Exhibit 10(s)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAWS AND ACCORDINGLY MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR LAWS OR PURSUANT
TO AN EXEMPTION THEREFROM. THE PRINCIPAL AMOUNT OF THIS
NOTE, AND INTEREST IN RESPECT THEREOF, IS SUBORDINATED TO
THE PAYMENT OF ALL SENIOR INDEBTEDNESS AS PROVIDED HEREIN
AND IS SUBJECT TO SET-OFF, AS DESCRIBED IN THIS NOTE.
pamco PRINTED TAPE & lABEL CO., INC.
NON-NEGOTIABLE SUBORDINATED NOTE
DUE JUNE 30, 2001
$1,884,000
---------- Chicago, Illinois
April 14, 1999
FOR VALUE RECEIVED, the undersigned, pamco PRINTED TAPE & LABEL
CO., INC. f/k/a PAMCO Holdings, Inc., a Delaware corporation (together with
its successors, the "Corporation"), hereby promises to pay to the MSB Family
Trust, (together with its successors and permitted assigns, the "Holder"), at
the Holder's office at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, the
aggregate principal amount of ONE MILLION EIGHT HUNDRED EIGHTY FOUR THOUSAND
DOLLARS ($1,884,000) on the installment dates listed in Section 1.2 hereof.
Certain capitalized terms are used in this Note as defined in Section 7. This
Note replaces a Non-Negotiable Subordinated Note dated May 20, 1994 issued by
the Corporation to the Xxxxxxx Xxxxx Xxxxxxxx Family Trust in the original
principal amount of $1,884,000 (the "Prior Note"), and all outstanding and
unpaid amounts payable under the Prior Note shall be deemed transferred to
this Note.
Section 1. Payment.
1.1 Interest. Subject to Section 3, the outstanding principal
amount of this Note shall bear interest (computed on the basis of a 365 or 366
day year, as the case may be) at a rate equal to eight percent (8%) per annum
from (but excluding) the date hereof to (and including) the Maturity Date.
Subject to Section 3, such interest shall be payable (i) semi-annually in
arrears, with respect to each six month period (or portion thereof) ending on
June 30 or December 31 on the 120th day following the end of such six month
period ("Interest Payment Dates"), commencing with the period ending June 30,
1999, and (ii) on the Maturity Date.
1.2 Principal. Subject to Section 3, the Corporation shall pay, on
June 30, 2000, an installment of principal on this Note equal to $942,000 (or
such lesser principal amount then outstanding), and on June 30, 2001, the
entire then outstanding principal amount of this Note.
1.3 Business Days. Whenever payment of principal of, or interest
on, this Note shall be due on a date that is not a Business Day, the date for
payment thereof shall be the next succeeding Business Day and interest due on
the unpaid principal and any other Amounts Payable hereunder shall accrue
during such extension and shall be payable on such succeeding Business Day.
Section 2. Prepayments; Suspension of Payment.
2.1 Optional Prepayment. The Corporation shall have the right to
prepay the principal amount of this Note in whole or in part at any time, or
from time to time, without payment of any premium or penalty whatsoever,
provided that any such prepayments shall be accompanied by all interest
accrued on this Note to the date of prepayment, and any such prepayment shall
be applied to reduce the Corporation's principal payment obligations under
Section 1.2 in the order of maturity of such payment obligations; provided,
however, that so long as any Senior Indebtedness remains outstanding and
unpaid, any commitment to provide Senior Indebtedness is outstanding, or any
other amount is owing to the holders of Senior Indebtedness, this Note may not
be prepaid in whole or in part, without the written consent of the holders of
Senior Indebtedness.
2.2 Suspension of Payment. The Corporation shall be entitled to
suspend payment of any Amounts Payable hereunder for any obligations or
liabilities of the Holder to the Corporation or any claims by the Corporation
against the Holder including, without limitation, any obligations or
liabilities to the Corporation under the Subscription Agreement, the Purchase
Agreement (subject to the provisions of Section 11.01 of the Purchase
Agreement) or the Noncompetition Agreement. Upon (i) consent by the Holder;
(ii) adjudication to a final nonappealable judgment or settlement of a claim
by a third party against the Corporation (which forms the basis of the
Corporation's claim against Holder); or (iii) adjudication to a final
nonappealable judgment or settlement of a claim by the Corporation against the
Holder (which is not based on a third party claim), the Corporation shall have
the right to set off and reduce any Amounts Payable hereunder (including
amounts previously suspended) for any obligations or liabilities of the Holder
to the Corporation or any claims by the Corporation against the Holder
including, without limitation, any obligations or liabilities to the
Corporation under the Subscription Agreement, the Purchase Agreement or the
Noncompetition Agreement. Any suspension, set off or reduction shall apply to
the next payment due and, if principal and interest are both then due and
payable, the suspension, set off or reduction shall apply to interest first.
