event that the Notes are prepaid or are
accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
12.2. OTHER REMEDIES.
If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or have been
declared immediately due and payable under Section 12.1, the holder of any Note
at the time outstanding may proceed to protect and enforce the rights of such
holder by an action at law, suit in equity or other appropriate proceeding,
whether for the specific performance of any agreement contained herein or in any
Note, or for an injunction against a violation of any of the terms hereof or
thereof, or in aid of the exercise of any power granted hereby or thereby or by
law or otherwise.
12.3. RESCISSION.
At any time after any Notes have been declared due and payable
pursuant to paragraph (b) or (c) of Section 12.1, the Required Holders, by
written notice to the Company, may rescind and annul any such declaration and
its consequences if (a) the Company has paid all overdue interest on the Notes,
all principal of and Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any
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overdue interest in respect of the Notes, at the Default Rate, (b) all Events of
Default and Defaults, other than the non-payment of amounts that have become due
solely by reason of such declaration, have been cured or have been waived
pursuant to Section 17, and (c) no judgment or decree has been entered for the
payment of any monies due pursuant hereto or to the Notes. No rescission and
annulment under this Section 12.3 will extend to or affect any subsequent Event
of Default or Default or impair any right consequent thereon.
12.4. NO WAIVERS OR ELECTION OF REMEDIES, EXPENSES, ETC.
No course of dealing and no delay on the part of any holder of
any Note in exercising any right, power or remedy shall operate as a waiver
thereof or otherwise prejudice such holder's rights, powers or remedies. No
right, power or remedy conferred by this Agreement or by any Note upon any
holder thereof shall be exclusive of any other right, power or remedy referred
to herein or therein or now or hereafter available at law, in equity, by statute
or otherwise. Without limiting the obligations of the Company under Section 15,
the Company will pay to the holder of each Note on demand such further amount as
shall be sufficient to cover all costs and expenses of such holder incurred in
any enforcement or collection under this Section 12, including without
limitation reasonable attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1. REGISTRATION OF NOTES.
The Company shall keep at its principal executive office a
register for the registration and registration of transfers of Notes. The name
and address of each holder of one or more Notes, each transfer thereof and the
name and address of each transferee of one or more Notes shall be registered in
such register. Prior to due presentment for registration of transfer, the Person
in whose name any Note shall be registered shall be deemed and treated as the
owner and holder thereof for all purposes hereof, and the Company shall not be
affected by any notice or knowledge to the contrary. The Company shall give to
any holder of a Note that is an Institutional Investor promptly upon request
therefor, a complete and correct copy of the names and addresses of all
registered holders of Notes.
13.2. TRANSFER AND EXCHANGE OF NOTES.
Upon surrender of any Note at the principal executive office
of the Company for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder of such
Note or his attorney duly authorized in writing and accompanied by the address
for notices of each transferee of such Note or part
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thereof), within five Business Days thereafter the Company shall execute and
deliver, at the Company's expense (except as provided below), one or more new
Notes (as requested by the holder thereof) in exchange therefor, in an aggregate
principal amount equal to the unpaid principal amount of the surrendered Note.
Each such new Note shall be payable to such Person as such holder may request.
Each such new Note shall be dated and bear interest from the date to which
interest shall have been paid on the surrendered Note or dated the date of the
surrendered Note if no interest shall have been paid thereon. The Company may
require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $500,000, provided that if necessary
to enable the registration of transfer by a holder of its entire holding of
Notes, one Note may be in a denomination of less than $500,000. Any transferee,
by its acceptance of a Note registered in its name (or the name of its nominee),
shall be deemed to have made the representation set forth in Section 6.2 and
shall also be deemed to have agreed to provide customary assurances as to the
matters referred to in Section 6.1.
13.3. REPLACEMENT OF NOTES.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Note (which evidence shall be, in the case of an Institutional
Investor, notice from such Institutional Investor of such ownership and such
loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note
is, or is a nominee for, an original Purchaser or any other
Institutional Investor, such Person's own unsecured agreement of
indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
within five Business Days thereafter the Company at its own expense shall
execute and deliver, in lieu thereof, a new Note , dated and bearing interest
from the date to which interest shall have been paid on such lost, stolen,
destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or
mutilated Note if no interest shall have been paid thereon.
14. PAYMENTS ON NOTES.
14.1. PLACE OF PAYMENT.
Subject to Section 14.2, payments of principal, premium, if
any, and interest becoming due and payable on the
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Notes shall be made at the principal office of Citibank, N.A. in New York City.
The Company may at any time, by notice to each holder of a Note, change the
place of payment of the Notes so long as such place of payment shall be either
the principal office of the Company in New York City or the principal office of
a bank or trust company in New York City.
14.2. HOME OFFICE PAYMENT.
So long as you or your nominee shall be the holder of any
Note, and notwithstanding anything contained in Section 14.1 or in such Note to
the contrary, the Company will pay all sums becoming due on such Note for
principal, Make-Whole Amount, if any, and interest by the method and at the
address specified for such purpose below your name in Schedule A, or by such
other method or at such other address as you shall have from time to time
specified to the Company in writing for such purpose, without the presentation
or surrender of such Note or the making of any notation thereon, except that
upon written request of the Company made concurrently with or reasonably
promptly after payment or prepayment in full of any Note, you shall surrender
such Note for cancellation, reasonably promptly after any such request, to the
Company at its principal executive office or at the place of payment most
recently designated by the Company pursuant to Section 14.1. Prior to any sale
or other disposition of any Note held by you or your nominee you will, at your
election, either endorse thereon the amount of principal paid thereon and the
last date to which interest has been paid thereon or surrender such Note to the
Company in exchange for a new Note or Notes pursuant to Section 13.2. The
Company will afford the benefits of this Section 14.2 to any Institutional
Investor that is the direct or indirect transferee of any Note purchased by you
under this Agreement and that has made the same agreement relating to such Note
as you have made in this Section 14.2.
15. EXPENSES, ETC.
15.1. TRANSACTION EXPENSES.
Whether or not the transactions contemplated hereby are
consummated, the Company will pay all costs and expenses (including reasonable
attorneys' fees of your special counsel and, if reasonably required, local or
other counsel) incurred by you and each Other Purchaser or holder of a Note in
connection with such transactions and in connection with any amendments, waivers
or consents under or in respect of this Agreement or the Notes (whether or not
such amendment, waiver or consent becomes effective), including without
limitation: (a) the costs and expenses incurred in enforcing or defending (or
reasonably determining whether or how to enforce or defend) any rights under
this Agreement or the Notes or in responding to any subpoena or other legal
process or informal investigative demand issued in connection with this
Agreement or the Notes, or by reason of being a holder of any Note, and (b) the
costs and expenses,
41
37
including financial advisors' fees, incurred in connection with the insolvency
or bankruptcy of the Company or any Subsidiary or in connection with any
work-out or restructuring of the transactions contemplated hereby and by the
Notes. The Company will pay, and will save you and each other holder of a Note
harmless from, all claims in respect of any fees, costs or expenses if any, of
brokers and finders (other than those retained by you).
In furtherance of the foregoing, on the date of the Closing
the Company will pay or cause to be paid the fees and disbursements and other
charges (including estimated unposted disbursements and other charges as of the
date of the Closing) of your special counsel which are reflected in the
statement of such special counsel submitted to the Company on or prior to the
date of the Closing. The Company will also pay, promptly upon receipt of
supplemental statements therefor, reasonable additional fees, if any, and
disbursements and charges of such special counsel in connection with the
transactions hereby contemplated (including disbursements and other charges
unposted as of the date of the Closing to the extent such disbursements exceed
estimated amounts paid as aforesaid).
15.2. SURVIVAL.
The obligations of the Company under this Section 15 will
survive the payment or transfer of any Note, the enforcement, amendment or
waiver of any provision of this Agreement or the Notes, and the termination of
this Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall
survive the execution and delivery of this Agreement and the Notes, the purchase
or transfer by you of any Note or portion thereof or interest therein and the
payment of any Note, and may be relied upon by any subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf of you or any
other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of the Company pursuant to this Agreement
shall be deemed representations and warranties of the Company under this
Agreement. Subject to the preceding sentence, this Agreement and the Notes
embody the entire agreement and understanding between you and the Company and
supersede all prior agreements and understandings relating to the subject matter
hereof.
17. AMENDMENT AND WAIVER.
17.1. REQUIREMENTS.
This Agreement and the Notes may be amended, and the
observance of any term hereof or of the Notes may be waived
42
38
(either retroactively or prospectively), with (and only with) the written
consent of the Company and the Required Holders, except that (a) no amendment or
waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 21, or any
defined term (as it is used therein), will be effective as to you unless
consented to by you in writing, and (b) no such amendment or waiver may, without
the written consent of the holder of each Note at the time outstanding affected
thereby, (i) subject to the provisions of Section 12 relating to acceleration or
rescission, change the amount or time of any prepayment or payment of principal
of, or change the rate or the time of payment or method of computation of
interest or of the Make-Whole Amount on, the Notes, (ii) change the percentage
of the principal amount of the Notes the holders of which are required to
consent to any such amendment or waiver, or (iii) amend any of Sections 8,
11(a), 11(b), 12, 17 or 20.