In the event that any amount or part of any amount of principal suspended is
ultimately set off, no interest shall be paid after the date of suspension on
the amount or part of the amount of principal ultimately set off. The Holder,
by accepting this Note, hereby acknowledges and agrees to the foregoing
provisions and any subsequent transferee or successor shall be bound by the
foregoing. For purposes of this Section 2.2, Holder shall include Xxxxxxx X.
Xxxxxxxx regardless of the current or then actual holder.
Section 3. Free Cash Flow; Penalty Interest Provisions.
3.1 Payment Limitation. Notwithstanding any other provision of this
Note, the Corporation shall only be required to pay interest, principal or any
other Amounts Payable in respect of this Note if and to the extent the
Corporation's Free Cash Flow for the Corporation's four quarters immediately
preceding the required payment date is sufficient to make such payment and all
payments due under the Other Seller Subordinated Note. If the Corporation's
Free Cash Flow for such four quarters is not sufficient to make such payments
and all payments due under the Other Seller Subordinated Note, then such
payments will not be made nor be required to be made under this Note when
otherwise due, and the Corporation's payment obligation under this Note with
respect to such payments will be deferred as provided in this Section 3, and
such deferral of payment will not be an Event of Default under this Note,
provided that the Maturity Date will not be deferred under this Section 3 for
more than two years (i.e. not later than June 30, 2003), at which time, all
principal of, interest on and other Amounts Payable in respect of this Note
will be due and payable (A) without further regard to this Section 3.1, but
(B) with regard to Sections 3.3 and 3.4.
3.2 Interest Limitation. If, as a result of Section 3.1, the
Corporation does not pay interest on an Interest Payment Date, then such
interest will be deferred and be paid pursuant to Section 3.4; provided, that
if the Penalty Interest Provisions of Section 3.5 are waived by Holder, the
deferred interest shall not bear interest and the amount of such deferred
interest in the aggregate will not in any event exceed $979,680 ("Maximum
Interest"). Any deferred interest that exceeds the Maximum Interest will not
accrue or be payable under this Note and will be automatically eliminated.
3.3 Principal and Amounts Payable Deferral. If, as a result of
Section 3.1, the Corporation does not pay principal or any other Amounts
Payable (other than interest) on any required payment date, then such
principal and Amounts Payable will be deferred and not be due or payable until
the Maturity Date. If the Penalty Interest Provisions of Section 3.5 are
waived, the deferred principal and Amounts Payable will not bear interest.
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3.4 Interest Deferral. If, as a result of Section 3.1, the
Corporation does not pay interest on any required payment date, then such
interest will be deferred and not be due or payable until (i) the Corporation
has paid all accrued interest on and other charges or expenses in connection
with Senior Indebtedness, and (ii) the amount of outstanding obligations for
principal to holders of Senior Indebtedness is equal to or less than (A) the
maximum amount of outstanding obligations for principal due holders of Senior
Indebtedness at any time after the issuance of this Note less (B) $21,500,000.
If the Penalty Interest Provisions of Section 3.5 are waived, the deferred
interest will not bear interest.
3.5 Penalty Interest Provisions. Notwithstanding any provision of
this Note to the contrary, unless waived by the Holder, the following penalty
interest provisions (the "Penalty Interest Provisions") shall apply.
(a) If interest due under this Note is deferred pursuant to
Section 3 or payment is prohibited pursuant to Section 6.2, then
such deferred interest shall accrue interest at a rate of ten
percent (10%) per annum compounded annually until paid.
(b) If principal is deferred pursuant to Section 3 or payment
is prohibited pursuant to Section 6.2, such deferred principal shall
accrue interest at a rate of eight percent (8%) per annum compounded
annually until paid.
(c) The cap on interest in Section 3.2 shall not apply.
(d) Any payments under this Note shall first be applied to
interest on which additional interest is accruing and being
compounded prior to being otherwise allocated as provided in Section
3.6.
3.6 Allocation. If the Corporation's Free Cash Flow for any four
quarters is sufficient to pay some, but not all, of the required payments
under this Note and the required payments due under the Other Seller
Subordinated Note, then such available Free Cash Flow will be allocated first
to required principal payments if then due, second to required interest
payments, and then to required payments of any other Amounts Payable,
provided, further, such available Free Cash Flow will be allocated 47.1% to
this Note and 52.9% to the Other Seller Subordinated Note.
Section 4. Covenants. The Corporation covenants and agrees that, so
long as any Amounts Payable under this Note remains unpaid:
4.1 Information. The Corporation shall provide to the Holder, as
soon as practicable and in any event within 120 days after the end of each
fiscal year of the Corporation, a consolidated balance sheet of the
Corporation and its Subsidiaries as at the end of such fiscal year, and the
related consolidated statements of income and cash flow for such fiscal year,
prepared in accordance with generally accepted accounting principles, which
will include a calculation of Free Cash Flow for that fiscal year.
4.2 Merger. The Corporation will not consolidate or merge with or
into any other corporation, other than (a) the merger or consolidation of a
Subsidiary with or into the Corporation, (b) a merger pursuant to which the
Corporation is the surviving corporation, or (c) a merger or consolidation in
which the Corporation is not the surviving corporation and pursuant to which
the surviving or consolidated entity assumes the Corporation's covenants and
obligations under this Note.
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4.3 Sale of Assets. The Corporation will not sell or otherwise
dispose of all or substantially all of its assets in a single transaction or
series of related transactions unless (a) in connection therewith this Note is
prepaid, or (b) the acquiring entity expressly assumes the Corporation's
obligations under this Note. Upon the assumption by the acquiring entity of
the Corporation's obligations under this Note, the Corporation shall be
released and discharged from its obligations and liabilities hereunder,
without the requirement of further notice or consent from the Holder,
provided, however, if the acquiring entity does not have (i) a net worth
(total assets less total liabilities) immediately after acquiring the assets
of the Corporation that is equal to or in excess of the greater of (A) the net
worth of the Corporation immediately prior to the sale or disposal or (B)
$1,000,000; and (ii) a Required Ratio (as defined below) less than or equal to
4.3:1, then the Corporation shall not be released or discharged without the
consent of the Holder, which consent shall not be unreasonably withheld.
"Required Ratio" shall mean (x) the total of all interest bearing indebtedness
for borrowed money less all Amounts Payable under this Note and under the
Other Seller Subordinated Note divided by (y) all Amounts Payable under this
Note and under the Other Seller Subordinated Note plus net worth.
Section 5. Defaults
5.1 Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Corporation shall fail to pay within ten Business Days
of the due date thereof any principal of this Note or shall fail to
pay within ten Business Days of the due date thereof any interest or
any other Amounts Payable hereunder and the same shall not have been
cured within 20 days after written notice thereof has been given by
the Holder to the Corporation;
(b) the Corporation shall fail to observe or perform any
covenant or agreement contained in this Note (other than those
covered by clause (a) above) and the same shall not have been cured
within 45 days after written notice thereof has been given by the
Holder to the Corporation, provided, however, an Event of Default
shall not have occurred or be continuing if efforts to cure have
commenced within such 45 days and if such efforts to cure continue
to be diligently pursued after expiration of such 45 day period;
(c) the Corporation shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors; or
(d) an involuntary case or other proceeding shall be commenced
against the Corporation seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period
of 90 days; or an order for relief shall be entered against the
Corporation under the Federal bankruptcy laws as now or hereafter in
effect;
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then, and in every such event, subject to the provisions of Section 6, the
Holder may, by notice to the Corporation and to the holders of Senior
Indebtedness, declare the principal amount of this Note together with accrued
interest thereon, to be, and such amounts and all other Amounts Payable shall
thereupon become, due and payable on the tenth Business Day following delivery
of such notice to the Corporation and to the holders of Senior Indebtedness
without presentment, demand, protest or further notice of any kind, all of which
are hereby waived by the Corporation; provided, that (x) the Events of Defaults
specified in paragraphs (a) and (b) will be subject to Section 3, and (y) in the
case of any of the Events of Default specified in paragraph (c) or (d), the
entire principal and all other Amounts Payable shall immediately (and without
notice) become due and payable without presentment, demand, protest or notice of
any kind, all of which are hereby waived by the Corporation.
Section 6. Subordination.
6.1 Loans Subordinated to Senior Indebtedness. Notwithstanding any
provision of this Note to the contrary, the Corporation covenants and agrees,
and the Holder by acceptance of this Note likewise covenants and agrees, that
all Amounts Payable shall be subordinated to the extent set forth in this
Section 6 to the prior payment in full, in cash or cash equivalents
satisfactory to the holders of Senior Indebtedness, of all Senior Indebtedness
(except with respect to payments already made in proper and full compliance
with the terms of this Note). This Section 6 shall constitute a continuing
offer to and covenant with all persons who become holders of, or continue to
hold, Senior Indebtedness (irrespective of whether such Senior Indebtedness
was created or acquired before or after the issuance of this Note). The
provisions of this Section 6 are made for the benefit of all present and
future holders of Senior Indebtedness (and their successors and assigns), and
shall be enforceable by them directly against the Holder.
6.2 Priority and Payment Over of Proceeds in Certain Events.
(a) Upon any payment or distribution of assets of the Corporation,
whether in cash, property, securities or otherwise, in the event of any
dissolution, winding up or total or partial liquidation, reorganization,
arrangement, adjustment, protection, relief or composition, or assignment for
the benefit of creditors of the Corporation, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership, reorganization, relief or other
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of all or part of the assets and liabilities of the Corporation
(the foregoing events herein collectively referred to as an "Insolvency
Event"), all Senior Indebtedness shall first be paid in full, in cash, or
payment provided for in cash equivalents in a manner satisfactory to the
holders of Senior Indebtedness, before the Holder shall be entitled to receive
any payment or distribution of assets of the Corporation relating to any
Amounts Payable. Upon any Insolvency Event, any payment or distribution of
assets of the Corporation (not previously made in proper and full compliance
with the terms of this Note), whether in cash, property, securities or
otherwise, to which the Holder would be entitled relating to any Amounts
Payable, except for the provisions of this Section 6, shall be made by the
Corporation or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other person making such payment or distribution, directly to the
holders of the Senior Indebtedness or their representatives for application to
the payment or prepayment of all such Senior Indebtedness in full after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness.