17.2. SOLICITATION OF HOLDERS OF NOTES.
(a) Solicitation. The Company will provide each holder of the
Notes (irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
of this Section 17 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay
or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, or grant any security, to any holder of
Notes as consideration for or as an inducement to such holder's consideration of
or entering into by any holder of Notes of any waiver or amendment of any of the
terms and provisions hereof unless such remuneration is concurrently paid, or
security is concurrently granted, on the same terms, ratably to each holder of
Notes then outstanding even if such holder did not consent to such waiver or
amendment.
17.3. BINDING EFFECT, ETC.
Any amendment or waiver consented to as provided in this
Section 17 applies equally to all holders of Notes and is binding upon them and
upon each future holder of any Note and upon the Company without regard to
whether such Note has been marked to indicate such amendment or waiver. No such
amendment or waiver will extend to or affect any obligation, covenant,
agreement, Default or Event of Default not expressly amended or waived or impair
any right consequent thereon. No course of dealing between the Company and the
holder of any Note nor any
43
39
delay in exercising any rights hereunder or under any Note shall operate as a
waiver of any rights of any holder of such Note. As used herein, the term "THIS
AGREEMENT" and references thereto shall mean this Agreement as it may from time
to time be amended or supplemented.
17.4. NOTES HELD BY COMPANY, ETC.
Solely for the purpose of determining whether the holders of
the requisite percentage of the aggregate principal amount of Notes then
outstanding approved or consented to any amendment, waiver or consent to be
given under this Agreement or the Notes, or have directed the taking of any
action provided herein or in the Notes to be taken upon the direction of the
holders of a specified percentage of the aggregate principal amount of Notes
then outstanding, Notes directly or indirectly owned by the Company or any of
its Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder shall be
in writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other
address as you or it shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at
such address as such other holder shall have specified to the Company
in writing, or
(iii) if to the Company, to the Company at its address set
forth at the beginning hereof to the attention of Chief Financial
Officer, or at such other address as the Company shall have specified
to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications that may hereafter
be executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
44
40
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "CONFIDENTIAL
INFORMATION" means information delivered to you by or on behalf of the Company
or any Subsidiary in connection with the transactions contemplated by or
otherwise pursuant to this Agreement that is proprietary in nature and that was
clearly marked or labeled or otherwise adequately identified when received by
you as being confidential information of the Company or such Subsidiary,
provided that such term does not include information that (a) was publicly known
or otherwise known to you prior to the time of such disclosure, (b) subsequently
becomes publicly known through no act or omission by you or any person acting on
your behalf, (c) otherwise becomes known to you other than through disclosure by
the Company or any Subsidiary or (d) constitutes financial statements delivered
to you under Section 7.1 that are otherwise publicly available. You will
maintain the confidentiality of such Confidential Information in accordance with
procedures adopted by you in good faith to protect confidential information of
third parties delivered to you, provided that you may deliver or disclose
Confidential Information to (i) your directors, officers, trustees, employees,
agents, attorneys and affiliates (to the extent such disclosure reasonably
relates to the administration of the investment represented by your Notes), (ii)
your financial advisors and other professional advisors whose duties require
them to hold confidential the Confidential Information substantially in
accordance with the terms of this Section 20, (iii) any other holder of any
Note, (iv) any Institutional Investor to which you sell or offer to sell such
Note or any part thereof or any participation therein (if such Person has agreed
in writing prior to its receipt of such Confidential Information to be bound by
the provisions of this Section 20), (v) any Person from which you offer to
purchase any security of the Company (if such Person has agreed in writing prior
to its receipt of such Confidential Information to be bound by the provisions of
this Section 20), (vi) any federal or state regulatory authority having
jurisdiction over you, (vii) the National Association of
45
41
Insurance Commissioners or any similar organization, or any nationally
recognized rating agency that requires access to information about your
investment portfolio or (viii) any other Person to which such delivery or
disclosure may be necessary or appropriate (w) to effect compliance with any
law, rule, regulation or order applicable to you, (x) in response to any
subpoena or other legal process, (y) in connection with any litigation to which
you are a party or (z) if an Event of Default has occurred and is continuing, to
the extent you may reasonably determine such delivery and disclosure to be
necessary or appropriate in the enforcement or for the protection of the rights
and remedies under your Notes and this Agreement. Each holder of a Note, by its
acceptance of a Note, will be deemed to have agreed to be bound by and to be
entitled to the benefits of this Section 20 as though it were a party to this
Agreement. On reasonable request by the Company in connection with the delivery
to any holder of a Note of information required to be delivered to such holder
under this Agreement or requested by such holder (other than a holder that is a
party to this Agreement or its nominee), such holder will enter into an
agreement with the Company embodying the provisions of this Section 20.
21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your
Affiliates as the purchaser of the Notes that you have agreed to purchase
hereunder, by written notice to the Company, which notice shall be signed by
both you and such Affiliate, shall contain such Affiliate's agreement to be
bound by this Agreement and shall contain a confirmation by such Affiliate of
the accuracy with respect to it of the representations set forth in Section 6.
Upon receipt of such notice, wherever the word "you" is used in this Agreement
(other than in this Section 21), such word shall be deemed to refer to such
Affiliate in lieu of you. In the event that such Affiliate is so substituted as
a purchaser hereunder and such Affiliate thereafter transfers to you all of the
Notes then held by such Affiliate, upon receipt by the Company of notice of such
transfer, wherever the word "you" is used in this Agreement, such word shall no
longer be deemed to refer to such Affiliate, but shall refer to you, and you
shall have all the rights of an original holder of the Notes under this
Agreement.
22. MISCELLANEOUS.
22.1. SUCCESSORS AND ASSIGNS.
All covenants and other agreements contained in this Agreement
by or on behalf of any of the parties hereto bind and inure to the benefit of
their respective successors and assigns (including without limitation any
subsequent holder of a Note) whether so expressed or not.
46
42
22.2. CONSTRUCTION.
Each covenant contained herein shall be construed (absent
express provision to the contrary) as being independent of each other covenant
contained herein, so that compliance with any one covenant shall not (absent
such an express contrary provision) be deemed to excuse compliance with any
other covenant. Where any provision herein refers to action to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
22.3. PAYMENTS DUE ON NON-BUSINESS DAYS.
Anything in this Agreement or the Notes to the contrary
notwithstanding (but without limiting the requirement in Section 8.1 that notice
of any optional prepayment specify a Business Day as the date fixed for such
prepayment), any payment of principal of or Make-Whole Amount (if any) or
interest on any Note that is due on a date other than a Business Day shall be
made on the next succeeding Business Day without including the additional days
elapsed in the computation of the interest payable on such next succeeding
Business Day.
22.4. SEVERABILITY.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the fullest extent permitted by applicable law) not
invalidate or render unenforceable such provision in any other jurisdiction.
22.5. ACCOUNTING TERMS; PRO FORMA CALCULATIONS.
All accounting terms used herein which are not expressly
defined in this Agreement have the meanings respectively given to them in
accordance with GAAP. Except as otherwise specifically provided herein, all
computations made pursuant to this Agreement shall be made in accordance with
GAAP and all balance sheets and other financial statements with respect thereto
shall be prepared in accordance with GAAP. Except as otherwise specifically
provided herein, any consolidated financial statement or financial computation
shall be done in accordance with GAAP; and, if at the time that any such
statement or computation is required to be made the Company shall not have any
Restricted Subsidiary, such terms shall mean a financial statement or a
financial computation, as the case may be, with respect to the Company only.
Any pro forma computation required to be made hereby shall
include adjustments (without limitation as to other
47
43
appropriate pro forma adjustments in accordance with generally accepted
financial practice) giving effect to all acquisitions and dispositions made
during the period with respect to which such computation is being made as if
such acquisitions and dispositions were made on the first day of such period.
22.6. COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
22.7. GOVERNING LAW.
This Agreement and the Notes shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the laws
of the State of New York excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
48
44
If you are in agreement with the foregoing, please sign the
form of agreement in the space below provided on a counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
PAXAR CORPORATION
By______________________
President
The foregoing is hereby agreed
to as of the date thereof.
[Purchaser]
By________________________
49
SCHEDULE A
This Schedule A shows the names and addresses of the
Purchasers under the foregoing Note Purchase Agreement and the Other Agreements
referred to therein and the respective principal amounts of Notes to be
purchased by each.
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
THE NORTHWESTERN MUTUAL LIFE $50,000,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire
transfer of immediately available funds to the account of The
Northwestern Mutual Life Insurance Company, at Account No.