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(b) If (x) there has occurred and is continuing a default in the
payment of all or any portion of any Senior Indebtedness, unless and until
such default shall have been cured or waived, the Corporation shall not make
any payment on or with respect to any Amounts Payable or acquire this Note (or
any portion thereof) for cash, property, securities or otherwise; or (y) an
event (not involving the non-payment of any Senior Indebtedness) shall have
occurred or, with the giving of notice, or passage of time, or both, would
occur, that would allow holders of any Senior Indebtedness to accelerate or
otherwise demand the payment thereof, and the holders of the Senior
Indebtedness give notice of such event to the Corporation and the Holder (the
date that such notice is received by the Corporation is the "Notice Date"),
the Corporation shall not make any payment on or with respect to any Amounts
Payable or acquire this Note (or any portion hereof) for cash, property,
securities or otherwise during the period (the "Blockage Period") commencing
on the Notice Date and ending on the earlier of (1) two years after the Notice
Date if at the end of such two year period such event is not the subject of
judicial proceedings and such Senior Indebtedness shall not have been
accelerated, (2) the date such event is cured or waived to the satisfaction of
the holders of the Senior Indebtedness, (3) the date the holders of such
Senior Indebtedness shall have given notice to the Corporation of the
voluntary termination of the Blockage Period, or (4) June 30, 2003. By virtue
of accepting this Note and the benefits hereof, during any time period during
which payment of any part of Amounts Payable due under this Note is prohibited
by any of the terms of this Note, the Holder shall not be entitled, and will
not take any action, including any judicial process, to accelerate, demand
payment or enforce any Indebtedness in respect of this Note or any other claim
with regard to any Amounts Payable until after June 30, 2003. For purposes of
clause (x) of the first sentence of this Section 6.2(b), (A) no default in the
payment of the principal portion of the Senior Indebtedness shall be
considered to have occurred so long as principal payments in at least the
amounts set forth in Exhibit A have occurred (and such amounts have not been
reborrowed by the Corporation); and (B) any payments of principal on the
Senior Indebtedness shall be considered payments of the principal amounts set
forth in Exhibit A in the order of maturity.
(c) If, notwithstanding the foregoing provisions of Section 6
prohibiting payments or distributions, the Holder shall have received any
payment of, or on account of, any Amounts Payable that was prohibited by this
Section 6, before all Senior Indebtedness shall have been paid in full, then
and in such event such payments or distributions shall be received and held in
trust for the holders of the Senior Indebtedness and promptly paid over or
delivered to the holders of the Senior Indebtedness remaining unpaid thereof
to the extent necessary to pay in full, in cash or cash equivalents
satisfactory to the holders of the Senior Indebtedness, such Senior
Indebtedness in accordance with its terms after giving effect to any
concurrent payment or distribution to the holder of such Senior Indebtedness,
provided, that any such payment which is, for any reason, not so paid over or
delivered shall be held in trust by the Holder for the holders of Senior
Indebtedness.
(d) So long as any Senior Indebtedness remains outstanding, or the
commitment to make credit extensions of said Senior Indebtedness shall not
have been terminated, the Holder will not be entitled to take, demand or
receive, directly or indirectly, by setoff, redemption, purchase or in any
manner, any voluntary prepayment or other payment of any Amounts Payable in
amounts or in a manner which are in violation of the provisions of this
Section 6.
(e) Upon any payment or distribution of assets referred to in
Section 6.2(a), the Holder shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, and upon a certificate
of the receiver, trustee in bankruptcy, liquidating trustee, agent or other
person making any such payment or distribution of assets, delivered to the
Holder for the purpose of ascertaining the persons entitled to participate in
such distribution of assets, the holders of Senior Indebtedness and other
Indebtedness of the Corporation, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Section 6.
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6.3 Rights of Holders of Senior Indebtedness Not To Be Impaired,
etc.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce the subordination and other terms and conditions
provided herein shall at any time in any way be prejudiced or impaired by any
act or failure to act by any such holder, or by any noncompliance by the
Corporation, with the terms and provisions and covenants herein regardless of
any knowledge thereof any such holder may have or otherwise be charged with.
(b) This Section 6 may not be amended without the written consent
of each holder of the Senior Indebtedness and of the Holder, and any purported
amendment without such consent shall be void. No holder of Senior Indebtedness
shall be prejudiced in such holder's right to enforce the subordination and
other terms and conditions of this Note by any act or failure to act by the
Corporation or anyone in custody of its assets or property.