00-000-000 at Bankers Trust Company, 16 Wall Street, Insurance
Xxxx - 0xx Xxxxx, Xxx Xxxx, XX 00000, ABA #000-000-000 with
sufficient information to identify the source and application
of such funds including the PPN: 704227 A* 8 for the 6.74%
Senior Notes due 2008.
(2) Address for all notices in respect of payments:
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Investment Operations
Fax: 000-000-0000
(3) Address for all other communications:
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Securities Department
Fax: 000-000-0000
(4) Tax Identification No.: 00-0000000
50
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
TEACHERS INSURANCE AND ANNUITY $20,000,000
ASSOCIATION OF AMERICA
(1) All payments on account of the Notes shall be made in
immediately available funds prior to 12:00 noon (New
York time) on the due date by electronic funds
transfer through the Automated Clearing House System
(identifying each payment as "Paxar Corporation, PPN
704227 A* 8 6.74% Senior Notes due 2008 (principal or
interest or premium)") to:
The Chase Manhattan Bank
ABA No. 000-000-000
New York, New York
Account of: Teachers Insurance and Annuity Association of
America
Account Number: 000-0-000000
For Further Credit to TIAA Account # G07040
On Order of: Paxar Corporation
(2) Contemporaneous with the above electronic funds
transfer payment, written confirmation of each such
payment setting forth: (a) the full name, private
placement number, interest rate and maturity date of
the Notes; (b) allocation of payment between
principal, interest, premium and any special payment;
and (c) the name and address of the bank from which
such electronic funds transfer was sent shall be
delivered, mailed or faxed to:
Teachers Insurance and Annuity Association
of America
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Securities Accounting Division
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
(3) All other communications shall be delivered or mailed to:
A-2
51
Teachers Insurance and Annuity Association
of America
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Securities Division, Private Placements
Xxxxxxxx Xxx
Telephone Number: (000) 000-0000
General Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
(4) Taxpayer I.D. Number: 00-0000000
A-3
52
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
GENERAL ELECTRIC CAPITAL LIFE ASSURANCE $10,000,000
COMPANY OF NEW YORK
(I/N/X XXXXXXX & CO.)
(1) All payments on account of Notes held by
such purchaser shall be made by wire transfer
of immediately available funds for credit to:
Bankers Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
ABA 000000000
Attn: 00-000-000
FCC #098620
Each such wire transfer shall set forth the name of
the Company, a reference to Paxar Corporation 6.74%
Senior Notes due 2008, Security No. INV ____, and the
due date and application (as among principal,
interest and Modified Make-Whole Amount) of the
payment being made
(2) Address for all notices relating to payments:
General Electric Capital Life Assurance Company of New York
c/o GE Financial Assurance
Two Union Square
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Investment Accounting, 14th Floor
Telephone: 000-000-0000
Fax: 000-000-0000
(3) Address for all other communications and notices:
General Electric Capital Life Assurance Company of New York
c/o GE Financial Assurance
Two Union Square
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Investment Accounting,
VP Private Placements
Telephone: 000-000-0000
Fax: 000-000-0000
(4) Tax Identification No.: 00-0000000
A-4
53
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
GE CAPITAL EDISON LIFE INSURANCE COMPANY $10,000,000
(I/N/O AUER & CO.)
(1) All payments on account of Notes held by such purchaser shall be made
by wire transfer of immediately available funds for credit to:
Bankers Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
ABA 000000000
Attn: 00-000-000
FCC #501551253
Each such wire transfer shall set forth the name of the Company, a
reference to Paxar Corporation 6.74% Senior Notes due 2008, Security
No. INV ____, and the due date and application (as among principal,
interest and Modified Make-Whole Amount) of the payment being made
(2) Address for all notices relating to payments:
GE Capital Life Insurance Company
c/o GE Financial Assurance
Two Union Square
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Investment Accounting, 14th Floor
Telephone: 000-000-0000
Fax: 000-000-0000
(3) Address for all other communications and notices:
GE Capital Life Insurance Company
c/o GE Financial Assurance
Two Union Square
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Investment Accounting,
VP Private Placements
Telephone: 000-000-0000
Fax: 000-000-0000
X-0
00
Xxxxxxxxx Xxxxxx of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE $15,000,000
COMPANY
(1) All payments on account of the Notes shall be made by crediting in the
form of bank wire transfer of Federal or other immediately available
funds (identifying each payment as Paxar Corporation 6.74% Senior Notes
due 2008, interest and principal) as follows:
(a) for the Note in the original principal amount of
$12,500,000:
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
ABA No. 000000000
For MassMutual Long Term Pool
Account No. 4067-3488
Re: Description of security, principal and interest split
(b) for the Note in the original principal amount of $2,500,000:
The Chase Manhattan Bank
0 Xxxxx XxxxxXxxx Xxxxxx
Xxx Xxxx, XX 00000
ABA No. 032000032
For MassMutual IFM Non-Traditional
Account No. 910-0000000
Re: Description of security, principal and interest split
Each with telephone advice of payment to the Securities Custody and
Collection Department of Massachusetts Mutual Life Insurance Company at
(000) 000-0000
(2) All notices and communications to be addressed to:
Massachusetts Mutual Life
Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
A-6
55
Attn: Securities Investment Division
(3) Notices with respect to payments and corporate actions to be addressed
as provided in clause (2) above:
Attention: Securities Custody and Collection Department F 381
(4) Tax Identification Number: 00-0000000
A-7
56
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
XXXXXX INVESTORS LIFE INSURANCE COMPANY $8,100,000
(I/N/O HARE & CO)
(1) All payments on account of the Notes shall be made by wire transfer of
Federal or other immediate available funds to:
HARE & CO - Account No. 195279
at
The Bank of New York
ABA No. 000000000
BNF
IOC 566
Attn: Security Income Collection
with sufficient information (including issuer, interest rate, maturity,
PPN 704227 A* 8 and whether payment is of principal, premium or
interest) to identify the source and application of such funds.
(2) Address for all communications:
Xxxxxx Investors Life Insurance Company
c/o Zurich Investment Management, Inc.
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: Private Placements
(3) Tax Identification Number: 00-0000000
A-8
57
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
FEDERAL XXXXXX LIFE ASSURANCE COMPANY $4,000,000
(I/N/O HARE & CO)
(1) All payments on account of the Notes shall be made by wire transfer of
Federal or other immediate available funds to:
HARE & CO - Account No. 195269
at
The Bank of New York
ABA No. 000000000
BNF
IOC 566
Attn: Security Income Collection
with sufficient information (including issuer, interest rate, maturity,
PPN 704227 A* 8 and whether payment is of principal, premium or
interest) to identify the source and application of such funds.
(2) Address for all communications:
Federal Xxxxxx Life Assurance Company
c/o Zurich Investment Management, Inc.
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: Private Placements
(3) Tax Identification Number: 00-0000000
A-9
58
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
FIDELITY LIFE ASSOCIATION $1,300,000
(I/N/O HARE & CO)
(1) All payments on account of the Notes shall be made by wire transfer of
Federal or other immediate available funds to:
HARE & CO - Account No. 195271
at
The Bank of New York
ABA No. 000000000
BNF
IOC 566
Attn: Security Income Collection
with sufficient information (including issuer, interest rate, maturity,
PPN 704227 A* 8 and whether payment is of principal, premium or
interest) to identify the source and application of such funds.
(2) Address for all communications:
Fidelity Life Association
c/o Zurich Investment Management, Inc.
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: Private Placements
(3) Tax Identification Number: 00-0000000
X-00
00
Xxxxxxxxx Xxxxxx of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
ZURICH LIFE INSURANCE COMPANY OF AMERICA $600,000
(I/N/O HARE & CO)
(1) All payments on account of the Notes shall be made by wire transfer of
Federal or other immediate available funds to:
HARE & CO - Account No. 399609
at
The Bank of New York
ABA No. 000000000
BNF
IOC 566
Attn: Security Income Collection
with sufficient information (including issuer, interest rate, maturity,
PPN 704227 A* 8 and whether payment is of principal, premium or
interest) to identify the source and application of such funds.
(2) Address for all communications:
Zurich Life Insurance Company of America
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: Private Placements
(3) Tax Identification Number: 00-0000000
X-00
00
Xxxxxxxxx Xxxxxx of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
RELIASTAR LIFE INSURANCE COMPANY $6,000,000
(1) All payments on account of the Notes shall be made by wire transfer of
Federal or other immediate available funds to:
US Bank N.A./Mpls
000 0xx Xxx. X., Xxxx, XX
Bank ABA #000000000
Acct Name: ReliaStar Life Insurance Co.
Acct. #110240014461
Attn: Securities Accounting
with sufficient information (including issuer, interest rate, maturity,
PPN 704227 A* 8 and whether payment is of principal, premium or
interest) to identify the source and application of such funds.
(2) Address for all communications:
Reliastar Investment Research
000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Ref: Xxxxx Xxxxx
000-000-0000
Fax: 000-000-0000
(3) Tax Identification Number: 00-0000000
X-00
00
Xxxxxxxxx Xxxxxx of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
NORTHERN LIFE INSURANCE COMPANY $2,000,000
(1) All payments on account of the Notes shall be made by wire transfer of
Federal or other immediate available funds to:
US Bank N.A./Mpls
000 0xx Xxx. X.
Xxxx. #160232376105
Bank ABA #000000000
with sufficient information (including issuer, interest rate, maturity,
PPN 704227 A* 8 and whether payment is of principal, premium or
interest) to identify the source and application of such funds.
(2) Address for all communications:
Reliastar Investment Research
000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Ref: Xxxxx Xxxxx
000-000-0000
Fax: 000-000-0000
(3) Tax Identification Number: 00-0000000
X-00
00
Xxxxxxxxx Xxxxxx of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
SECURITY CONNECTICUT LIFE INSURANCE COMPANY $2,000,000
(I/N/X XXXXXX & CO.)
(1) All payments on account of the Notes shall be made by wire transfer of
Federal or other immediate available funds to:
Chase Manhattan Bank
New York, New York
ABA #000-000-000
Beneficiary Account #544755102
Reference: Xxxxxx & Co.
Tax I.D.: 00-0000000
F/C #G54426
with sufficient information (including issuer, interest rate, maturity,
PPN 704227 A* 8 and whether payment is of principal, premium or
interest) to identify the source and application of such funds.
(2) Address for all notices in respect of payment:
Xxxxxx & Co.
c/o Chase Manhattan Bank
Dept. #3492
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
(3) Address for all communications:
Reliastar Investment Research
000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Ref: Xxxxx Xxxxx
000-000-0000
Fax: 000-000-0000
(4) Tax Identification Number: 00-0000000
X-00
00
Xxxxxxxxx Xxxxxx of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
MUTUAL OF OMAHA INSURANCE COMPANY $6,000,000
(1) All principal and interest payments on the Notes shall be made by wire
transfer of immediately available funds to:
Chase Manhattan Bank
ABA #000000000
Private Income Processing
For Credit to:
Mutual of Omaha Insurance Company
Account #900-0000000
a/c: G07096
Cusip/PPN: 704227 A* 8
Interest Amount:
Principal Amount:
(2) Address for all notices in respect of payment of Principal and
Interest, Corporate Actions, and Reorganization Notifications:
The Chase Manhattan Bank
4 Xxx Xxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Income Processing - J. Pipperato
a/c: G07096
(3) Address for all other communications:
4 - Investment Loan Administration
Mutual of Omaha Insurance company
Mutual of Xxxxx Xxxxx
Xxxxx, XX 00000-0000
(4) Tax Identification Number: 00-0000000
X-00
00
Xxxxxxxxx Xxxxxx of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
UNITED OF OMAHA LIFE INSURANCE COMPANY $3,000,000
(1) All principal and interest payments on the Notes shall be made by wire
transfer of immediately available funds to:
Chase Manhattan Bank
ABA #000000000
Private Income Processing
For Credit to:
United of Omaha Life Insurance Company
Account #900-0000000
a/c: G07097
Cusip/PPN: 704227 A* 8
Interest Amount:
Principal Amount:
(2) Address for all notices in respect of payment of Principal and
Interest, Corporate Actions, and Reorganization Notifications:
The Chase Manhattan Bank
4 Xxx Xxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Income Processing - J. Pipperato
a/c: G07097
(3) Address for all other communications:
4 - Investment Loan Administration
Mutual of Omaha Insurance company
Mutual of Xxxxx Xxxxx
Xxxxx, XX 00000-0000
(4) Tax Identification Number: 00-0000000
X-00
00
Xxxxxxxxx Xxxxxx of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
UNITED WORLD LIFE INSURANCE COMPANY $1,000,000
(1) All principal and interest payments on the Notes shall be made by wire
transfer of immediately available funds to:
Chase Manhattan Bank
ABA #000000000
Private Income Processing
For Credit to:
United World Life Insurance Company
Account #900-0000000
a/c: G07098
Cusip/PPN: 704227 A* 8
Interest Amount:
Principal Amount:
(2) Address for all notices in respect of payment of Principal and
Interest, Corporate Actions, and Reorganization Notifications:
The Chase Manhattan Bank
4 Xxx Xxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Income Processing - J. Pipperato
a/c: G07098
(3) Address for all other communications:
4 - Investment Loan Administration
Mutual of Omaha Insurance company
Mutual of Xxxxx Xxxxx
Xxxxx, XX 00000-0000
(4) Tax Identification Number: 00-0000000
X-00
00
Xxxxxxxxx Xxxxxx of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
STATE FARM LIFE INSURANCE COMPANY $6,000,000
(1) All payments on account of the Notes shall be made by wire
transfer of immediately available funds to
The Chase Manhattan Bank
ABA No. 000000000
SSG Private Income Processing
A/C #000-0-000000
For Credit to Account Number G 06893
with sufficient information setting forth (i) the name of the Company,
(ii) the maturity date, (iii) the PPN: 704227 A* 8 of the Notes, (iv)
the amount of principal, interest and premium, if any, and (v) the due
date of the payment being made.
(2) All communications, including payment notices (as well as a photocopy
of the original security), to:
State Farm Life Insurance Company
Investment Dept. E-10
Xxx Xxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
(3) Address for delivery of securities (via registered mail):
Chase Manhattan Bank
Attn: Xxxxxxx Xxxxx
(North America Insurance)
0 Xxxxx Xxxxxxxxx Xxxxxx-0xx Xxxxx
Xxxxxxxx, XX 00000
with a copy to:
State Farm Life Insurance Companies
Xxx Xxxxx Xxxx Xxxxx X-0
Xxxxxxxxxxx, XX 00000
Attn: Investment Legal E-8
Xxxxx Xxxxxxxx, Investment Counsel
(5) Tax Identification Number: 00-0000000
X-00
00
Xxxxxxxxx Xxxxxx of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
AMERICAN UNITED LIFE INSURANCE $4,000,000
COMPANY
(1) All payments on account of the Notes shall be made by wire transfer of
federal or other immediately available funds to:
Bank of New York
Attn: P&I Department
One Wall Street, 3rd Floor
Window A
Xxx Xxxx, Xxx Xxxx 00000
ABA #21000018
BNF: IOC566
Account #186683/AUL
With sufficient information (including interest rate and maturity) to
identify the breakdown of principal and interest and should identify the
full description of the Notes and payment date, including the PPN:
704227 A* 8 of the Notes.
(2) Address for all communications:
Securities Department
American United Life
Insurance Company
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
(3) Tax Identification No.: 00-0000000
X-00
00
Xxxxxxxxx Xxxxxx of
Name and Address of Purchaser Notes to be Purchased
----------------------------- ---------------------
THE STATE LIFE INSURANCE COMPANY $1,000,000
(1) All payments on account of the Notes shall be made by wire transfer of
federal or other immediately available funds to:
Bank of New York
Attn: P&I Department
One Wall Street, 3rd Floor
Window A
Xxx Xxxx, Xxx Xxxx 00000
ABA #21000018
BNF: IOC566
Account #343761
State Life, c/o American United Life
With sufficient information (including interest rate and maturity) to
identify the breakdown of principal and interest and should identify
the full description of the Notes and payment date, including the PPN:
704227 A* 8 of the Notes.
(2) Address for all communications:
Securities Department
American United Life
Insurance Company
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
(3) Tax Identification No.: 00-0000000
X-00
00
XXXXXXXX X
DEFINED TERMS
As used herein, the following terms have the respective
meanings set forth below or set forth in the Section hereof following such term:
"ADDITIONAL BORROWING FACILITY INDEBTEDNESS" means, at any
time, any Borrowing Facility Indebtedness incurred after the date of this
Agreement other than pursuant to clause (ii) or (iii) of Section 10.1(a) to the
extent outstanding at such time.
"ADJUSTED PRIORITY DEBT" is defined in Section 10.1.
"AFFILIATE" means, at any time, (a) with respect to any Person
(including without limitation the Company), any other Person that at such time
directly or indirectly through one or more intermediaries Controls, or is
Controlled by, or is under common Control with, such first Person, and (b) with
respect to the Company, any Person beneficially owning or holding, directly or
indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary or any corporation of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly,
10% or more of any class of voting or equity interests. As used in this
definition, "CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an "Affiliate"
is a reference to an Affiliate of the Company.
"ATTRIBUTABLE DEBT" means, as to any particular lease relating
to a sale and leaseback transaction, the total amount of rent (discounted
semiannually from the respective due dates thereof at the interest rate implicit
in such lease) required to be paid by the lessee under such lease during the
remaining term thereof. The amount of rent required to be paid under any such
lease for any such period shall be (a) the total amount of the rent payable by
the lessee with respect to such period after excluding amounts required to be
paid on account of maintenance and repairs, insurance, taxes, assessments,
utilities, operating and labor costs and similar charges plus (b) without
duplication, any guaranteed residual value in respect of such lease to the
extent such guarantee would be included in indebtedness in accordance with GAAP.