6.4 Subrogation. Subject to and upon the payment in full of all
Senior Indebtedness, the Holder shall be subrogated, to the extent of payments
or distributions made to the holders of Senior Indebtedness pursuant to or by
reason of this Section 6, to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of assets of the Corporation
made on such Senior Indebtedness until all amounts due under this Note shall
be paid in full; and for the purposes of such subrogation, no payments or
distributions to holders of such Senior Indebtedness of any cash, property or
securities to which the Holder would be entitled except for the provisions of
this Section 6, and no payment over pursuant to the provisions of this Section
6 to holders of such Senior Indebtedness by the Holder, shall, as among the
Corporation, its creditors (other than holders of such Senior Indebtedness)
and the Holder be deemed to be a payment by the Corporation to or on account
of such Senior Indebtedness, it being understood that the provisions of this
Section 6 are solely for the purpose of defining the relative rights of the
holders of such Senior Indebtedness, on the one hand, and the Holder, on the
other hand.
6.5 Obligations of the Corporation Unconditional. Nothing contained
in this Note is intended to or shall impair, as between the Corporation and
the Holder, the obligation of the Corporation, which is absolute and
unconditional, to pay to the Holder all Amounts Payable, as and when the same
shall become due and payable in accordance with their terms, or to affect the
relative rights of the Holder and other creditors of the Corporation (other
than the holders of Senior Indebtedness), except as provided in Section 6. 2
(b).
6.6 Section 6 Not To Prevent Events of Default. The failure to make
a payment of any Amount Payable by reason of any provision of this Section 6
shall not be construed as preventing the occurrence of an Event of Default
under Section 5.1 hereof, except as provided in Section 6.2(b).
6.7 Additional Rights of Holders of Senior Indebtedness. If the
Senior Indebtedness has not been paid in full, in cash or cash equivalents
satisfactory to the holders of Senior Indebtedness, at a time in which the
Corporation is subject to an Insolvency Event, (a) the holders of the Senior
Indebtedness are hereby irrevocably authorized, but shall have no obligation,
to demand, xxx for, collect and receive every payment or distribution received
in respect of any such Insolvency Proceeding and give acquittance therefor and
to file claims and proofs of claim, as their interests may appear, and (b) the
Holder shall duly and promptly take, for the account of the holders of the
Senior Indebtedness, as their interests may appear, such actions as the
holders of the Senior Indebtedness may request to collect and receive all
Amounts Payable by the Corporation in respect of this Note and to file
appropriate claims or proofs of claim in respect of this Note. Upon request by
the Corporation, the Holder of this Note shall deliver to the holders of
Senior Indebtedness or parties contemplating becoming holders of Senior
Indebtedness a written statement confirming that (i) the provisions (including
the subordination provisions) of this Note are in full force and effect; and
(ii) that such party is or will be entitled to rely upon and enjoy the
benefits of the provisions (including the subordination provisions) of this
Note as a holder of Senior Indebtedness.
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6.8 Senior Indebtedness Changes. By virtue of accepting this Note
and the benefits hereof, the Holder hereby waives any and all notice of
renewal, extension or accrual of any of the Senior Indebtedness, present or
future, and agrees and consents that without notice to or consent of the
Holder: (a) the obligations and liabilities of the Corporation or any other
party or parties under the Senior Indebtedness may, from time to time, in
whole or in part, be renewed, refinanced, replaced, extended, refunded,
modified, amended, accelerated, compromised, supplemented, terminated,
increased, decreased, sold, exchanged, waived or released; (b) the holders of
Senior Indebtedness and their representatives may exercise or refrain from
exercising any right, remedy or power granted by any document creating,
evidencing or otherwise related to the Senior Indebtedness or at law, in
equity, or otherwise, with respect to the Senior Indebtedness or in connection
with any collateral security or lien (legal or equitable) held, given or
intended to be given therefor (including, without limitation, the right to
perfect any lien or security interest created in connection therewith); (c)
any and all collateral security and/or liens (legal or equitable) at any time,
present or future, held, given or intended to be given for the Senior
Indebtedness, and any rights or remedies of the holders of Senior Indebtedness
and their representatives in respect thereof, may, from time to time, in whole
or in part, be exchanged, sold, surrendered, released, modified, perfected,
unperfected, waived or extended by the Holders and their representatives; (d)
any balance or balances of funds with any holder of Senior Indebtedness at any
time standing to the credit of the Corporation or any guarantor of any of the
Senior Indebtedness may, from time to time, in whole or in part, be
surrendered or released; all as the holders of Senior Indebtedness, their
representatives or any of them may deem advisable and all without impairing,
abridging, diminishing, releasing or affecting the subordination to the Senior
Indebtedness provided for herein; and (e) the Corporation may incur any amount
or type of Senior Indebtedness (including Senior Indebtedness owed to
Affiliates), or modify, restate, refinance, replace or amend any Senior
Indebtedness from time to time, on terms and conditions acceptable to the
Corporation, without notice to or approval by the Holder. Notwithstanding
anything above to the contrary, the amount of Senior Indebtedness shall not
exceed $30,000,000.
6.9 Waivers. In the event the holders of Senior Indebtedness elect
to exercise their remedies to liquidate any collateral given to secure the
Senior Indebtedness, the Holder hereby waives any right it may have to contest
the validity of or the value obtained as a result of the exercise of remedies
by the holders of Senior Indebtedness, including, but not limited to, a
foreclosure, a sale pursuant to the Uniform Commercial Code or the acceptance
by the holders of Senior Indebtedness in lieu of foreclosure. The Holder
further waives any right it may have either in or out of any bankruptcy or
similar proceeding to challenge any action taken by the holders of Senior
Indebtedness as either a preference or fraudulent conveyance and further
agrees not to take any active role in such a proceeding other than the filing
of claim in any such proceeding, which claim shall be subordinate (to the
extent set forth above) to the claims of the holders of Senior Indebtedness.
Section 7. Definitions. For purposes of this Note, the following
terms have the meanings set forth below.
"Affiliate" means Jordan Industries, Inc. and its respective direct
and indirect Subsidiaries, and any other person that directly, or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with them.
"Amounts Payable" means all principal of, interest on, premium, if
any, fees, costs, expenses, indemnities or any other amounts due from the
Corporation under this Note, and all claims against or liabilities of the
Corporation in respect of this Note.
"Business Day" means any day except a Saturday, Sunday or other
days on which commercial banks in New York City are required or authorized by
law to close.
"Capital Expenditures" means the capital expenditures of the
Corporation, determined in accordance with generally accepted accounting
principles, consistently applied.
"Closing Date" shall mean the date on which the transactions
contemplated by the Purchase Agreement are consummated.
"Default" means any condition or event that constitutes an Event of
Default or that with notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
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"Free Cash Flow" means, for any four quarter period (i) the
consolidated net income (or net deficit) of the Corporation and its
subsidiaries (excluding, however, (A) all extraordinary and other
non-recurring items of income, but not loss, and (B) all interest income as
reflected in the Corporation's financial statements); plus (ii) interest
(including deferred financing fees and expense) and other expense in respect
of the Corporation's Indebtedness (including intercompany Indebtedness or
Indebtedness owed to Affiliates) charged, accrued or otherwise allocated
against such net income; plus (iii) expenses for amortization charged, accrued
or otherwise allocated against such net income (including amortization of the
noncompetition payment made pursuant to the Noncompetition Agreement); plus
(iv) expenses for depreciation (including increased depreciation and increased
inventory values resulting from purchase accounting in connection with
acquisitions and business combinations) charged, accrued or otherwise
allocated against such net income; plus (v) any reductions in Working Capital
from the beginning to the end of such period; minus (vi) payments of interest
and principal on Indebtedness (other than required interest and principal
payments on this Note and the Other Seller Subordinated Note paid or accrued
during the last (i.e., most recent) two quarters of such four quarter period,
and, with respect to the Short Year, other than all interest and principal
payments on this Note and the Other Seller Subordinated Note paid or accrued
during the Short Year) paid or accrued during such period or otherwise payable
on the applicable payment date, provided, however, without the prior consent
of Holder, (A) the aggregate amount of the principal payments on the Senior
Indebtedness included in this calculation of Free Cash Flow shall equal the
amount set forth in Exhibit A for the period in question, whether or not paid
during such period; and (B) the amount of interest on Senior Indebtedness
shall not exceed that amount that would be paid or accrued if rate of interest
was 10.75% per annum (or 12.75% per annum if such rate is then being paid
pursuant to the terms of such Senior Indebtedness); minus (vii) any increases
in Working Capital from the beginning to the end of such period; minus (viii)
Capital Expenditures during such period. Free Cash Flow will reflect expenses
resulting from the Management Consulting Agreement between the Corporation and
TJC Management Corporation and the Management Consulting Agreement between the
Corporation and SPL Holdings, Inc. f/k/a J2, Inc. Free Cash Flow will be
determined by the Corporation's Board of Directors by reference to the
Corporation's financial statements, prepared in accordance with generally
accepted accounting principles, consistently applied. Free Cash Flow shall
always be calculated on the basis of the rolling four quarters prior to the
date for which Free Cash Flow is being calculated.
"Indebtedness" means any indebtedness (including, without
limitation, Senior Indebtedness) whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof) or
representing the deferred and unpaid balance of the purchase price of any
property (including pursuant to capital leases), and any financial hedging
obligations, if and to the extent such indebtedness (other than a financial
hedging obligation) would appear as a liability upon a balance sheet of such
person prepared on a consolidated basis in accordance with generally accepted
accounting principles, other than a trade payable or accrued expense, and also
includes, to the extent not otherwise included, the guarantee of items that
would be included within this definition.
"Maturity Date" means June 30, 2001 subject to extension to a later
date as provided by the terms of this Note, but in no event shall it mean a
date later than June 30, 2003.
"Noncompetition Agreement" means the Employment and Noncompetition
Agreement between the Corporation and Xxxxxxx X. Xxxxxxxx dated as of the
Closing Date.
"Note" means this Non-Negotiable Subordinated Note due June 30,
2001.
"Other Seller Subordinated Note" shall mean the Non-Negotiable
Subordinated Note in the original principal amount of $2,116,000 issued by the
Corporation to the MSB Family Trust on the Closing Date.
9
"Purchase Agreement" means the Agreement for Purchase and Sale of
Stock dated as of May 19, 1994, among Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxxx,
as co-trustees of the Xxxxxxx Xxxxx Xxxxxxxx Family Trust UTI dated August 12,
1981, as amended, Xxxxxx Xxxxxxxxx and Xxxxxxx X. Xxxxxxxx, as co-trustees of
the MSB Family Trust dated June 25, 1993, as amended, Xxxxxxx X. Xxxxxxxx and
the Corporation as the same has been or may be amended from time to time.
"Senior Indebtedness" shall mean the principal, interest (including
any interest accruing subsequent to an event specified in Sections 5.1(c) and
5.1(d)), premium, if any, fees (including, without limitation, any commitment,
agency, facility, structuring, restructuring or other fee), costs, expenses,
indemnities, and other amounts due on or in connection with any Indebtedness
of the Corporation (including, without limitation, intercompany Indebtedness),
now or herewith incurred, or any documents executed under or in connection
therewith, and any amendments, modifications, deferrals, renewals or
extensions of such Indebtedness, and any amounts owed in respect of any
Indebtedness incurred in refinancing, replacing or refunding the foregoing
(including any refinancing, replacing or refunding with new lenders), unless
the terms of such Indebtedness expressly provide that such Indebtedness is not
Senior Indebtedness with respect to this Note, provided, however, in no event
shall the amount of Senior Indebtedness exceed $30,000,000. Indebtedness owed
to Affiliates will be Senior Indebtedness for purposes of this Note.
Notwithstanding anything herein to the contrary, Senior Indebtedness shall
include any payables, accrued expenses, fees or other amounts due to SPL
Holdings, Inc. f/k/a J2, Inc., Jordan Industries, Inc., TJC Management
Corporation or any affiliate of such entities. Notwithstanding anything herein
to the contrary, none of the obligations or liabilities under or in connection
with the Other Seller Subordinated Note or this Note shall be included in
Senior Indebtedness.
"Subscription Agreement" means the Subscription Agreement between
the Corporation, SPL Holdings, Inc. f/k/a J2, Inc. and Xxxxxxx X. Xxxxxxxx
dated as of the Closing Date.
"Subsidiary" of a person means any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the Board of Directors or other persons performing similar
functions are at the time directly or indirectly owned by such person.
"Working Capital" means the difference of (a) the sum of
Corporation's net account receivables, inventories (net of reserves), and
prepaid expenses, minus (b) the sum of accounts payable and accrued expenses,
determined in accordance with generally accepted accounting principles,
consistently applied.
Section 8. Miscellaneous.
8.1 Notices. All notices, requests and other communications to any
party hereunder shall be in writing and shall be delivered personally, sent by
facsimile transmission or sent by certified, registered or express mail,
postage prepaid, and shall be deemed given when so delivered personally, or
sent by facsimile transmission, or if mailed or sent by overnight courier,
upon receipt thereof, as follows:
If to the Corporation to:
Xxxxxx X. Xxxxx
c/o SPL Holdings, Inc. f/k/a J2, Inc.
ArborLake Centre, Suite 550
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
10
with a copy to:
G. Xxxxxx Xxxxxx, Esq.
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 816-531-7545
If to the Holder, to:
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a copy to:
Xxxxxx Xxxxxxxxx, Esq.
Xxxxxxxxx & Janger
00 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Telephone: 000-000-0000
Telecopier: 000-000-0000
Each party may, by notice given in accordance with this Section to the other
party, designate another address or person for receipt of notices hereunder.
8.2 No Waivers. No failure or delay by the Holder in exercising any
right, power or privilege hereunder or under this Note shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law. No notice to or demand on
the Corporation in any case shall entitle the Corporation to any other or
further notice or demand in related or similar circumstances requiring such
notice.
8.3 Amendments and Waivers. Any provision of this Note may be
amended or waived if, but only if, such amendment or waiver is in writing,
signed by the Corporation and the Holder.
8.4 Successors and Assigns. The provisions of this Note shall be
binding upon and inure to the benefit of the Holder and its respective
successors and permitted assigns. Without the prior written consent of the
Corporation and the holders of Senior Indebtedness, the Holder of this Note
agrees that it will not (a) sell, assign, pledge or otherwise transfer, in
whole or in part, directly or indirectly, this Note or any interest therein or
(b) create, incur or suffer to exist any security interest, lien, charge or
other encumbrance whatsoever upon this Note. Such consent shall not be
unreasonably withheld in connection with a request for an assignment involving
a spouse of Xxxxxxx X. Xxxxxxxx or an assignee who is the mother of Xxxxxxx X.
Xxxxxxxx or lineal descendants of the mother of Xxxxxxx X. Xxxxxxxx or an
inter-vivos trust for the benefit of such spouse, mother or lineal descendant.
Without limitation, reasonable conditions to any transfer may include the
requirement for an opinion of counsel as to compliance of any requested
assignment with applicable federal and state securities laws. If requested by
a holder of Senior Indebtedness as part of any consent, the assignee or
transferee of the Holder shall agree in writing to be bound by all of the
terms of this Note. The holder hereof hereby waives proof of reliance hereon
by the holders of Senior Indebtedness.
8.5 Replacement Note. Upon receipt of evidence reasonably
satisfactory to the Corporation of the loss, theft, destruction or mutilation
of this Note and of a letter of indemnity reasonably satisfactory to the
Corporation from the Holder and upon reimbursement to the Corporation of all
reasonable expenses incident thereto, and upon surrender or cancellation of
this Note, if mutilated, the Corporation will make and deliver a new Note of
like tenor in lieu of such lost, stolen, destroyed or mutilated Note.
8.6 Company Obligations. The Holder agrees and acknowledges that
this Note and Corporation's obligations hereunder and for all Amounts Payable
are solely obligations and liabilities of the Corporation. None of the
Corporation's directors, officers, employees, stockholders, advisors,
consultants and affiliates or any other persons shall be obligated or liable
in respect of this Note or any Amounts Payable, and Holder hereby releases
them from any such obligation of liability.
11
8.7 LITIGATION. THIS NOTE SHALL BE GOVERNED BY, CONSTRUED, APPLIED
AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS,
AND NO DOCTRINE OF CHOICE OF LAW SHALL BE USED TO APPLY ANY LAW OTHER THAN
THAT OF ILLINOIS, AND NO DEFENSE, COUNTERCLAIM OR RIGHT OF SET-OFF GIVEN OR
ALLOWED BY THE LAWS OF ANY OTHER STATE OR JURISDICTION, OR ARISING OUT OF THE
ENACTMENT, MODIFICATION OR REPEAL OF ANY LAW, REGULATION, ORDINANCE OR DECREE
OF ANY FOREIGN JURISDICTION, BE INTERPOSED IN ANY ACTION HEREON. SUBJECT TO
SECTION 8.8, THE PARTIES AGREE THAT ANY ACTION OR PROCEEDING TO ENFORCE OR
ARISING OUT OF THIS NOTE MAY BE COMMENCED IN THE STATE COURTS, OR IN THE
UNITED STATES DISTRICT COURTS IN CHICAGO, ILLINOIS. THE PARTIES CONSENT TO
SUCH JURISDICTION, AGREE THAT VENUE WILL BE PROPER IN SUCH COURTS AND WAIVE
ANY OBJECTIONS BASED UPON FORUM NON CONVENIENS. THE CHOICE OF FORUM SET FORTH
IN THIS SECTION 8.7 SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY
ACTION UNDER THIS AGREEMENT IN ANY OTHER JURISDICTION.
8.8 ARBITRATION. THE HOLDER HEREBY WAIVES AND SHALL NOT SEEK JURY
TRIAL IN ANY LAWSUIT, PROCEEDING, CLAIM, COUNTERCLAIM, DEFENSE OR OTHER
LITIGATION OR DISPUTE UNDER OR IN RESPECT OF THIS NOTE. THE HOLDER AGREES THAT
ANY SUCH DISPUTE RELATING TO OR IN RESPECT OF THIS NOTE, ITS NEGOTIATION,
EXECUTION, PERFORMANCE, SUBJECT MATTER, OR ANY COURSE OF CONDUCT OR DEALING OR
ACTIONS UNDER OR IN RESPECT OF THIS NOTE, SHALL BE SUBMITTED TO, AND RESOLVED
EXCLUSIVELY PURSUANT TO ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL
ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. SUCH ARBITRATION
SHALL TAKE PLACE IN CHICAGO, ILLINOIS AND SHALL BE SUBJECT TO THE SUBSTANTIVE
LAW OF THE STATE OF ILLINOIS. DECISIONS PURSUANT TO SUCH ARBITRATION SHALL BE
FINAL, CONCLUSIVE AND BINDING ON THE PARTIES. UPON THE CONCLUSION OF
ARBITRATION, THE PARTIES MAY APPLY TO ANY COURT OF THE TYPE DESCRIBED IN
SECTION 8.7 TO ENFORCE THE DECISION PURSUANT TO SUCH ARBITRATION.
PAMCO PRINTED TAPE & lABEL CO., INC.
By___________________________________
Xxxxxx X. Xxxxxxxxxxx
Assistant Secretary and Vice President
12
EXHIBIT A TO
NON-NEGOTIABLE SUBORDINATED NOTE
--------------------------------
Senior Indebtedness - Principal Amounts
(stated in millions of dollars)
First Second First Second First Second First Second
6 Mo. 6 Mo. 6 Mo. 6 Mo. 6 Mo. 6 Mo. 6 Mo. 6 Mo.
1999 1999 2000 2000 2001 2001 2002 2002
---- ---- ---- ---- ---- ---- ---- ----
1.575 0.950 0.950 1.350 1.350 2.850 2.850 Outstanding
Principal
Balance
13