"BANK CREDIT AGREEMENT" means the Amended and Restated Credit
Agreement dated as of August 11, 1998 between the Company and Fleet Bank, N.A.,
as Administrative Agent, and the Lenders named therein, as supplemented,
amended, restated or refinanced from time to time.
Schedule B
70
-2-
"BORROWING FACILITY INDEBTEDNESS" means Funded Indebtedness of
the Company or any Restricted Subsidiary which either (a) has a final maturity
of less than 12 months from the date of determination but which by its terms is
renewable or extendible beyond 12 months from such date at the option of the
obligor or (b) is issued under a credit facility having a final termination or
maturity date of more than 12 months from the date of determination but which
permits amounts to be repaid and reborrowed thereunder at the option of the
obligor prior to such final termination or maturity date.
"BUSINESS DAY" means any day other than a Saturday, a Sunday
or a day on which commercial banks in New York City are required or authorized
to be closed.
"CAPITAL LEASE" means, at any time, a lease with respect to
which the lessee is required concurrently to recognize the acquisition of an
asset and the incurrence of a liability in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" means with respect to any
Person, all outstanding obligations of such Person in respect of Capital Leases,
taken at the capitalized amount thereof accounted for as indebtedness in
accordance with GAAP.
"CLOSING" is defined in Section 3.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations promulgated thereunder from
time to time.
"COMPANY" means Paxar Corporation, a New York corporation.
"CONFIDENTIAL INFORMATION" is defined in Section 20.
"CONSOLIDATED CAPITALIZATION" means, at any date, the sum of
(a) Consolidated Indebtedness plus (b) Consolidated Net Worth plus (c) deferred
tax liabilities (if any), all as determined on a consolidated basis for the
Company and its Restricted Subsidiaries in accordance with GAAP.
"CONSOLIDATED INDEBTEDNESS" means, at any date, all
Indebtedness of the Company and its Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP, excluding Borrowing Facility
Indebtedness in an amount not exceeding the Maximum Amount.
"CONSOLIDATED INTEREST EXPENSE" for any period means the sum
for the Company and its Restricted Subsidiaries, determined on a consolidated
basis in accordance with GAAP, of all amounts which would be deducted in
computing Consolidated Net Income on account of interest on Indebtedness
(including imputed
Schedule B
71
-3-
interest in respect of Capitalized Lease Obligations and amortization of debt
discount and expense).
"CONSOLIDATED NET INCOME" for any period means the net income
of the Company and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP, excluding
(a) the proceeds of any life insurance policy,
(b) any gains arising from (i) the sale or other disposition
of any assets (other than current assets) to the extent that the
aggregate amount of the gains during such period exceeds the aggregate
amount of the losses during such period from the sale, abandonment or
other disposition of assets (other than current assets), (ii) any
write-up of assets or (iii) the acquisition of outstanding securities
of the Company or any Restricted Subsidiary,
(c) any amount representing any interest in the undistributed
earnings of any other Person (other than a Restricted Subsidiary),
(d) any earnings, prior to the date of acquisition, of any
Person acquired in any manner, and any earnings of any Restricted
Subsidiary prior to its becoming a Restricted Subsidiary,
(e) any earnings of a successor to or transferee of the assets
of the Company prior to its becoming such successor or transferee,
(f) any deferred credit (or amortization of a deferred credit)
arising from the acquisition of any Person, and
(g) any extraordinary gains not covered by clause (b) above.
"CONSOLIDATED NET WORTH" means, at any date, on a consolidated
basis for the Company and its Restricted Subsidiaries, (a) the sum of (i)
capital stock taken at par or stated value plus (ii) capital in excess of par or
stated value relating to capital stock plus (iii) retained earnings (or minus
any retained earning deficit) minus (b) the sum of treasury stock, capital stock
subscribed for and unissued and other contra-equity accounts, all determined in
accordance with GAAP.
"CONSOLIDATED TOTAL ASSETS" means, at any date, the total
assets of the Company and its Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"DEFAULT" means an event or condition the occurrence or
existence of which would, with the giving of notice or the lapse of time, or
both, become an Event of Default.
Schedule B
72
-4-
"DEFAULT RATE" means that rate of interest that is the greater
of (i) 8.74% per annum and (ii) 2% above the rate of interest publicly announced
by Citibank, N.A. from time to time at its principal office in New York City as
its prime rate.
"DOMESTIC RESTRICTED SUBSIDIARY" means any Restricted
Subsidiary organized under the laws of the United States or any State thereof
and conducting substantially all of its business in the United States.
"EBITDA" for any period means Consolidated Net Income plus all
amounts deducted in the computation thereof on account of (a) Consolidated
Interest Expense, (b) depreciation and amortization expenses and other non-cash
charges and (c) income and profits taxes.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the rules and regulations promulgated
thereunder from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under section 414 of the Code.
"EVENT OF DEFAULT" is defined in Section 11.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time.
"FUNDED INDEBTEDNESS" of any Person as of any date means all
Indebtedness of such Person which by its terms or by the terms of any instrument
or agreement relating thereto matures, or which is otherwise payable or unpaid,
one year or more from, or is directly or indirectly renewable or extendible at
the option of the obligor in respect thereof to a date one year or more
(including without limitation an option of such obligor under a revolving credit
or similar agreement obligating the lender or lenders to extend credit over a
period of one year or more) from, the date of the creation thereof, and shall
also include the current maturities of any such Indebtedness as of such date.
"GAAP" means generally accepted accounting principles as in
effect from time to time in the United States of America.
Schedule B
73
-5-
"GOVERNMENTAL AUTHORITY" means
(a) the government of
(i) the United States of America or any State or
other political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or which
asserts jurisdiction over any properties of the Company or any
Subsidiary, or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"GUARANTY" means, with respect to any Person, any obligation
(except the endorsement in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person guaranteeing or in effect
guaranteeing any Indebtedness, dividend or other obligation of any other Person
in any manner, whether directly or indirectly, including without limitation
obligations incurred through an agreement, contingent or otherwise, by such
Person:
(a) to purchase such Indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment
of such Indebtedness or obligation, or (ii) to maintain any working
capital or other balance sheet condition or any income statement
condition of any other Person;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of any other Person to make payment of the
Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or
obligation against loss in respect thereof.
In any computation of the Indebtedness or other liabilities of the obligor under
any Guaranty, the Indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"HAZARDOUS MATERIAL" means any and all pollutants, toxic or
hazardous wastes or any other substances that might pose a hazard to health or
safety, the removal of which may be required or the generation, manufacture,
refining, production, processing, treatment, storage, handling, transportation,
transfer, use, disposal, release, discharge, spillage, seepage, or filtration of
which is or shall be restricted, prohibited or
Schedule B
74
-6-
penalized by any applicable law (including without limitation asbestos, urea
formaldehyde foam insulation and polycholorinated biphenyls).
"HOLDER" means, with respect to any Note, the Person in whose
name such Note is registered in the register maintained by the Company pursuant
to Section 13.1.
"INDEBTEDNESS" with respect to any Person means, at any time,
without duplication,
(a) its liabilities for borrowed money or its redemption
obligations in respect of Preferred Stock that is mandatorily
redeemable prior to the final maturity of the Notes,
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising in
the ordinary course of business and not overdue but including all
liabilities created or arising under any conditional sale or other
title retention agreement with respect to any such property),
(c) its Capitalized Lease Obligations,
(d) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not it
has assumed or otherwise become liable for such liabilities),
(e) all its liabilities in respect of letters of credit or
instruments serving a similar function issued or accepted for its
account by banks and other financial institutions (whether or not
representing obligations for borrowed money),
(f) Swaps of such Person, and
(g) any Guaranty of such Person with respect to liabilities of
a type described in any of clauses (a) through (f) above, provided that
no obligation of the Company of the type described in clause (b)(ii) of
the definition of "Guaranty", with respect to liabilities of any other
Person, shall be deemed to constitute Indebtedness of the Company if at
the time such obligation is not required to be shown as a liability on
a balance sheet of the Company prepared in accordance with GAAP.
Indebtedness of any person shall include all obligations of such person of the
character described in clauses (a) through (g) above to the extent such person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP.
Schedule B
75
-7-
"INSTITUTIONAL INVESTOR" means (a) any original purchaser of a
Note, (b) any holder of a Note holding (together with one or more of its
Affiliates) more than 2% of the aggregate principal amount of the Notes then
outstanding, and (c) any bank, trust company, savings and loan association or
other financial institution, any pension plan, any investment company, any
insurance company, any broker or dealer, or any other similar financial
institution or entity, regardless of legal form.
"LIEN" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or of such Person under
any conditional sale or other title retention agreement or Capital Lease, upon
or with respect to any property or asset of such Person (including in the case
of stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"MAKE-WHOLE AMOUNT" is defined in Section 8.5.
"MATERIAL" means material in relation to the business,
operations, affairs, financial condition, assets or properties of the Company
and its Restricted Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, operations, affairs, financial condition, assets or properties
of the Company and its Restricted Subsidiaries taken as a whole, (b) the ability
of the Company to perform its obligations under this Agreement and the Notes or
(c) the validity or enforceability of this Agreement or the Notes or the
Subsidiary Guarantee of any Significant Subsidiary.
"MAXIMUM AMOUNT" means on any date an amount equal to 20% of
pro forma consolidated net revenues of the Company and its Restricted
Subsidiaries for the four consecutive fiscal quarters then most recently ended,
determined on a consolidated basis in accordance with GAAP.
"MEMORANDUM" is defined in Section 5.3.
"MULTIEMPLOYER PLAN" means any Plan that is a "multiemployer
plan" (as such term is defined in section 4001(a)(3) of ERISA).
"NOTES" is defined in Section 1.1.
"OFFICER'S CERTIFICATE" means a certificate of a Senior
Financial Officer or of any other officer of the Company whose responsibilities
extend to the subject matter of such certificate.
"OTHER AGREEMENTS" is defined in Section 2.
"OTHER PURCHASERS" is defined in Section 2.
Schedule B
00
-0-
"XXXX" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA or any successor thereto.
"PERSON" means an individual, partnership, corporation,
limited liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"PLAN" means an "employee benefit plan" (as defined in section
3(3) of ERISA) that is or, within the preceding five years, has been established
or maintained, or to which contributions are or, within the preceding five
years, have been made or required to be made, by the Company or any ERISA
Affiliate or with respect to which the Company or any ERISA Affiliate may have
any liability.
"PREFERRED STOCK", as applied to any corporation, means shares
of such corporation that shall be entitled to preference or priority over any
other shares of such corporation in respect of either the payment of dividends
or the distribution of assets upon liquidation, or both.
"PRIORITY DEBT" is defined in Section 10.1.
"PROPERTY" or "PROPERTIES" means, unless otherwise
specifically limited, real or personal property of any kind, tangible or
intangible, inchoate or otherwise.
"PTE" is defined in Section 6.2.
"QPAM EXEMPTION" means Prohibited Transaction Class Exemption
84-14 issued on March 13, 1984 by the United States Department of Labor.
"REQUIRED HOLDERS" means, at any time, the holders of at least
a majority in unpaid principal amount of the Notes at the time outstanding.
"RESPONSIBLE OFFICER" means any Senior Financial Officer and
any other officer of the Company with responsibility for the administration of
the relevant portion of this Agreement.
"RESTRICTED SUBSIDIARY" means as of the date of this Agreement
each Subsidiary as designated in Schedule 5.4 and thereafter means each such
Subsidiary not designated as an Unrestricted Subsidiary pursuant to Section
10.8(a) and each other Subsidiary that is not an Unrestricted Subsidiary;
provided that each of Monarch Marking Systems, Inc. and International Imaging
Materials, Inc. shall at all times remain a Restricted Subsidiary, in each case
so long as such corporation is a Subsidiary.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time.
Schedule B
77
-9-
"SENIOR FINANCIAL OFFICER" means the chief financial officer,
principal accounting officer, treasurer or comptroller of the Company.
"SIGNIFICANT SUBSIDIARY" means, at any date, a Restricted
Subsidiary (a) which, together with its Subsidiaries, produced more than 10% of
Consolidated Net Income for the fiscal year then most recently ended (calculated
on a pro forma basis in the case of any Person which became a Subsidiary during
or after the end of such fiscal year) or (b) the assets of which, together with
the assets of its Subsidiaries, exceeded 10% of the Consolidated Total Assets as
of the last day of such fiscal year (calculated on a pro forma basis as of the
last day of such fiscal year in the case of any Person which became a Restricted
Subsidiary thereafter).
"SUBSIDIARY" means, as to any Person, any corporation or other
business entity a majority of the combined voting power of all Voting Stock of
which is owned by such Person or one or more of its Subsidiaries or such Person
and one or more of its Subsidiaries. Unless the context otherwise clearly
requires, any reference to a "Subsidiary" is a reference to a Subsidiary of the
Company.
"SUBSIDIARY GUARANTEE" is defined in Section 1.2.
"SUBSIDIARY GUARANTORS" is defined in Section 4.5.
"SWAPS" means, with respect to any Person, payment obligations
with respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Agreement, the amount of
the obligation under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of such Person,
based on the assumption that such Swap had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating to such
Swap provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligation shall be the net amount so determined.
"TOTAL INDEBTEDNESS TO EBITDA RATIO" means, at any date, the
ratio of (a) Consolidated Indebtedness as at such date to (b) pro forma EBITDA
for the four consecutive fiscal quarters then most recently ended.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary that has been
designated as an Unrestricted Subsidiary pursuant to Section 10.8(a) and has not
been subsequently redesignated as a Restricted Subsidiary pursuant to Section
10.8(b).
Schedule B
78
-10-
"VOTING STOCK" means, with respect to any Person, any shares
of stock or other equity interests of any class or classes of such Person whose
holders are entitled under ordinary circumstances (irrespective of whether at
the time stock or other equity interests of any other class or classes shall
have or might have voting power by reason of the happening of any contingency)
to vote for the election of a majority of the directors, managers, trustees or
other governing body of such Person.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" means, at any time, any
Restricted Subsidiary all of the equity interests (except directors' qualifying
shares) and voting interests of which are owned by any one or more of the
Company and the Company's other Wholly-Owned Restricted Subsidiaries at such
time.
Schedule B
79
EXHIBIT 1.1
[FORM OF NOTE]
PAXAR CORPORATION
6.74% SENIOR NOTE DUE 2008
No. R-[_____] New York, New York
$[_______] [Date]
PPN: 704227 A* 8
FOR VALUE RECEIVED, the undersigned, PAXAR CORPORATION (the "COMPANY"),
a New York corporation, hereby promises to pay to [__________________ ], or
registered assigns, the principal sum of [________________ ] DOLLARS on August
11, 2008, with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) from the date hereof on the unpaid balance thereof at the
rate of 6.74% per annum, payable semiannually on February 11 and August 11 in
each year, until the principal hereof shall have become due and payable, and (b)
on any overdue payment of principal, any overdue payment of interest (to the
extent permitted by applicable law) and any overdue payment of any premium or
Make-Whole Amount (as defined in the Note Purchase Agreements referred to
below), payable semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand) at a rate per annum from time to time equal to the
greater of (i) 8.74% and (ii) 2% above the rate of interest publicly announced
by Citibank, N.A. from time to time at its principal office in New York City as
its prime rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at said principal office of Citibank, N.A. in New York City or at such
other place as the Company shall have designated by written notice to the holder
of this Note as provided in the Note Purchase Agreements referred to below.
This Note is one of a series of 6.74% Senior Notes due 2008 issued
pursuant to separate Note Purchase Agreements dated as of August 4, 1998 (as
from time to time amended, the "NOTE PURCHASE AGREEMENTS") between the Company
and the respective Purchasers named therein and is entitled to the benefits
thereof. This Note is also entitled to the benefits of certain Subsidiary
Guarantees that were executed and delivered pursuant to the Note Purchase
Agreements. Each holder of this Note will be deemed, by its acceptance hereof,
to have agreed to the confidentiality provisions set forth in Section 20 of the
Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a
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written instrument of transfer duly executed, by the registered holder hereof or
such holder's attorney duly authorized in writing, a new Note for a like
principal amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of transfer, the Company
may treat the person in whose name this Note is registered as the owner hereof
for the purpose of receiving payment and for all other purposes, and the Company
will not be affected by any notice to the contrary.
The Company may make optional prepayments of principal, in whole or
from time to time in part, at the times and on the terms specified in the Note
Purchase Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable premium or Make-Whole Amount) and with the effect provided in the
Note Purchase Agreements.
This Note shall be construed and enforced in accordance with, and the
rights of the Company and the holder hereof shall be governed by, the laws of
the State of New York, excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
PAXAR CORPORATION
By_________________________
Title:
81
Exhibit 1.2
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT dated as of _____________, ___ made by
________________________, a _________________ corporation (the "GUARANTOR"), in
favor of the holders from time to time of the Notes referred to below
(collectively the "OBLIGEES").
WHEREAS, Paxar Corporation, a New York corporation (the
"COMPANY"), has entered into several Note Purchase Agreements dated as of August
4, 1998 (as amended or otherwise modified from time to time, collectively the
"NOTE AGREEMENTS" and terms defined therein and not otherwise defined herein are
being used herein as so defined) with the institutional purchasers listed in
Schedule A thereto, pursuant to which the Company proposes to issue and sell to
such purchasers $150,000,000 aggregate principal amount of its 6.74% Senior
Notes due 2008 (the "NOTES"); and
WHEREAS, it is a [condition precedent to the purchase of the
Notes by such purchasers under/requirement of] the Note Agreements that the
Guarantor shall execute and deliver this Guarantee Agreement;
NOW, THEREFORE, in consideration of the premises the Guarantor
hereby agrees as follows:
SECTION 1. Guarantee. The Guarantor unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety,
A. the punctual payment when due, whether at stated maturity,
by acceleration or otherwise, of all obligations of the Company arising
under the Notes and the Note Agreements, including all extensions,
modifications, substitutions, amendments and renewals thereof, whether
for principal, interest (including without limitation interest on any
overdue principal, premium and interest at the rate specified in the
Notes and interest accruing or becoming owing both prior to and
subsequent to the commencement of any proceeding against or with
respect to the Company under any chapter of the Bankruptcy Code of
1978, 11 U.S.C. Section101 et seq.), Make-Whole Amount, Additional
Amounts, fees, expenses, indemnification or otherwise, and
B. the due and punctual performance and observance by the
Company of all covenants, agreements and conditions on its part to be
performed and observed under the Notes and the Note Agreements;
(all such obligations are called the "GUARANTEED OBLIGATIONS"); provided that
the aggregate liability of the Guarantor hereunder
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in respect of the Guaranteed Obligations shall not exceed at any time the lesser
of (1) the amount of the Guaranteed Obligations and (2) the maximum amount for
which the Guarantor is liable under this Guarantee Agreement without such
liability being deemed a fraudulent transfer under applicable Debtor Relief Laws
(as hereinafter defined), as determined by a court of competent jurisdiction. As
used herein, the term "DEBTOR RELIEF LAWS" means any applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, insolvency,
reorganization or similar debtor relief laws affecting the rights of creditors
generally from time to time in effect.
The Guarantor also agrees to pay, in addition to the amount
stated above, any and all reasonable expenses (including reasonable counsel fees
and expenses) incurred by any Obligee in enforcing any rights under this
Guarantee Agreement or in connection with any amendment of this Guarantee
Agreement.
Without limiting the generality of the foregoing, this
Guarantee Agreement guarantees, to the extent provided herein, the payment of
all amounts which constitute part of the Guaranteed Obligations and would be
owed by any other Person to any Obligee but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Person.
SECTION 2. Guarantee Absolute. The obligations of the
Guarantor under Section 1 of this Guarantee Agreement constitute a present and
continuing guaranty of payment and not of collectability and the Guarantor
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Notes and the Note Agreements, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of any Obligee with respect thereto. The obligations
of the Guarantor under this Guarantee Agreement are independent of the
Guaranteed Obligations, and a separate action or actions may be brought and
prosecuted against the Guarantor to enforce this Guarantee Agreement,
irrespective of whether any action is brought against the Company or any other
Person liable for the Guaranteed Obligations or whether the Company or any other
such Person is joined in any such action or actions. The liability of the
Guarantor under this Guarantee Agreement shall be primary, absolute,
irrevocable, and unconditional irrespective of:
A. any lack of validity or enforceability of any Guaranteed
Obligation, any Note, the Note Agreements or any agreement or
instrument relating thereto;
B. any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from any Note,
the Note Agreements or this Guarantee Agreement;
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C. any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure by the Guarantor or other Person liable, or any other
guarantee, for all or any of the Guaranteed Obligations;
D. any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral or any other assets of the
Company or any other Subsidiary;
E. any change, restructuring or termination of the corporate
structure or existence of the Company or any other Subsidiary; or
F. any other circumstance (including without limitation any
statute of limitations) that might otherwise constitute a defense,
offset or counterclaim available to, or a discharge of, the Company or
the Guarantor, other than payment in full in cash.
This Guarantee Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned by any
Obligee, or any other Person upon the insolvency, bankruptcy or reorganization
of the Company or otherwise, all as though such payment had not been made.
SECTION 3. Waivers. The Guarantor hereby irrevocably
waives, to the extent permitted by applicable law:
A. promptness, diligence, presentment, notice of acceptance
and any other notice with respect to any of the Guaranteed Obligations
and this Guarantee Agreement;
B. any requirement that any Obligee or any other Person
protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right or take any action against the Company or
any other Person or any collateral;
C. any defense, offset or counterclaim arising by reason of
any claim or defense based upon any action by any Obligee;
D. any duty on the part of any Obligee to disclose to the
Guarantor any matter, fact or thing relating to the business, operation
or condition of any Person and its assets now known or hereafter known
by such Obligee; and
E. any rights by which it might be entitled to require suit on
an accrued right of action in respect of any of the
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Guaranteed Obligations or require suit against the Company or the
Guarantor or any other Person.
SECTION 4. Waiver of Subrogation and Contribution. The
Guarantor shall not assert, enforce, or otherwise exercise (A) any right of
subrogation to any of the rights, remedies, powers, privileges or liens of any
Obligee or any other beneficiary against the Company or any other obligor on the
Guaranteed Obligations or any collateral or other security, or (B) any right of
recourse, reimbursement, contribution, indemnification, or similar right against
the Company, and the Guarantor hereby waives any and all of the foregoing
rights, remedies, powers, privileges and the benefit of, and any right to
participate in, any collateral or other security given to any Obligee or any
other beneficiary to secure payment of the Guaranteed Obligations, until such
time as the Guaranteed Obligations have been paid in full.
SECTION 5. Representations and Warranties. The Guarantor
hereby represents and warrants as follows:
A. The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation. The execution, delivery and performance of this
Guarantee Agreement have been duly authorized by all necessary action
on the part of the Guarantor.
B. The execution, delivery and performance by the Guarantor of
this Guarantee Agreement will not (i) contravene, result in any breach
of, or constitute a default under, or result in the creation of any
Lien in respect of any property of the Guarantor or any Subsidiary of
the Guarantor under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or
any other material agreement or instrument to which the Guarantor or
any Subsidiary of the Guarantor is bound or by which the Guarantor or
any Subsidiary of the Guarantor or any of their respective properties
may be bound or affected, (ii) conflict with or result in a breach of
any of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental Authority
applicable to the Guarantor or any Subsidiary of the Guarantor or (iii)
violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Guarantor or any Subsidiary of
the Guarantor.
C. The Guarantor and the Company are members of the same
consolidated group of companies and are engaged in related businesses
and the Guarantor will derive substantial direct and indirect benefit
from the execution and delivery of this Guarantee Agreement.
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SECTION 6. Amendments, Etc. No amendment or waiver of any
provision of this Guarantee Agreement and no consent to any departure by the
Guarantor therefrom shall in any event be effective unless the same shall be in
writing and signed by the Required Holders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided that no amendment, waiver or consent shall, unless in
writing and signed by all Obligees, (i) limit the liability of or release the
Guarantor hereunder, (ii) postpone any date fixed for, or change the amount of,
any payment hereunder or (iii) change the percentage of Notes the holders of
which are, or the number of Obligees, required to take any action hereunder.
SECTION 7. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing and (A) by telecopy if
the sender on the same day sends a confirming copy of such notice by a
recognized overnight delivery service (charges prepaid), or (B) by registered or
certified mail with return receipt requested (postage prepaid), or (C) by a
recognized overnight delivery service (with charges prepaid). Such notice if
sent to the Guarantor shall be addressed to it at the address of the Guarantor
provided below its name on the signature page of this Guarantee Agreement or at
such other address as the Guarantor may hereafter designate by notice to each
holder of Notes, or if sent to any holder of Notes, shall be addressed to it as
set forth in the Note Agreements. Any notice or other communication herein
provided to be given to the holders of all outstanding Notes shall be deemed to
have been duly given if sent as aforesaid to each of the registered holders of
the Notes at the time outstanding at the address for such purpose of such holder
as it appears on the Note register maintained by the Company in accordance with
the provisions of Section 13.1 of the Note Agreements. Notices under this
Section 7 will be deemed given only when actually received.
SECTION 8. No Waiver; Remedies. No failure on the part of any
Obligee to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 9. Continuing Guarantee. This Guarantee Agreement is a
continuing guarantee of payment and performance and shall (A) remain in full
force and effect until payment in full of the Guaranteed Obligations and all
other amounts payable under this Guarantee Agreement, (B) be binding upon the
Guarantor, its successors and assigns and (C) inure to the benefit of and be
enforceable by the Obligees and their successors, transferees and assigns.
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SECTION 10. Jurisdiction and Process; Waiver of Jury Trial.
The Guarantor irrevocably submits to the non-exclusive in personam jurisdiction
of any New York State or federal court sitting in the Borough of Manhattan, The
City of New York, over any suit, action or proceeding arising out of or relating
to this Guarantee Agreement. To the fullest extent permitted by applicable law,
the Guarantor irrevocably waives and agrees not to assert, by way of motion, as
a defense or otherwise, any claim that it is not subject to the in personam
jurisdiction of any such court, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
The Guarantor consents to process being served in any suit,
action or proceeding of the nature referred to in this Section by mailing a copy
thereof by registered or certified mail, postage prepaid, return receipt
requested, to the Guarantor at its address specified in Section 7 or at such
other address of which you shall then have been notified pursuant to said
Section. The Guarantor agrees that such service upon receipt (i) shall be deemed
in every respect effective service of process upon it in any such suit, action
or proceeding and (ii) shall, to the fullest extent permitted by applicable law,
be taken and held to be valid personal service upon and personal delivery to the
Guarantor. Notices hereunder shall be conclusively presumed received as
evidenced by a delivery receipt furnished by the United States Postal Service or
any recognized courier or overnight delivery service.
Nothing in this Section 10 shall affect the right of any
holder of a Note to serve process in any manner permitted by law, or limit any
right that the holders of any of the Notes may have to bring proceedings against
the Guarantor in the courts of any appropriate jurisdiction or to enforce in any
lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
SECTION 11. [Tax Indemnification.
11.1. Payments Without Tax Withholding. All payments
whatsoever by the Guarantor under this Guarantee Agreement shall be made in the
lawful currency of the United States free and clear of, and without reduction or
liability for or on account of, any present or future taxes (whether income,
documentary, sales, stamp, registration, issue, capital, property, excise or
otherwise), levies, imposts, duties, fees, charges, deductions, withholding,
restrictions or conditions or any penalties, interest or additions thereto of
any nature whatsoever (herein called "TAX") unless any withholding or deduction
for or on account of any Tax is required by law.
11.2. Gross-Up for Required Tax Withholding. If the Guarantor
shall be obligated by law to make any such withholding
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or deduction for any Tax imposed, levied, collected, assessed or withheld by or
within the jurisdiction in which the Guarantor is organized or resident for tax
purposes (other than the United States) or any political subdivision or taxing
authority thereof or therein or by any other jurisdiction (or any taxing
authority thereof or therein) other than the United States from or through which
payments under the Guaranteed Obligations by the Guarantor are actually made
(hereinafter a "TAXING JURISDICTION"), then the Guarantor will promptly (i)
notify the affected holders of Guaranteed Obligations of such requirement, (ii)
pay such additional amounts of interest ("GUARANTEE ADDITIONAL AMOUNTS") as may
be necessary so that the net amount received by each holder of Guaranteed
Obligations (including Guarantee Additional Amounts) after such withholding or
deduction will not be less than the amount such holder would have received if
such Taxes had not been withheld or deducted, (iii) make such withholding or
deduction and remit the full amount deducted or withheld to the relevant
authority in accordance with applicable law and (iv) furnish such holder with
the original receipt of such payment from such government or taxing authority
(or such other evidence sufficient under United States Treasury Regulations
1.905-2(a)(2) under the Code (or any successor or subsequent provisions) so as
to allow such holder to verify that such Tax has been paid to such government or
taxing authority). Notwithstanding the provisions of this Section 11, no such
Guarantee Additional Amounts shall be payable for or on account of:
(a) any Tax which would not have been imposed but for (1)
the connection of a holder with the Taxing Jurisdiction (other than the
mere holding of a Note) including the existence of a permanent
establishment or other fixed place of business of such holder in such
Taxing Jurisdiction or (2) the appointment by a holder of a collecting
agent in such Taxing Jurisdiction;
(b) any Tax that is imposed or withheld by reason of the
failure by the holder of any Note, notwithstanding its legal and
practical ability, promptly after becoming a holder of a Note to
provide information concerning the nationality, residence or identity
of such holder or to make such declaration or other similar claim or
report (provided such declaration or claim does not require the holder
to reveal any confidential or proprietary tax return or other
information and does not require the holder to incur any undue expense)
as may be required by a statute, treaty or regulation of the Taxing
Jurisdiction as a precondition to exemption from all or part of such
Tax; and
(c) any combination of clauses (A) and (B) above;
provided further, however, that no Guarantee Additional Amounts shall be payable
(x) in respect of any Guaranteed Obligation held by a holder who is a fiduciary
or a partnership or a beneficial
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owner who is other than the sole beneficial owner of such Guaranteed Obligation
to the extent a beneficiary or settlor with respect to such fiduciary or a
member of such partnership or a beneficial owner would not have been entitled to
such Guarantee Additional Amounts had it been the holder of such Guaranteed
Obligation or (y) in respect of any Guaranteed Obligation in excess of the
amount which the Guarantor would have been obligated to pay if such Guaranteed
Obligation had been beneficially owned at all relevant times by Persons who were
resident in the United States for purposes of the income tax treaty in effect
between the United States and such Taxing Jurisdiction.
If the Guarantor fails to pay any withheld or deducted Taxes
pursuant to clause (iii) of Section 11.2 in accordance with applicable law, then
the Guarantor shall indemnify and hold harmless the affected holder and
reimburse such holder for the amount of Taxes imposed on and paid by such holder
so that the net amount received by such holder after such reimbursement will not
be less than the net amount such holder would have received if Taxes on such
reimbursement had not been imposed, but excluding any Taxes on such holder's net
income generally or based on such holder's capital generally.
11.3. Taxes Imposed by Means Other Than Withholding. If any
Taxes are imposed on a holder of a Guaranteed Obligation (other than Taxes
imposed by the United States, any State thereof or other political subdivision
thereof) with respect to any payment made by the Guarantor hereunder by means
other than deduction or withholding and the Guarantor would be obligated to pay
Guarantee Additional Amounts to such holder hereunder if such Taxes had been
withheld or deducted, the Guarantor shall indemnify and hold harmless each such
holder and will upon notice by such holder and provided that reasonable
supporting documentation is provided, reimburse each such holder for the amount
of (i) any Taxes so levied or imposed and paid to such holder as a result of
payments made under or with respect to the Guaranteed Obligation and (ii) any
Taxes so levied or imposed with respect to any reimbursement under the foregoing
clause (i) so that the net amount received by such holder after such
reimbursement will not be less than the net amount the holder would have
received if Taxes on such reimbursement had not been imposed, but excluding any
Taxes on such holder's net income generally or based on such holder's capital
generally.
11.4. Tax Information Disclosure. For the avoidance of doubt,
nothing herein shall require any Person to disclose any information regarding
its tax affairs or computations to the Guarantor other than as shall be
necessary to permit the Guarantor to determine whether any Guarantee Additional
Amounts would be required to be paid pursuant to the provisions of this Section;
provided, however, that no Person shall be obligated to disclose any of its tax
returns to the Guarantor or any agent of the Guarantor.
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11.5. Reimbursement of Guarantee Additional Amounts by
Holder. If any Taxes imposed on any holder are paid or indemnified against by
the Guarantor under this Section 11, and such holder receives a refund of any
amount of Taxes paid or reimbursed by such Guarantor and such holder is able, in
good faith, to identify the tax refund as being attributable to such payment or
reimbursement, such holder shall pay to such Guarantor an amount equal to such
refund.
Section 12. Judgment Currency. Any payment on account of an
amount that is payable hereunder by the Guarantor in U.S. Dollars which is made
to or for the account of any Obligee in any other currency, whether as a result
of any judgment or order or the enforcement thereof or the realization of any
security or the liquidation of such Guarantor, shall constitute a discharge of
such Guarantor's obligation under this Guarantee Agreement only to the extent of
the amount of U.S. Dollars which such Obligee could purchase in the foreign
exchange markets in London, England, with the amount of such other currency in
accordance with normal banking procedures at the rate of exchange prevailing on
the London Banking Day following receipt of the payment first referred to above.
If the amount of U.S. Dollars that could be so purchased is less than the amount
of U.S. Dollars originally due to such Obligee, the Guarantor agrees, to the
fullest extent permitted by law, to indemnify and save harmless such Obligee
from and against all loss or damage arising out of or as a result of such
deficiency. This indemnity shall, to the fullest extent permitted by law,
constitute an obligation separate and independent from the other obligations
contained in this Guarantee Agreement, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence granted
by such Obligee from time to time and shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum in respect of an
amount due hereunder or under any judgment or order. As used herein the term
"LONDON BANKING DAY" shall mean any day other than Saturday or Sunday or a day
on which commercial banks are required or authorized by law to be closed in
London, England.
SECTION 13.]* Governing Law. This Guarantee Agreement shall
be construed and enforced in accordance with, and the rights of the Guarantor
and the Obligees shall be governed by, the laws of the State of New York
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
--------
* Bracketed Sections 11 and 12 to be inserted if the Guarantor is a Subsidiary
with a jurisdiction of incorporation outside the United States.
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IN WITNESS WHEREOF, the Guarantor has caused this Guarantee
Agreement to be duly executed and delivered as of the date first above written.
[GUARANTOR]
By________________________
Title:
Address:
Attention:
Telephone:
Telecopy:
