Exhibit 10.14
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JOINT SETTLEMENT AGREEMENT
by and among
PENSION BENEFIT GUARANTY CORPORATION,
THE AMPEX GROUP,
THE LIMITED HILLSIDE GROUP, and
THE SHERBORNE GROUP
November 22, 1994
TABLE OF CONTENTS
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Page
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RECITALS ...........................................................................................1
ARTICLE I DEFINITIONS................................................................................4
Section 1.1 Definitions...........................................................................4
Section 1.2 Accounting Terms.....................................................................17
Section 1.3 Terms Generally......................................................................18
Section 1.4 References to Statutes...............................................................18
ARTICLE II LIABILITY FOR PLANS.......................................................................18
Section 2.1 Primary Liability for the Plans......................................................18
Section 2.2 Back-up Liability for the Plans......................................................18
Section 2.3 Continuing Liability.................................................................19
ARTICLE III ASSUMPTION OF PLANS.......................................................................20
Section 3.1 Option to Assume.....................................................................20
Section 3.2 Obligation to Assume.................................................................21
Section 3.3 Effect of Assumption.................................................................22
Section 3.4 Effect of Breach of Obligation to Assume.............................................23
ARTICLE IV LIABILITY FOR MINIMUM FUNDING CONTRIBUTIONS...............................................24
Section 4.1 After an Assumption Date.............................................................24
Section 4.2 Prior to an Assumption Date..........................................................24
Section 4.3 Collateral Account...................................................................25
ARTICLE V TERMINATION LIABILITY.....................................................................27
Section 5.1 After Assumption.....................................................................27
Section 5.2 Prior to an Assumption Date..........................................................27
Section 5.3 Right to Contest.....................................................................28
ARTICLE VI LIENS.....................................................................................28
Section 6.1 Imposition of Lien...................................................................28
Section 6.2 Application of Lien..................................................................29
Section 6.3 Release of Liens.....................................................................29
ARTICLE VII RESTRICTIONS ON TEEPAK SECURED DEBT.......................................................30
Section 7.1 Restrictions on Teepak Secured Debt..................................................30
ARTICLE VIII SUBORDINATION OF TERMINATION LIABILITY CLAIMS.............................................31
Section 8.1 Subordination of Termination Liability Claims........................................31
ARTICLE IX INVOLUNTARY TERMINATION...................................................................31
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Section 9.1 Restrictions on Involuntary Termination..............................................31
ARTICLE X REPORTS...................................................................................32
Section 10.1 Actuarial Information................................................................32
Section 10.2 Financial Information................................................................33
Section 10.3 Notices..............................................................................34
Section 10.4 Requested Information................................................................37
Section 10.5 Exceptions...........................................................................38
Section 10.6 Confidentiality......................................................................38
ARTICLE XI RESTRICTIONS ON DIVIDENDS.................................................................40
Section 11.1 With Respect to the Limited Hillside Group...........................................40
Section 11.2 With Respect to the Ampex Group......................................................40
Section 11.3 Dividend Allocation Rules............................................................41
Section 11.4 Change of Fiscal Year................................................................42
ARTICLE XII DURATION..................................................................................42
Section 12.1 Termination of Obligations...........................................................42
ARTICLE XIII OTHER PENSION PLANS.......................................................................44
Section 13.1 Liability of Full Hillside Group.....................................................44
Section 13.2 Liability of Ampex Group and Sherborne Group.........................................44
ARTICLE XIV RELEASES..................................................................................45
Section 14.1 Full Hillside Group..................................................................45
Section 14.2 Sherborne Group......................................................................45
Section 14.3 Xepma I Inc. and Xepma IV Inc........................................................45
Section 14.4 NH Holding Incorporated..............................................................45
ARTICLE XV REPRESENTATIONS AND WARRANTIES............................................................46
Section 15.1 General Representations and Warranties...............................................46
Section 15.2 Additional Representations and Warranties............................................46
ARTICLE XVI GENERAL PROVISIONS........................................................................47
Section 16.1 Entire Agreement.....................................................................47
Section 16.2 Governing Law and Jurisdiction.......................................................48
Section 16.3 Modifications........................................................................48
Section 16.4 Authority............................................................................49
Section 16.5 Notices..............................................................................49
Section 16.6 No Waiver............................................................................53
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Section 16.7 Benefits.............................................................................53
Section 16.8 Execution............................................................................53
Section 16.9 Captions.............................................................................54
Section 16.10 Severability.........................................................................54
Section 16.11 Survival.............................................................................54
Section 16.12 Effectiveness........................................................................54
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JOINT SETTLEMENT AGREEMENT
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This Joint Settlement Agreement ("Agreement") is made as of November
22, 1994, by and among (i) the Pension Benefit Guaranty Corporation ("PBGC"),
(ii) Ampex Corporation ("Ampex') and each other member of the Ampex Group (as
hereinafter defined), (iii) Hillside Capital Incorporated ("Hillside") and each
other member of the Limited Hillside Group (as hereinafter defined) and (iv)
Sherborne Holdings Incorporated ("Sherborne") and each other member of the
Sherborne Group (as hereinafter defined).
RECITALS
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WHEREAS, Ampex, f/k/a Ampex Incorporated, is the contributing sponsor,
within the meaning of 29 U.S.C.Section. 1301(a)(13), of the Employees'
Retirement Plan of Ampex Corporation ("Systems Plan"); and
WHEREAS, Ampex Media Holdings Incorporated ("Ampex Media") is the
contributing sponsor, within the meaning of 29 U.S.C.Section. 1301(a)(13), of
the Ampex Media Corporation Retirement Plan ("Media Plan") (the Systems Plan and
the Media Plan together, the "Plans"); and
WHEREAS, PBGC asserts that each of the following persons or entities
(and each of their subsidiaries) is a member of a Controlled Group, (as
hereinafter defined) of which Ampex and/or Ampex Media is a member: Ampex
Corporation; Xepma I Inc.; Xepma II Inc.; Xepma III Inc.; Xepma IV Inc.; NH
Holding Incorporated; Sherborne Group Incorporated; Sherborne Holdings
Incorporated; Buffalo Color Corporation; NH Bond Corp.; Newhill Partners L.P.;
Hillside Capital Incorporated; Hillside Industries Incorporated; Hillside
Financial Incorporated; Hillside Delaware Incorporated; T. Hillside C.
Incorporated; Hillside Newspapers Incorporated; PLK Liquidating Corporation;
Xxxxxxx Products International Sales Corporation;
Teepak International, Inc.; Teepak, Inc.; Teepak Plastics, Inc.; Teepak
Acquisition Corp.; Teepak New Europe; Teepak International II, Inc.; Teepak
International, Inc.; Teepak Investments, Inc.; Teepak Nederlands, B.V.; Teepak
Produktie, N.V.; Teepak Industries, Inc.; and Xxxxxx, B.V. (collectively,
"Asserted Ampex Group"); and
WHEREAS, Hillside Capital Incorporated, Hillside Industries
Incorporated; Hillside Financial Incorporated; Hillside Delaware Incorporated;
T. Hillside C. Incorporated; Hillside Newspapers Incorporated; PLK Liquidating
Corporation; Xxxxxxx Products International Sales Corporation; Teepak
International, Inc.; Teepak, Inc.; Teepak Plastics, Inc.; Teepak Acquisition
Corp.; Teepak New Europe; Teepak International II, Inc.; Teepak International,
Inc.; Teepak Investments, Inc.; Teepak Nederlands, B.V.; Teepak Produktie, N.V.;
Teepak Industries, Inc.; and Xxxxxx, B.V. (collectively, "Hillside Entities")
assert that they are not, collectively or separately, members of a Controlled
Group of which Ampex or Ampex Media is a member; and
WHEREAS, PBGC asserts that if either or both of the Plans were to
terminate under 29 U.S.C.Section. 1341 or Section. 1342, each entity in the
Asserted Ampex Group would be jointly and severally liable as follows: (1) to
PBGC for the liability described in 29 U.S.C.Section .1362(b); (2) to the
trustee of such terminated Plan(s) for the liability described in 29
U.S.C.Section. 1362(c); and (3) to PBGC for the liability described in 29
U.S.C.Sections. 1306-07 (collectively, "Pension Obligations"); and
WHEREAS, as of March 1, 1994, the PBGC asserted that in the weeks and
months after such date, events or transactions might have occurred, including
but not limited to a proposed restructuring of the debt obligations of Ampex
(then known as Ampex Incorporated) and the proposed reorganization of NH Holding
Incorporated in its pending Chapter 11 case in the U.S. Bankruptcy Court for the
District of Delaware, which could have resulted in one or
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more of the members of the Asserted Ampex Group ceasing to be a member of a
Controlled Group of which Ampex and/or Ampex Media is a member and, therefore,
ceasing to have joint and several liability for the Pension Obligations, if any;
and
WHEREAS, in view of the possibility that such an event or transaction
might have occurred shortly after Xxxxx 0, 0000, XXXX considered initiating
action to terminate either or both of the Plans under 29 U.S.C. Section.
1342(a)(4); and
WHEREAS, the PBGC and the entities in the Asserted Ampex Group entered
into an agreement dated March 14, 1994 (the "Interim Agreement"), which
provided, inter alia, that if an entity in the Asserted Ampex Group which was a
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party thereto was a member of a Controlled Group with Ampex and Ampex Media on
the date of the Interim Agreement, such member would continue to be treated as a
member of such Controlled Group through May 2, 1994 (the "Term of the Interim
Agreement") in order to allow the parties to discuss the possibility of entering
into an agreement that would alleviate certain concerns of the PBGC regarding a
possible breakup of the Asserted Ampex Group; and
WHEREAS, effective April 21, 1994, May 21, 1994, August 21, 1994,
September 21, 1994, October 17, 1994 and November 17, 1994, the parties to the
Interim Agreement (including NH Holding Incorporated ("NHI") with respect to the
April 21, 1994 agreement and otherwise excluding NHI) entered into successive
agreements amending and extending the Term of the Interim Agreement, the last
such extension being to and including November 22, 1994; and
WHEREAS, effective May 21, 1994, June 27, 1994, August 15, 1994,
September 20, 1994, October 19, 1994 and November 17, 1994, NHI and the PBGC
entered into agreements
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parallel to those entered into by the other parties in the Interim Agreement and
successive extensions;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, the receipt, adequacy and sufficiency
of which are hereby acknowledged, and intending to be legally bound, each entity
in the Ampex Group (as defined below), the Sherborne Group (as defined below),
the Limited Hillside Group (as defined below) and the PBGC hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following
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terms shall have the meaning set forth below:
(a) "Acquired Entity" shall mean an entity (i) which initially comes
under Common Control with any member of the Limited Hillside Group after the
Effective Date and (ii) at least 20% of which is or has been acquired with
assets of, or proceeds from the sale of, or through a direct or indirect
borrowing, pledge or guarantee by, any member of the Limited Hillside Group;
provided, however, that any entity acquired with any such investment by one or
more of the members of the Limited Hillside Group totaling in the aggregate $10
million or less shall not be considered an "Acquired Entity" regardless of the
source of the funds for the investment.
(b) "Additional Hillside Member" shall mean, at any time, any entity
which is a member of the Full Hillside Group but which is not a member of the
Limited Hillside Group.
(c) "Adjustment Factor" shall mean (i) with respect to a fiscal year
of Ampex and the Ampex Group, the ratio of the Consumer Price Index in the month
immediately
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preceding the start of such fiscal year to the Consumer Price Index in December
1994 and (ii) with respect to a fiscal year of Hillside and the Limited Hillside
Group, the ratio of the Consumer Price Index in the month immediately preceding
the start of such fiscal year to the Consumer Price Index in September 1994.
(d) "Agreement" shall mean this joint settlement agreement by and
between members of the Ampex Group, the Sherborne Group, the Limited Hillside
Group and the PBGC.
(e) "Ampex" shall mean Ampex Corporation (formerly known as Ampex
Incorporated) or any successor thereto.
(f) "Ampex Company Distribution" shall mean the payment by an entity
in the Ampex Group of a dividend, partnership distribution or management fee, or
a payment in respect of the redemption of the entity's stock or partnership
interests (including partial redemptions), but shall not include:
(i) Preferred Stock Distributions;
(ii) any such payment by an entity which is a member of the Ampex
Group to another member of the Ampex Group;
(iii) any stock dividend consisting of equity securities of the
company paying the dividend or redemption of equity securities solely
for other equity securities of the company redeeming the securities;
(iv) any management fees paid to Non-Affiliates of Ampex; or
(v) any payment of compensation or remuneration to an individual.
All Ampex Company Distributions, other than cash, shall be valued at Fair Market
Value on the date of distribution.
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(g) "Ampex Group" shall mean Ampex and any entity under Common Control
with Ampex, but shall not include NHI, Xepma I Inc. or Xepma IV Inc. or any
member of the Sherborne Group or the Full Hillside Group.
(h) "Ampex Minimum Allowed Annual Dividend" shall mean (i) $500,000
with respect to the fiscal year beginning on or after January 1, 1995, and (ii)
$500,000 multiplied by the Adjustment Factor for fiscal years commencing on or
after January 1, 1996.
(i) "Annual Contribution" shall mean the amount that must be
contributed to a Plan prior to the Annual Due Date in order to satisfy the
minimum funding standard for the Plan for a Plan Year such that the Plan will be
determined not to have an accumulated funding deficiency for such Plan Year
within the meaning of section 302(a) of ERISA and section 412(a) of the Code.
(j) "Annual Due Date" shall mean the date which is eight and one-half
(8 1/2) months after the last day of the applicable Plan Year, or in the event
of a change in Applicable Law, the last day of a period after the end of a Plan
Year in which contributions to the Plan(s) may be deemed to have been made on
the last day of the preceding Plan Year under section 302 of ERISA and section
412 of the Code.
(k) "Applicable Law" shall mean all applicable laws, including,
without limitation, those relating to health, safety, wage and hour, employee
benefit plans, the environment, taxes, securities and labor, ordinances,
judgments, decrees, injunctions, writs, decisions, and orders of any Government
Authority and rules, regulations, orders, interpretations, licenses and permits
of any Government Authority.
(l) "Assumption Date" shall mean the earlier of (i) the date on which
a member of the Limited Hillside Group shall have assumed a Plan in accordance
with Section 3.1,
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or (ii) the date on which the members of the Limited Hillside Group become
obligated to assume a Plan in accordance with Section 3.2.
(m) "Back-up Liability Payments" shall mean any amounts paid to either
Plan by a member of the Full Hillside Group (including any transfers from the
Collateral Account to either Plan) or paid or loaned to Ampex or a successor
Plan Sponsor pursuant to Section 4.2 prior to an Assumption Date for such Plan.
(n) "Bank" shall mean the banking institution with which the
Collateral Account is maintained at any time.
(o) "Bankruptcy Code" shall mean 11 U.S.C. Section. 101 et. seq.
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(p) "Buffalo Color" shall mean the Buffalo Color Corporation (and its
domestic subsidiaries) and any successor thereto.
(q) "Business Day" shall mean any day excluding Saturday, Sunday and
any day which shall be in The City of New York or in the District of Columbia a
legal holiday or a day on which banks are authorized or required by law or other
governmental action to be closed.
(r) "Certified Sherborne Cash Infusion" shall mean a direct or
indirect cash infusion or credit support from a member of the Sherborne Group to
Ampex with respect to which the President or Chief Financial Officer of the
Sherborne Group member shall have provided written certification to Ampex, with
copies to the PBGC and Hillside, that such infusion or support is for a named
specific purpose other than for the purpose of, directly or indirectly, making
minimum funding contributions to the Plans.
(s) "Code" shall mean the Internal Revenue Code of 1986, as amended.
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(t) "Collateral Account" shall mean an account established by Hillside
or another member of the Limited Hillside Group at a banking institution for the
benefit of the Plans, the amounts in which shall be used as collateral for
Back-up Liability Payments.
(u) "Collateral Account Valuation Date" shall meaning last day of the
second month preceding each Extended Due Date.
(v) "Collective Net Worth" shall have the same meaning as defined in
section 4062(d)(l) of ERISA and the regulations promulgated under Section 4062
of ERISA.
(w) "Commences Liquidation" shall mean, with respect to an entity, any
action or process by which the entity (i) commences a voluntary liquidation or
dissolution, except as part of a merger or consolidation with, or liquidation
into another member of its Controlled Group, (ii) applies for or consents to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of all of its property, (iii) makes a general assignment for the
benefit of creditors, (iv) commences a voluntary proceeding under the Bankruptcy
Code seeking liquidation, (v) files a petition seeking to take advantage of any
other law relating to insolvency, winding-up, liquidation or taking any official
corporate action for the purpose of effecting any of the foregoing or (vi) fails
to controvert in a timely or appropriate manner, or acquiesces in writing to,
any involuntary petition filed against it seeking liquidation under the
Bankruptcy Code or under other Applicable Law.
(x) "Common Control" shall have the same meaning as defined in section
400l(a)(14) of ERISA and under rules found in 29 C.F.R. pt. 2612.
(y) "Consumer Price Index" shall mean the Consumer price Index - All
Urban Consumers.
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(z) "Controlled Group" shall mean a group of trades or businesses,
whether or not incorporated, which are under Common Control with each other.
(aa) "Cumulative Operating Profit" for a particular time period shall
mean the sum of the Operating Profits for each individual year or other
financial reporting period within the time period in question.
(ab) "Effective Date" shall mean November 22, 1994.
(ac) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
(ad) "Extended Due Date" shall mean the last date on which a Required
Contribution can be made to a Plan before a lien arises pursuant to section
302(f)(4)(B) of ERISA and section 4l2(n)(4)(B) of the Code.
(ae) "Fair Market Value" on a specified date shall mean:
(i) with respect to securities regularly traded in the organized
securities markets, the average closing price at which the security is
traded on such market for the twenty (20) trading days preceding the
specified date;
(ii) subject to the limitations in clause (v), below, with
respect to all securities not regularly traded in the securities
markets and other property (other than equity securities of Hillside
in a transaction described in clause (iv), below), the fair market
value thereof as determined in good faith by the Board of Directors of
Hillside or Ampex, as the case may be, at the time it authorizes the
transaction;
(iii) subject to the limitations of clause (v), below, with
respect to an interest in a partnership or investment trust which is
not publicly traded and is not
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managed or controlled by any party to this Agreement, the most recent
value established by the general partner or trustee thereof;
(iv) subject to the limitations of clause (v), below, with
respect to a share of equity securities of Hillside redeemed from X.
Xxxxxxxx Xxxxxx (or his estate or his heirs) ("Xxxxxx") or redeemed
from Xxxx X. Xxxxx XX (or his estate or his heirs) in a redemption
occurring within twelve (12) months after the redemption from Xxxxxx,
the price per share agreed upon by and between Hillside and Xxxxxx;
(v) with respect to the value of property determined under
clauses (ii) through (iv), in the event that the PBGC reasonably
objects, in writing, to such value within thirty (30) days after
receipt of notice of a Hillside Company Distribution or an Ampex
Company Distribution pursuant to clause (iii) or clause (iv) of
Section 10.3, the value of such property shall be established by an
independent valuator selected by the PBGC and Hillside or Ampex, as
the case may be, who is familiar with the type of property to be
valued and who shall render a written valuation report to the PBGC and
Hillside or Ampex, as appropriate, within sixty (60) days of his
engagement and whose findings shall be binding on the parties hereto.
(af) "Fixed Charges" shall mean interest expense (calculated in
accordance with GAAP) plus preferred dividends (whether cash or noncash, and
whether paid or accumulated and unpaid), plus minimum funding contributions to
defined benefit pension plans calculated without using any credit balance
accumulated under section 302 of ERISA and section 412 of the Code as a credit
to the funding standard account, plus cash retiree health expenses.
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(ag) "Full Hillside Group" shall mean, at any time, all entities under
Common Control with Hillside and Hillside Industries Incorporated, including the
entities in the Limited Hillside Group.
(ah) "Funding Waiver" shall mean a waiver of all or a portion of the
minimum funding requirements for a Plan for a year issued by the Secretary of
the Treasury pursuant to section 303 of ERISA and section 412(d) of the Code.
(ai) "GAAP" shall mean, at the time of any determination, generally
accepted accounting principles in the United States of America as then in
effect.
(aj) "Government Authority" shall mean any Federal, state, county,
municipal, regional or other government authority, agency, board, body,
instrumentality or court.
(ak) "Group" shall mean the Ampex Group, the Full Hillside Group, the
Limited Hillside Group or the Sherborne Group, as the case may be.
(al) "Hillside" shall mean Hillside Capital Incorporated and any
successor thereto.
(am) "Hillside-Ampex/Sherborne Agreement" shall mean the agreement
between members of the Limited Hillside Group, the Ampex Group and the Sherborne
Group, of even date herewith.
(an) "Hillside Company Distribution" shall mean the payment to any
person who, or any entity which, is not a member at the Limited Hillside Group
by any member of the Limited Hillside Group, of a dividend, partnership
distribution or management fee, or in respect of the redemption of stock or
partnership interests, but shall not include:
(i) Preferred Stock Distributions;
(ii) any payment of compensation or remuneration to an
individual;
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(iii) any management fees paid to Non-Affiliates of Hillside;
(iv) any dividend which exceeds the Hillside Minimum Allowed
Annual Dividend for the fiscal year and which is necessary to prevent
a member of the Limited Hillside Group from being subject to the
personal holding company tax pursuant to Section 541 of the Code;
(v) any distribution which is made by any entity which is a
member of the Limited Hillside Group and which is also a Pass Through
Entity to its stockholders or partners (or other equity owners) in an
amount equal to the total cash federal, state and local income taxes
imposed upon such shareholders, partners (or other equity owners) with
respect to the retained income or earnings of the entity, such tax to
be determined as if each such distributee resided in the state or
locality of the shareholder, partner (or other equity owner) having
the largest equity interest in the entity and without regard to any
losses, deductions or credits to which the shareholder, partner (or
other equity owner) is entitled on his personal tax return (other than
a loss, deduction or credit including a net operating loss carryover,
attributable to the same or any other member of the Limited Hillside
Group for any year in which it is a Pass Through Entity); or
(vi) any stock dividend consisting of equity securities of the
company paying the dividend.
All Hillside Company Distributions, other than cash, shall be valued at Fair
Market Value at the date of distribution.
(ao) "Hillside Dividendable Net Income" or `HDNI" shall mean the
after-tax consolidated net income of the Limited Hillside Group for the relevant
fiscal year determined in
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accordance with GAAP, without regard to extraordinary items, non-cash
restructuring charges, nonrecurring accounting charges, and credits due to
accounting changes, and the sale or other disposition of stock or partnership
interests or other holdings, reduced by any Preferred Stock Distribution;
provided, that if the parent entity of the Limited Hillside Group is a Pass
Through Entity, HDNI shall be reduced by the amount of distributions, if any,
described in clause (v) of Section 1.1 (an). Notwithstanding the foregoing, HDNI
shall be subject to the following adjustments:
(i) income of foreign branches of domestic members of the Limited
Hillside Group shall not be included in HDNI to the extent that legal,
contractual or other restrictions would prevent the repatriation of
such income in cash; and
(ii) income shall not be included if it is from (A) foreign
subsidiaries and Additional Hillside Members or (B) operations or
investments which are included directly or indirectly in the Limited
Hillside Group's financial statements under GAAP;
provided, however, that the adjustments to HDNI in clauses (i) and (ii) above,
shall not apply to the extent that Hillside actually receives the income or
could cause such income to be paid to Hillside without violating any legal,
contractual or other restrictions on dividends.
(ap) "Hillside Minimum Allowed Annual Dividend" shall mean (i) $5
million with respect to any fiscal year commencing on October 1, 1993 or October
1, 1994, and (ii) $5 million multiplied by the Adjustment Factor, for fiscal
years commencing on or after October 1, 1995.
(aq) "Hillside Severance Date" shall mean the later of (i) the
Effective Date or (ii) the date on which the transactions described in the
memorandum to the PBGC dated
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November 7, 1994, a copy of which is attached hereto as Exhibit A, relating to
the severing of the alleged Common Control relationship between the Full
Hillside Group and the Ampex Group, the Sherborne Group and NHI, Xepma I Inc.
and Xepma IV Inc. are completed.
(ar) "IRS" shall mean the Internal Revenue Service of the United
States or any agency that may succeed to all or substantially all of the
functions exercised by the IRS.
(as) "Limited Hillside Group" shall mean Hillside, Hillside Industries
Incorporated, Teepak, any current or future domestic subsidiary of Teepak which
is under Common Control with Reepak and any Acquired Entity.
(at) "Liquid Assets" shall mean cash, including cash equivalents, and
marketable securities.
(au) "Media" shall mean Ampex Media Holdings Incorporated or any
successor thereto.
(av) "Media Plan" shall mean the Ampex Media Corporation Retirement
Plan.
(aw) "NHI" shall mean NH Holding Incorporated.
(ax) "Non-Affiliates" shall mean individuals who, and entities which,
are not controlled by or under common control with, and are not part of any
group of stockholders acting in concert which controls, directly or indirectly,
the applicable person, Group or entity.
(ay) "Operating Profit" shall mean with respect to any entity its
sales, minus cost of goods sold, minus sales, general and administrative costs,
minus expenses for research and development, excluding any defined benefit
pension or retiree health expense or income, all calculated in accordance with
GAAP. Operating Profit can be positive or negative.
(az) "Pass Through Entity" shall mean a partnership, an S Corporation
within the meaning of section 1361 of the Code or any other entity with respect
to which the income,
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gains or other earnings of the entity are currently taxable to its partners,
shareholders or other equity interest holders even if such amounts are retained
by the entity.
(ba) "PBGC" shall mean the Pension Benefit Guaranty Corporation, a
United States Government corporation, located as of the Effective Date at 0000 X
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, established under section 4002 of ERISA
and responsible for the administration of Title IV of ERISA, or any agency that
may succeed to the functions exercised by the PBGC.
(bb) "Plan" shall mean the Media Plan or the Systems Plan, whichever
is applicable.
(bc) "Plan Sponsor" with respect to either of the Plans shall mean the
contributing sponsor thereof (as defined under section 400l(a)(13) of ERISA
without regard to section 302(c)(11)(B) of ERISA and section 412(c)(1l)(B) of
the Code) or its successor by merger or consolidation.
(bd) "Plan Year" shall mean the plan year (as such term is used in
section 412 of the Code) of the Media Plan or the Systems Plan, whichever is
applicable.
(be) "Preferred Stock Distribution" shall mean any cash payment of
dividends on preferred stock or any cash payment associated with the redemption
of preferred stock or warrants or the repurchase of common stock issued upon the
conversion of preferred stock or the exercise of warrants, to the extent such
preferred stock and warrants were issued for fair value to, and such preferred
stock, warrants and common stock are beneficially owned by, Non-Affiliates of
Hillside or Ampex, as the case may be.
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(bf) "Quarterly Contribution" shall mean a required quarterly
installment payment of the Annual Contribution to a Plan as determined under
section 302(e) of ERISA and section 4l2(m) of the Code.
(bg) "Quarterly Due Date" shall mean the date on which a Quarterly
Contribution is due pursuant to section 302(e)(3) of ERISA and section 412(m)(3)
of the Code.
(bh) "Required Amount" shall mean, at any point in time, an amount
equal to the sum of the amounts for which a lien could be imposed under section
302(f)(3) of ERISA and section 412(n)(3) of the Code on the property of a person
obligated to make Required Contributions to the Plans.
(bi) "Required Contribution" shall mean at any point in time an amount
which must be contributed to satisfy the requirement to make a Quarterly
Contribution and/or an Annual Contribution, whichever is applicable.
(bj) "Security Document" shall mean the form of security agreement,
pledge agreement and financing agreement, attached hereto as Exhibit B.
(bk) "Sherborne Group" shall mean all entities under Common Control
with Sherborne Holdings Incorporated and Newhill Partners, L.P., but shall not
include any member of the Full Hillside Group or the Ampex Group, or NHI, Xepma
I Inc. or Xepma IV Inc.
(bl) "Standard Termination" shall mean a termination of a Plan in
accordance with section 4041(b) of ERISA.
(bm) "Systems Plan" shall mean the Employees' Retirement Plan of Ampex
Corporation.
(bn) "Teepak" shall mean Teepak International, Inc.
-16-
(bo) "Termination Liability" shall mean liability under section
4062(b) of ERISA, including interest.
(bp) "Termination Lien" shall mean a lien on all of the tangible and
intangible property of each member of the Limited Hillside Group in an aggregate
amount equal to the lesser of (i) the Termination Liability, or (ii) thirty
percent (30%) of the Collective Net Worth of the Full Hillside Group determined
as of the termination date under Title IV of ERISA of one or both of the Plans;
such Termination Lien shall be equivalent in all respects to the lien which
would arise under section 4068 of ERISA were it otherwise to apply except with
respect to the identity of the parties to which it would apply.
(bq) "Uncertified Sherborne Cash Infusion" shall mean a direct or
indirect infusion of cash or credit support by a member of the Sherborne Group
to Ampex which is not a Certified Sherborne Cash Infusion.
(br) "Unused Dividend Limit" shall mean (i) with respect to the
Limited Hillside Group, the amount, if any, by which the Hillside Minimum
Allowed Annual Dividend for a fiscal year exceeds the aggregate of the Hillside
Company Distributions attributed to such year in accordance with Section 11.3 or
(ii) with respect to the Ampex Group, the amount, if any, by which the Ampex
Minimum Allowed Annual Dividend for a fiscal year exceeds the aggregate of the
Ampex Company Distributions attributed to such year in accordance with Section
11.3; provided, however, that the Unused Dividend Limit shall be subject to
adjustment in accordance with Section 11.3.
Section 1.2 Accounting Terms. All accounting terms not specifically
----------------
defined herein shall be construed in accordance with GAAP.
-17-
Section 1.3 Terms Generally. The definitions in this Agreement shall
---------------
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. All the agreements or instruments defined
in this Agreement shall mean such agreements or instruments as the same may from
time to time be supplemented or amended or the terms thereof waived or modified
to the extent permitted by, and in accordance with, the terms hereof and
thereof. All references herein to Articles, Sections and Exhibits shall be
deemed references to Articles and Sections of, and Exhibits to, this Agreement
unless the context shall otherwise require. The words "herein", "hereof",
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision unless clearly
stated otherwise.
Section 1.4 References to Statutes. All references to Federal statutes
----------------------
and regulations refer to the provisions of the statute or regulation as of the
Effective Date, and to any modification and successor provision thereof after
the effective date of any amendment, renumbering or other modification thereto
occurring after the Effective Date.
ARTICLE II
LIABILITY FOR PLANS
Section 2.1 Primary Liability for the Plans. Ampex and each member of
-------------------------------
the Ampex Group shall be jointly and severally liable for Required Contributions
to, and Termination Liability for, the Plans subject to Section 3.3.
Section 2.2 Back-up Liability for the Plans. Except as provided in
-------------------------------
Article III, each member of the Limited Hillside Group shall be jointly and
severally liable for Required Contributions to, and Termination Liability for,
the Plans in accordance with Articles IV and V.
-18-
No Additional Hillside Member shall have any liability for (i) Required
Contributions to either Plan prior to its Assumption Date or (ii) Termination
Liability for either Plan at any time. No Additional Hillside Member shall be
subject to a lien for Termination Liability for either Plan at any time.
Section 2.3 Continuing Liability.
(a) Failure to Provide Notice. If any member of the Limited Hillside
-------------------------
Group or the Ampex Group fails to provide the PBGC with notice of an event or
transaction as required under clause (i) of Section 10.3 or with substantially
all of the additional information requested pursuant to Section 10.4 with
respect to such event or transaction, the member of the Limited Hillside Group
or Ampex Group which ceases to be a member of such Group as a consequence of
such event or transaction, shall continue to be jointly and severally liable for
Required Contributions to, and Termination Liability for, the Plans to the same
extent that such member of the Group was jointly and severally liable under this
Agreement immediately preceding such event or transaction.
(b) Cessation of Liability.
----------------------
(i) Subject to the requirements of Subsection (a) of this Section
2.3, any member of a Group which ceases to be under Common Control
with Hillside or Ampex, as the case may be, shall cease to be a member
of the applicable Group and shall cease to be subject to this
Agreement except for any liability arising before the date such member
ceases to be under Common Control with Ampex or Hillside, whichever is
applicable,
(ii) Upon the sale of the stock of Media as a result of which
Media ceases to be under Common Control with Ampex, or upon the sale
of
-19-
substantially all the assets of Media, Media (in the case of a sale of
its stock) or the successor to the business of Media (in the case of a
sale of its assets) shall have no obligation or liability under this
Agreement after the date of sale; provided, however, that the Media
Plan shall be assumed by Ampex for all periods following the sale.
ARTICLE III
ASSUMPTION OF PLANS
Section 3.1 Option to Assume. Subject to the Hillside-Ampex/Sherborne
----------------
Agreement, Hillside shall have the option, but not the obligation, to assume, or
cause another member of the Limited Hillside Group to assume, either or both of
the Plans and become the Plan Sponsor thereof if:
(i) any member of the Limited Hillside Group is required to make
a Back-up Liability Payment;
(ii) a Plan is proposed to be terminated other than in a Standard
Termination by the Plan Sponsor or the PBGC; or
(iii) a member of the Ampex Group or a successor Plan Sponsor
breaches any material provision of the Hillside-Ampex/Sherborne
Agreement (including, but not limited to, any breach of restrictions
concerning the freezing of and amendments to the Plans to reinstitute
future accruals), and such breach is not cured within thirty (30) days
of the date such breach occurs.
If Hillside or another member of the Limited Hillside Group notifies Ampex (or
such member of the Ampex Group which may be the Plan Sponsor) that it is
exercising its option to assume one or both of the Plans after the occurrence of
an event described in clause (i), (ii) or (iii) of this
-20-
Section 3.1, Ampex (or such member of the Ampex Group which may be the Plan
Sponsor) shall immediately take all actions as are necessary to permit and
facilitate the assumption of the Plan or Plans by such member of the Limited
Hillside Group, including, but not limited to amendment of the Plan or Plans to
effectuate assumption.
Section 3.2 Obligation to Assume.
--------------------
(a) Conditions. In the event that:
----------
(i) Ampex Commences Liquidation; or
(ii) the members of the Ampex Group do not contribute from their
own funds an amount equal to at least one-third (1/3rd) of the
aggregate of the Required Contributions (determined without regard to
any Funding Waivers) for a period of three (3) consecutive Plan Years
ending on December 31, 1997, or any anniversary thereof,
the PBGC may make written demand upon Hillside for a member of the Limited
Hillside Group to assume one or both Plans and become the Plan Sponsor thereof.
Within thirty (30) days of receipt of a demand from the PBGC pursuant to this
Section 3.2, Hillside shall assume or cause a member of the Limited Hillside
Group to assume one or both Plans and become the Plan Sponsor thereof or, with
the consent of Ampex, purchase the Plan Sponsor so that after the acquisition
the Plan Sponsor is under Common Control with the members of the Limited
Hillside Group. The Limited Hillside Group shall provide the PBGC with notice of
its intention to assume a Plan or purchase a Plan Sponsor at least ten (10)
Business Days prior to the assumption or purchase. The member of the Limited
Hillside Group which assumes the Plan shall thereafter continue the Plan as an
ongoing plan or cause the Plan to be terminated in a Standard Termination.
-21-
(b) Operating Rules. For purposes of Subsection (a):
---------------
(i) any contribution to the Plans made on or before the Annual
Due Date and which is designated as being made for the preceding Plan
Year shall be deemed to have been made on the last day of such Plan
Year;
(ii) Ampex shall be deemed to have failed to make Required
Contributions from its own funds to the extent that it receives any
direct or indirect cash infusion from any member of the Full Hillside
Group or it receives any Uncertified Sherborne Cash Infusion or it
receives a Funding Waiver;
(iii) Ampex shall be deemed to have made Required Contributions
from its own funds to the extent that it repays any direct or indirect
cash infusion from any member of the Full Hillside Group (including
any direct contribution to a Plan by a member of the Full Hillside
Group or from the Collateral Account) or any Uncertified Sherborne
Cash Infusion or to the extent it repays any Funding Waiver within the
three year test period.
Section 3.3 Effect of Assumption. If a member of the Limited Hillside
--------------------
Group has assumed a Plan pursuant to Section 3.1 or 3.2: (i) such entity shall
become the sole Plan Sponsor, the contributing sponsor and the plan
administrator of such Plan (unless, following the assumption of the Plan,
another person or entity has been designated as plan administrator pursuant to
the terms of the plan document) for purposes of ERISA and the Code, and (ii)
each member of the Full Hillside Group shall be jointly and severally liable for
Required Contributions to the Plan in accordance with Section 4.1. In no event,
however, shall any Additional Hillside Member be liable for or subject to a lien
for Termination Liability for either of the Plans. Except as otherwise provided
by this Section 3.3, in the event that a member of the
-00-
Xxxxxxx Xxxxxxxx Group assumes a Plan, the Full Hillside Group shall have
responsibility for the Plan in accordance with the provisions of ERISA and the
Code and nothing contained in this Agreement shall either expand or diminish the
rights and responsibilities of any member of the Full Hillside Group.
Upon assumption of a Plan or Plans by a member of the Limited Hillside
Group, the Ampex Group shall have no obligations or liabilities in respect of
the Plans, except for the specific obligations set forth herein and in the
Hillside-Ampex/Sherborne Agreement. Nothing in this Agreement shall limit or
expand the right of any party to claim a tax deduction for or to expense any
contribution to the Plans. PBGC shall take no position in support of or against
any party's claim to a tax deduction with respect to any contribution to the
Plans.
Section 3.4 Effect of Breach of Obligation to Assume. In the event
----------------------------------------
that Hillside breaches its obligation under Section 3.2 to assume or cause
another member of the Hillside Group to assume a Plan, the PBGC's remedies shall
include, but not be limited to, the following:
(i) seek specific performance of the obligation to assume;
(ii) initiate the termination of one or both of the Plans
pursuant to section 4042(a) of ERISA; or
(iii) notify Hillside that it is imposing a Termination Lien upon
all of the assets of each member of the Limited Hillside Group and
demand that each member of the Limited Hillside Group execute the
applicable Security Documents in accordance with Section 6.1.
-23-
ARTICLE IV
LIABILITY FOR MINIMUM FUNDING CONTRIBUTIONS
Section 4.1 After an Assumption Date. During any period of time on or
------------------------
after an Assumption Date, each member of the Full Hillside Group shall be (i)
jointly and severally liable for all Required Contributions to an assumed Plan
in accordance with section 302 of ERISA and section 412 of the Code and (ii)
subject to imposition of liens authorized by section 302(f) of ERISA and 412(n)
of the Code; provided, however, that no Additional Hillside Member shall be
liable for any Required Contribution to either Plan or subject to any lien
related thereto, if the Quarterly Due Date or Annual Due Date (whichever is
applicable) for such Required Contribution is prior to the Assumption Date.
Section 4.2 Prior to an Assumption Date. During any period of time
---------------------------
prior to an Assumption Date, each member of the Limited Hillside Group shall be
jointly and severally liable for Required Contributions to the Plans, subject to
the following rules:
(i) if any Quarterly Contribution is not made in full on or
before the Extended Due Date for such Quarterly Contribution, the
members of the Limited Hillside Group shall become obligated on such
date to pay to the Plan or lend to Ampex or to any other Plan Sponsor
which is a member of the Ampex Group an amount equal to the excess, if
any, of the amount of the Quarterly Contribution over the amount
received to date by the Plan for such Quarterly Contribution. If any
Quarterly Contribution is not made in full on or before the fifth
(5th) day after the Extended Due Date therefor, the PBGC shall have
the right to instruct the Bank to transfer from the Collateral Account
to the Plan an amount equal to the unpaid balance of the Quarterly
Contribution;
-24-
(ii) if any Annual Contribution to a Plan is not made in full on
or before the Annual Due Date, the members of the Limited Hillside
Group shall become obligated on such date to pay to the Plan, or lend
to Ampex or to any other Plan Sponsor which is a member of the Ampex
Group, an amount equal to the excess, if any, of the amount of the
Annual Contribution over the amount received to date by the Plan for
such Annual Contribution. If any Annual Contribution is not made in
full on or before the tenth (10th) day after the Annual Due Date, the
PBGC shall have the right to instruct the Bank to transfer from the
Collateral Account to the Plan an amount equal to the unpaid balance
of the Annual Contribution.
Ampex (or such other member of the Ampex Group as may be the Plan Sponsor of
either Plan) shall direct the trustee of the Plan to promptly provide written
acknowledgment of receipt of each Required Contribution (or portion thereof) to
Ampex, Hillside and the PBGC.
Section 4.3 Collateral Account.
------------------
(a) Establishment of Account. Within fifteen (15) Business Days after
------------------------
the execution of this Agreement, Hillside shall establish or shall cause another
member of the Limited Hillside Group to establish the Collateral Account at a
banking institution and shall deposit the then Required Amount due on the next
Extended Due Date in Liquid Assets in the Collateral Account. On each Collateral
Account Valuation Date, the Bank shall value the Collateral Account and shall
promptly send written notice of the results of the valuation to Hillside (and
any other member of the Limited Hillside Group as may have established the
Account) and the PBGC.
-25-
(b) Adjustments to the Collateral Account. The Collateral Account
shall be subject to the following adjustments:
(i) if the amount in the Collateral Account on the Collateral
Account Valuation Date is less than the Required Amount as of the next
Extended Due Date, a member of the Limited Hillside Group shall be
required to transfer to the Collateral Account, not later than the
thirtieth (30) day prior to such Extended Due Date, an amount equal to
the difference between the value of the Collateral Account and such
Required Amount;
(ii) if the amount in the Collateral Account on the Collateral
Account Valuation Date is greater than the Required Amount as of the
next Extended Due Date, the PBGC shall issue written instructions to
the Bank, not later than the thirtieth (30th) day prior to such
Extended Due Date, to transfer the difference between the amount in
the Collateral Account and such Required Amount to Hillside or to
another member of the Limited Hillside Group specified in written
directions received from Hillside;
(iii) in the event that any amount is transferred from the
Collateral Account to a Plan pursuant to Section 4.2, a member of the
Limited Hillside Group shall transfer to the Collateral Account within
ten (10) Business Days an amount in Liquid Assets which is equal to
the amount transferred to the Plan; and
(iv) no later than the fifth (5th) Business Day following the
earlier of (A) the date on which the obligations under this Agreement
terminate in accordance with Article XII and (B) the Assumption Date
for the last of the Plans to be assumed, the PBGC shall instruct the
Bank, in writing, to transfer to Hillside
-26-
(or such other member of the Limited Hillside Group as Hillside may
specify) any amount remaining in the Collateral Account.
ARTICLE V
TERMINATION LIABILITY
Section 5.1 After Assumption. If a Plan is terminated on or after an
----------------
Assumption Date other than in a Standard Termination, each member of the Limited
Hillside Group on the date of Plan termination shall be jointly and severally
liable for the Termination Liability for such Plan in accordance with Title IV
of ERISA.
Section 5.2 Prior to an Assumption Date. If a Plan is terminated prior
---------------------------
to an Assumption Date, PBGC shall make demand upon Ampex or such other member of
the Ampex Group as may be the Plan Sponsor, and upon each entity under Common
Control with Ampex or such Plan Sponsor on the date of Plan termination, for
payment of the Termination Liability for the Plan. If the PBGC has not received
full payment of the Termination Liability for the Plan from Ampex or such other
Plan Sponsor, or the other entities under Common Control with the Plan Sponsor
after written demand therefor, the PBGC shall pursue all legal remedies
reasonably available to it in order to recover the unpaid amount of the
Termination Liability from Ampex or such other Plan Sponsor and from each entity
under Common Control therewith. If any portion of the Termination Liability
thereafter remains unpaid, the PEW shall certify in writing to Hillside that the
PBGC has pursued all legal remedies reasonable available to it to recover the
Termination Liability from Ampex or such other Plan Sponsor and each entity
under Common Control with the Plan Sponsor and shall also certify the amount of
the Termination Liability that has not been satisfied. The requirement to pursue
all legal remedies reasonably available shall be
-27-
deemed satisfied if the PBGC has filed a complaint in U.S. district court, has
filed a proof of claim in bankruptcy court, or has filed a lien for the
Termination Liability.
Within thirty (30) days after Hillside's receipt of such
certification, Hillside shall pay or shall cause the members of the Limited
Hillside Group to pay to the PBGC the lesser of: (i) the unpaid amount of the
Termination Liability and (ii) an amount equal to thirty percent (30%) of the
Collective Net Worth of the Full Hillside Group. If the amount described in
clause (i) exceeds the amount described in clause (ii), above, the members of
the Limited Hillside Group shall pay the difference to the PBGC under
commercially reasonable terms determined in accordance with sections
4062(b)(2)(B) and 4062(b)(3) of ERISA.
If the Termination Liability is not paid in full on or before the
sixtieth (60th) day after receipt by Hillside of such written certification, the
PBGC shall be entitled to impose a Termination Lien.
Nothing herein shall enlarge or diminish the rights at any of the
Limited Hillside Group against the Ampex Group for repayment of Termination
Liability under the Hillside -Ampex/Sherborne Agreement.
Section 5.3 Right to Contest. Nothing in this Agreement shall restrict
----------------
or diminish the rights of the parties hereto to dispute or contest the PBGC's
basis for seeking termination of either Plan and the amount of the Termination
Liability asserted by the PBGC in the event of the involuntary termination of
the Plan or Plans.
ARTICLE VI
LIENS
Section 6.1 Imposition of Lien. The PBGC shall provide notice to
------------------
Hillside of the occurrence of any event which would entitle the PBGC to impose a
lien on the assets of the
-28-
members of the Limited Hillside Group pursuant to Section 3.4 or 5.2. If no
member of the Full Hillside Group takes the actions required under Sections 3.2
or 5.2, whichever is applicable, to avoid the imposition of the lien within ten
(10) days of Hillside's receipt of such notice, the PBGC shall provide to each
member of the Limited Hillside Group the applicable Security Documents. Within
five (5) days after the date on which the Security Documents are received, each
member of the Limited Hillside Group shall execute and return the Security
Documents to the PBGC.
Section 6.2 Application of Lien. Any lien imposed under this Agreement
-------------------
shall apply to all of the assets of each member of the Limited Hillside Group at
the time the notice described in Section 6.1 is received by Hillside. The amount
of each such lien shall be limited to the amount described in Section 3.4 or
5.2, whichever is applicable. Nothing provided herein shall be deemed to create
a security interest in or any lien on any asset of the Full Hillside Group by
reason of the execution of this Agreement or at any time until the Security
Documents are executed.
Section 6.3 Release of Liens. Any lien imposed pursuant to this
----------------
Agreement shall be released by the PBGC after receipt of notice from Hillside
certifying that it or another member of the Full Hillside Group has taken the
actions required under Section 3.2 or 5.2, whichever is applicable, the failure
or which originally entitled the PBGC to impose the lien. Within five (5)
Business Days after the date on which such Hillside certification is received,
the PBGC shall execute and send to all applicable members of the Limited
Hillside Group such lien termination statements as are necessary to release such
lien.
-29-
ARTICLE VII
RESTRICTIONS ON TEEPAK SECURED DEBT
Section 7.1 Restrictions on Teepak Secured Debt. Teepak, each of its
-----------------------------------
domestic subsidiaries, and any future Teepak domestic subsidiary that is
included in the Limited Hillside Group shall not mortgage or grant security
interests in domestic assets, including but not limited to stock of domestic or
foreign subsidiaries, to secure borrowings without the PBGC's prior written
consent, provided that the foregoing restriction shall not apply to:
(i) liens on any property securing debt incurred or assumed for
the purpose of financing all or any part of the cost of acquiring such
property, provided that such lien attaches to such property
concurrently with or within ninety (90) days after the date such
property is acquired;
(ii) liens upon any property existing at the time such property
is acquired or upon improvements thereto;
(iii) liens arising in the normal course of discounting
receivables without recourse;
(iv) liens on the capital stock of Teepak, Inc. or any domestic
subsidiary to secure indebtedness not exceeding $35 million in the
aggregate at any time outstanding; and
(v) liens on assets to secure borrowings (other than indebtedness
included under clauses (i) through (iv), above,) not exceeding $110
million in the aggregate at any time outstanding.
-30-
ARTICLE VIII
SUBORDINATION OF TERMINATION LIABILITY CLAIMS
Section 8.1 Subordination of Termination Liability Claims. If a member
---------------------------------------------
of the Limited Hillside Group has a claim against any member of the Sherborne
Group (including Buffalo Color) for a liability related to the termination of
one or both of the Plans, such claim shall be subordinated to any claim of the
PBGC against the same member of the Sherborne Group for a liability related to
the termination of a pension plan sponsored by a member of the Sherborne Group,
unless the claim of the member of the Limited Hillside Group arose and written
demand for payment was made on the member of Sherborne Group more than twelve
(12) months prior to the date on which the PBGC's claim arose.
ARTICLE IX
INVOLUNTARY TERMINATION
Section 9.1 Restrictions on Involuntary Termination. The PBGC shall
---------------------------------------
not seek to involuntarily terminate either Plan on account of a change of
ownership of a member of the Ampex Group or the Sherborne Group which would
sever the controlled group relationship, if any, between the Sherborne Group and
the Ampex Group and/or between any member of the Full Hillside Group and the
Ampex Group and/or the Sherborne Group, or on account of the sale of all or
substantially all of the stock or assets of Media, provided that Ampex assumes
the Media Plan for all periods after the sale, or on account of the expiration
of this Agreement in accordance with its terms.
-31-
ARTICLE X
REPORTS
Section 10.1 Actuarial Information. Hillside shall cause each plan
---------------------
sponsor which is a member of the Hillside Group and Ampex shall cause each plan
sponsor which is a member of the Ampex Group to deliver the following to the
Corporate Finance and Negotiations Department of the PBGC:
(i) Within thirty (30) days after adoption, all amendments to the
Media Plan and the Systems Plan;
(ii) Within thirty (30) days after filing with the IRS, Forms
5500 with Schedule Bs, for all defined benefit pension plans
maintained by Ampex, Media and Teepak, Inc., or their successors;
(iii) Within thirty (30) days after issuance, all actuarial
reports for all defined benefit pension plans maintained by Ampex,
Media and Teepak, Inc., or their successors;
(iv) Upon filing or issuance, copies of notices of intent to
terminate, merge or spin off any defined benefit pension plan
maintained by Ampex, Media and Teepak, Inc., or their successors;
(v) Upon filing with the IRS, copies of any requests for a
minimum funding waiver with regard to any defined benefit pension plan
maintained by Ampex, Media and Teepak, Inc., or their successors;
(vi) Upon filing with the PBGC, copies of notices of reportable
events under section 4043 of ERISA and all notices required under
section 4l2(n)(4) of
-32-
the Code with regard to any defined benefit pension plan maintained by
Ampex, Media and Teepak, Inc., or their successors; and
(vii) With reasonable promptness, such further actuarial
information with regard to any defined benefit pension plan maintained
by Ampex, Media and Teepak, Inc., or their successors, as the PBGC may
from time to time reasonably request in writing.
Section 10.2 Financial Information.
---------------------
(a) Subject to the provisions of subsection (b), Hillside shall cause
each responsible party which is a member of the Full Hillside Group, and Ampex
shall cause each responsible party which is a member of the Ampex Group, to
deliver, or cause to be delivered, the following information to the Corporate
Finance and Negotiations Department of the PBGC:
(i) Upon filing, all documents filed with the Securities and
Exchange Commission by Ampex, Media, Teepak and Congoleum Corporation;
(ii) Within one hundred and twenty (120) days after the end of
each fiscal year, copies of annual reports or annual financial
statements, on a consolidated basis, for Teepak, Inc.;
(iii) Within one hundred and twenty (120) days after the end of
each fiscal year, copies of annual financial statements, on a
consolidating basis, for Ampex, Media, Hillside, Hillside Industries
Incorporated ("Hillside Industries"), and Teepak;
(iv) Within sixty (60) days after the end of each of the first
three fiscal quarters of each fiscal year, the quarterly financial
statements on a consolidating basis for Teepak, Hillside and Hillside
Industries;
-33-
(v) Within ten (10) days of issuance, all business plans,
restructuring proposals, and capital expense budget plans for Ampex
and Media; and
(vi) With reasonable promptness, such further information
regarding the business affairs and financial position of Ampex, Media,
Teepak, Inc., Hillside and Hillside Industries, as the PBGC may from
time to time reasonably request in writing.
(b) The reporting requirements specified in subsection (a) shall cease
to apply to information relating to (1) Congoleum or (ii) a former member of the
Ampex Group or the Full Hillside Group, if the members of the Ampex Group and
the members of the Full Hillside Group collectively own in the aggregate less
than fifty percent (50%) of Congoleum or such former member, as the case may be,
and, in the case of any such former member, such former member has ceased to be
liable under this Agreement.
Section 10.3 Notices. Hillside shall cause each responsible party
-------
which is a member of the Limited Hillside Group, and Ampex shall cause each
responsible party which is a member of the Ampex Group, to deliver, or cause to
be delivered, the following notices to the Corporate Finance and Negotiations
Department of the PBGC:
(i) At least thirty (30) days prior to the effective date,
written notice of any event or transaction as a result of which (A)
any member of the Limited Hillside Group or the Ampex Group will cease
to be under Common Control with Hillside or Ampex, respectively, and
(B) immediately after the effective date of the event or transaction,
the total revenue, total operating income, or the total assets of the
Limited Hillside Group or the Ampex Group will be less than ninety
percent (90%) of the total revenue, total operating income, or the
total assets of
-34-
the Limited Hillside Group or the Ampex Group, respectively,
immediately before the effective date of the event or transaction. The
disclosure under this clause (i) shall include the following material
terms of each transaction:
(I) the identity of the parties (including whether the buyer
is a third party, not affiliated, through ownership or management,
with Hillside, Ampex, or with the entity being sold);
(II) a description of the nature of the business of the
entity being sold (including the primary SIC code, major products
manufactured, and other facts that explain the business);
(III) any offering memoranda or financial projections with
respect to the entity being sold, if they have been prepared;
(IV) the estimated price per share and the estimated
aggregate price;
(V) the nature of the consideration; and
(VI) any significant restrictions on the consideration, if
applicable, and a statement regarding the anticipated use of the
proceeds, if known. For purposes of this clause (i)(B), all events or
transactions occurring within any twelve (12) month period shall be
treated as a single event or transaction. All assets shall be valued
on the basis of Fair Market Value;
(ii) Within ten (10) days after the event or transaction, written
notice of any event or transaction involving any member of the Limited
Hillside Group, plus any foreign subsidiary of Teepak, as a result of
which immediately after the effective date of the event or
transaction, the total revenue, total operating income, or the total
assets of the aggregate of the foreign subsidiary and the
-35-
Limited Hillside Group will be less than 90 percent of the total
revenue, total operating income, or the total assets of the aggregate
of the foreign subsidiary and the Limited Hillside Group immediately
before the effective date of the event or transaction. All assets
shall be valued on the basis of Fair Market Value;
(iii) At least thirty (30) days prior to the effective date of
any Hillside Company Distribution or Ampex Company Distribution which
requires the prior approval of the PBGC under Article XI, written
notice of such Company Distribution;
(iv) Within thirty (30) days after the payment of any Hillside
Company Distribution or Ampex Company Distribution which is not
subject to the prior approval of the PBGC under clause (iii), written
notice of such Company Distribution;
(v) Written notice at least thirty (30) days prior to any
transaction which would result in any non-scheduled prepayment in an
aggregate amount of more than $35 million of debt in any twelve (12)
month period by the Limited Hillside Group; provided however, that any
payment made less than thirty (30) days in advance of a scheduled
payment date will not be considered a prepayment for this purpose;
(vi) Written notice 30 days prior to any transaction or
transactions which would merge any or all parts or Teepak, Hillside,
and/or Hillside Industries, except a merger between foreign
subsidiaries of Teepak;
(vii) Within thirty (30) days thereafter, Hillside shall provide
written notice of any contribution made by a member of the Full
Hillside Group to either
-36-
of the Plans and any loan by a member of the Full Hillside Group to a
member of the Ampex Group, and Ampex shall provide written notice of
any Uncertified Sherborne Cash Infusion;
(viii) Within thirty (30) days thereafter, written notice of the
issuance of any preferred stock by any member of the Limited Hillside
Group or the Ampex Group; and
(ix) Within thirty (30) days thereafter, written notice of the
events or transactions specified in clauses (i), (ii) and (iv) of
Section 10.5.
(x) Within thirty (30) days thereafter, Hillside shall provide
written notice of any demand by a member of the Full Hillside Group on
a member of the Sherborne Group for payment of an amount due to a
member of the Full Hillside Group on a note which evidences a
contribution to a Plan, or a loan from, or payment by, a member of the
Full Hillside Group to a member of the Ampex Group for the purpose of
making Required Contributions to a Plan.
Section 10.4 Requested Information. After receipt of written notice
---------------------
from a member of the Ampex Group or the Limited Hillside Group of any event or
transaction or distribution described in clauses (i) or (iv) of Section 10.3,
the PBGC may request from the responsible party any information which is
reasonably necessary to allow the PBGC to determine whether the event or
transaction or distribution would result in the PBGC's possible long run loss
with respect to the Plans reasonably being expected to increase unreasonably
within the meaning of Section 4042(a)(4) of ERISA.
-37-
Section 10.5 Exceptions. Notwithstanding the provisions of Section
----------
10.3, no member of the Ampex Group, the Sherborne Group or the Full Hillside
Group shall be required to provide prior notice or information to the PBGC with
respect to any of the following:
(i) the sale of Media by Ampex; provided that prior to or
coincident with such sale, Ampex has assumed and become the Plan
Sponsor of the Media Plan;
(ii) the confirmation of the NHI plan of reorganization or
issuance of voting stock by Ampex upon the conversion of securities or
exercise of warrants issued as part of the restructuring of Ampex debt
and financing transactions approved by the NHI Bankruptcy Court on
December 21, 1993, or the merger of Xepma I Inc. or Xepma IV Inc. with
NHI in conjunction with such NHI plan of reorganization;
(iii) any transaction necessary to sever the Controlled Group
relationships, if any, between the members of the Ampex Group and the
members of the Full Hillside Group; and
(iv) any transaction necessary to sever the Controlled Group
relationships, if any, between the members of the Ampex Group and the
members of the Sherborne Group.
Section 10.6 Confidentiality.
---------------
(a) General. The PBGC hereby agrees that any information disclosed or
-------
furnished to it pursuant to this Agreement which is designated as confidential
(in the case of a document, through a stamp or other legend appearing on the
document) ("Confidential Information") (i) shall be treated by the PBGC on the
same basis as information described in 29
-38-
C.F.R. Section. 2603.18, and (ii) shall be used by PBGC solely for the purpose
of taking action, if any, in connection with the Plans, and (iii) shall not be
disclosed to anyone other than the PBGC Board of Directors and their
representatives, and PBGC officials, advisors, consultants, and representatives
who have a need to know the information as part of their job responsibilities
("Officials"), except as required by Applicable Law. The PBGC will inform all
Officials having access to the Confidential Information subject to this
Agreement that the Confidential Information is privileged and confidential, and
the PBGC will use its best efforts to cause the Officials to observe the terms
of this Agreement with respect to such Confidential Information.
Excepting such litigation as the PBGC may initiate in the future with
respect to the Plans on its own behalf or on behalf of one or both of the Plans,
the PBGC agrees to (i) notify the party or parties who furnished the
Confidential Information, in writing, of any proceeding or request in which the
disclosure of such Confidential Information may be sought, including any request
made pursuant to, or litigation based upon, the Freedom of Information Act, and
(ii) afford the party or parties who furnished the Confidential Information the
timely opportunity to seek a protective order or to take such other legal action
to preserve the confidentiality of such information as such party may deem
appropriate. In addition, the PBGC agrees to use its best efforts to have placed
under seal any such information that is disclosed as necessary in connection
with any court proceedings.
(b) Exclusions. This Section 10.6 does not apply to information that
----------
is available to the general public, information that was available to or in the
possession of the PBGC prior to the Effective Date (unless such information was
subject to a confidentiality agreement when it was provided to the PBGC and at
all times through the Effective Date), or information that becomes available to
the PBGC on a non-confidential basis (unless the PBGC
-39-
knows or has reason to know that such information has become available to the
PBGC through a breach of some other confidentiality agreement) or from or in
connection with any litigation between the PBGC and the party who furnished the
information. Notwithstanding anything to the contrary in this Agreement, the
PBGC may disclose information about the amount of underfunding in the Plans,
including information about guaranteed benefit liabilities, unfunded benefit
liabilities, Plan assets and funding ratios, whether or not this information is
contained in or derived from the Confidential Information provided under this
Agreement.
ARTICLE XI
RESTRICTIONS ON DIVIDENDS
Section 11.1 With Respect to the Limited Hillside Group. Without the
------------------------------------------
PBGC's consent, which shall not be unreasonably withheld, Hillside Company
Distributions in any fiscal year commencing on or after October 1, 1994 shall
not exceed the greatest of (i) the sum of the Hillside Minimum Allowed Annual
Dividend for such fiscal year and the Unused Dividend Limit, if any, for the two
prior fiscal years (or, in the case of the fiscal year beginning October 1,
1994, for the prior fiscal year), (ii) 50% of HDNI for the immediately preceding
fiscal year or (iii) the amount actually paid during such year for the
redemption for fair value of the common stock of Hillside owned by Xxxx X. Xxxxx
XX or X. Xxxxxxxx Xxxxxx, or both, representing in the aggregate less than 5% of
the equity of Hillside; provided, that in no event shall Hillside Company
Distributions exceed the amount available under applicable state law.
Section 11.2 With Respect to the Ampex Group. Without the PBGC's
-------------------------------
consent, which shall not be unreasonably withheld, Ampex Company Distributions
for any fiscal year commencing on or after January 1, 1995 shall not exceed the
sum of the Ampex Minimum Allowed Annual Dividend for such fiscal year and the
Unused Dividend Limit if any, for the two
-40-
prior fiscal years (or, in the case of the fiscal year beginning January 1,
1995, for the prior fiscal year); provided, however, that no such prior approval
shall be required for Ampex to (i) make mandatory redemption and dividend
payments in respect of its preferred stock, (ii) redeem its preferred stock at
any time in exchange for, or out of the proceeds of, the substantially
contemporaneous sale or exchange of equity securities, and (iii) declare and pay
cash dividends out of surplus available therefor under the Delaware General
Corporation Law, on its common stock on a cumulative basis, in an amount not
exceeding 50% of the Ampex Group's Consolidated Net Income (as defined in the
Certificate of Designations for the Preferred Stock) earned for the period from
April 1, 1994 to the fiscal quarter immediately preceding the proposed payment
date (provided, however, that for purposes of calculating surplus, net assets
shall be determined in accordance with GAAP substantially as reflected in
Ampex's latest balance sheet at the date of this Agreement and the current
negative surplus shall have been eliminated and additional surplus shall have
been created through net profits earned, and/or equity offerings or other
transactions consummated, after the date hereof and not through revaluation of
assets).
Section 11.3 Dividend Allocation Rules. For purposes of determining
-------------------------
the amount of the outstanding carryforward of Unused Dividend Limits under
Sections 11.1 or 11.2, any Hillside or Ampex Company Distribution shall first be
attributed to the earliest year in the carryforward period and shall reduce the
Unused Dividend Limit available for subsequent Hillside or Ampex Company
Distributions. With regard to each Hillside Company Distribution, Hillside shall
determine and give written notice to the PBGC as to whether such distribution is
being made under clause (i), (ii) or (iii) of Section 11.1. If Hillside elects
to make a Hillside Company Distribution under clause (ii) or (iii) of Section
11.1 with respect to any fiscal year, the Unused Dividend Limit of the Limited
Hillside Group for such fiscal year shall be deemed to be
-41-
zero. Hillside may elect to make a Hillside Company Distribution in any fiscal
year under any of clause (i), (ii) or (iii) of Section 11.1, but not more than
one.
Section 11.4 Change of Fiscal Year. In the event Hillside or Ampex
---------------------
changes its fiscal year:
(i) the Hillside Minimum Allowed Annual Dividend and the Ampex
Minimum Allowed Annual Dividend for the short fiscal year shall be
multiplied by a fraction equal to the number of months in the short
fiscal year divided by twelve (12); and
(ii) the Unused Dividend Limit, if any, from the second fiscal
year prior to the short fiscal year which can be carried forward to
the first full year following the short fiscal year, for purposes of
Section 11.1(i) or Section 11.2 (i), shall be multiplied by a fraction
equal to (A) one (1) minus (B) the number of months in the short
fiscal year divided by twelve (12).
ARTICLE XII
DURATION
Section 12.1 Termination of Obligations. The obligations under the
--------------------------
Joint Settlement Agreement shall terminate if any of the following conditions
are met:
(a) both of the Plans are terminated in Standard Terminations;
(b) the senior unsecured debt of Ampex, if any, is rated at least Baa2
by Xxxxx'x and at least BBB by Standard & Poor's. If either Xxxxx'x or Standard
& Poor's does not provide a rating, then at least a BBB rating from Fitch or
Duff and Xxxxxx may be furnished in lieu of a rating from either Xxxxx'x or
Standard & Poor's, but not in lieu of both. If Ampex does not have any rated
senior unsecured debt, it may apply for a theoretical rating of senior
-42-
unsecured debt (having a maturity date of five years or more) from Xxxxx'x and
Standard and Poor's and shall obtain a rating of at least Baa2 from Xxxxx'x and
at least BBB from Standard & Poor's; or
(c) (i) the ratios of Ampex's consolidated Operating Profit to its
Fixed Charges is an average of at least 4.5 for the last three consecutive years
(with such ratio computed separately in each year and then averaged) provided
that such ratio shall be at least 4.5 in the last year of the three year test
period. The consecutive three-year test shall begin no earlier than January 1,
1998, and shall first be achievable after the end of calendar year 2000, and
(ii) Cumulative Operating Profit, beginning January 1, 1995 and
ending with the last consecutive year of the three year test period
chosen in clause
(i), above, is equal to or greater than the following:
Year Ending Cumulative Operating
December 31 Profit of at Least
----------- ------------------
1995-2000 $150 million
2001 and $200 million for the
thereafter year ending 2001 and
increased by $50 million
annually thereafter.
Notwithstanding the foregoing, the obligations of all of the members of the Full
Hillside Group and the Ampex Group under the Joint Settlement Agreement may
terminate under subsection (c) only if at the time the conditions are satisfied
there are no outstanding loans from any member of the Full Hillside Group or
Uncertified Sherborne Cash Infusions to the Ampex Group which have not been
repaid and no outstanding Funding Waivers granted by the IRS to the Plan
Sponsor. If any such loans or Uncertified Sherborne Cash Infusions are
outstanding, or any Funding Waivers are not offset by a credit balance of equal
amount, at a time when the above-
-43-
described termination provisions are satisfied, the Joint Settlement Agreement
shall continue until the loans or Uncertified Sherborne Cash Infusions are
repaid in full by the Ampex Group, and the Funding Waivers have expired or are
offset by a credit balance of equal amount, provided that the conditions under
subsection (c) continue to be satisfied. For purposes of this subsection,
"loans' shall include any minimum funding contributions made by a member of the
Full or Limited Hillside Group (including transfers from the Collateral Account)
or the Sherborne Group to the Systems Plan or the Media Plan that have not been
repaid in cash by Ampex and any direct or indirect cash infusion or credit
support by any member of the Full Hillside Group or Uncertified Sherborne Cash
Infusions into the Plan Sponsor.
ARTICLE XIII
OTHER PENSION PLANS
Section 13.1 Liability of Full Hillside Group. On and after the
--------------------------------
Hillside Severance Date, no member of the Full Hillside Group shall be subject
to any liability whatsoever with respect to any defined benefit pension plan
(other than the Plans) sponsored now or after the Hillside Severance Date by
Buffalo Color or any member of the Ampex Group or the Sherborne Group and
section 4069 of ERISA shall not apply against any member of the Full Hillside
Group with respect to any such pension plan.
Section 13.2 Liability of Ampex Group and Sherborne Group. On and
--------------------------------------------
after the Hillside Severance Date, no member of the Sherborne Group or the Ampex
Group shall be subject to any liability whatsoever with respect to any defined
benefit pension plan sponsored now or after the Hillside Severance Date by any
member of the Full Hillside Group and Section
-44-
4069 of ERISA shall not apply against any member of the Ampex Group or the
Sherborne Group with respect to any such pension plan.
ARTICLE XIV
RELEASES
Section 14.1 Full Hillside Group. After the Hillside Severance Date
-------------------
and prior to an Assumption Date, no member of the Full Hillside Group shall be
subject to any liability under ERISA or otherwise with respect to the Plans,
except as specifically provided herein.
Section 14.2 Sherborne Group. After the date on which the Controlled
---------------
Group relationship between Ampex and each member of the Sherborne Group is
severed, if any exists, no member of the Sherborne Group shall be subject to any
liability under ERISA or otherwise with respect to the Plans, except as
specifically provided herein,
Section 14.3 Xepma I Inc. and Xepma IV Inc. After the date on which
-----------------------------
the Controlled Group relationship between Ampex and Xepma I Inc. and/or Xepma IV
Inc. is severed, if any exists, Xepma I Inc. and Xepma IV Inc. shall not be
subject to any liability under ERISA or otherwise with respect to the Plans,
except as specifically provided herein.
Section 14.4 NH Holding Incorporated. The PBGC agrees that it shall
-----------------------
take the following actions with respect to NHI;
(i) consent to the NHI plan of reorganization in substantially
the same form as the plan or reorganization dated September 29, 1994,
as it may be amended, without seeking recovery from NHI;
(ii) withdraw its claims against NHI with prejudice; and
(iii) agree not to institute termination of the Plans by reason
of any transaction contemplated by the NHI plan of reorganization or
issuance of voting
-45-
stock by Ampex upon the conversion of securities or exercise of
warrants issued as part of the restructuring of Ampex debt and
financing transactions approved by the NHI Bankruptcy Court on
December 21, 1993, or the merger of Xepma I Inc. or Xepma IV Inc. with
NHI in conjunction with such NHI plan of reorganization.
ARTICLE XV
REPRESENTATIONS AND WARRANTIES
Section 15.1 General Representations and Warranties. Each of the
--------------------------------------
members of the Ampex Group, the Limited Hillside Group and the Sherborne Group
represents and warrants to the PBGC with respect to itself and each member of
its respective Group, and the PBGC represents and warrants to each of the
members of the Ampex Group, the Limited Hillside Group and the Sherborne Group,
that it has full power and authority to enter into this Agreement and that this
Agreement constitutes a legal, valid, and binding obligation of each of the
members of the Ampex Group, the Limited Hillside Group and the Sherborne Group
or the PBGC, as the case may be, enforceable against each of the members of the
Ampex Group, the Limited Hillside Group and the Sherborne Group or the PBGC, as
the case may be, in accordance with its terms.
Section 15.2 Additional Representations and Warranties. Each member of
-----------------------------------------
the Ampex Group, Sherborne Group and Limited Hillside Group represents and
warrants to the PBGC with respect to itself and the members of its respective
Group that:
(a) No Violation. As of the date of this Agreement, none of the
execution or delivery by each member of the Ampex Group, the Limited Hillside
Group and the Sherborne Group of this Agreement or any other agreement or
instrument contemplated hereby (i) will violate (A) the certificate of
incorporation or bylaws (or similar governing documents) of such entity or (B)
any indenture, agreement or other instrument to which any member or the Ampex
-46-
Group, the Limited Hillside Group or the Sherborne Group is a party or by which
such entity or any of such entity's property is bound, or (ii) will conflict
with or result in a breach of any of the terms, covenants, conditions or
provisions or any such indenture, agreement or instrument, or constitute (with
notice or lapse of time or both) a default thereunder, or result in the creation
or imposition of (or the obligation to create or impose) any lien upon any
property or assets of any member of the Ampex Group, the Limited Hillside Group
or the Sherborne Group pursuant to any such indenture, agreement or other
instrument.
(b) Pension Plans. As of the Effective Date, except as provided in
-------------
Exhibit C, attached hereto, no member of any Group sponsors a pension plan
subject to Title IV of ERISA. Prior to the Effective Date, the most recent
actuarial valuation of each of the plans listed on Exhibit C has been submitted
to the PBGC.
ARTICLE XVI
GENERAL PROVISIONS
Section 16.1 Entire Agreement. This Agreement, and the Exhibits hereto
----------------
and the Hillside - Ampex/Sherborne Agreement contain the entire and exclusive
agreement and understanding of the parties and supersede all prior agreements,
understandings, commitments and proposals, oral or written, between the parties
relating to the subject matter hereof, and no other agreement or understanding
exists except as expressly set forth herein. The parties agree that should a
court be called upon to interpret any provision of this Agreement, previous
drafts shall not be used by any party in any manner to support its
interpretation of the meaning of this Agreement. Each party and counsel for each
hereto have reviewed this Agreement and have participated in its drafting and,
accordingly, no party shall attempt to invoke the normal rule of construction to
the effect that ambiguities are to be resolved against the drafting party in any
-47-
interpretation or this Agreement and no deference shall be provided to any party
with respect to interpretation of this Agreement.
Section 16.2 Governing Law and Jurisdiction.
------------------------------
(a) State Law. This Agreement shall be interpreted in accordance with
---------
and governed by the law of the State of New York (without regard to choice of
law provisions), except to the extent preempted by Federal law.
(b) Hillside Agent for Service. Each member of the Limited Hillside
--------------------------
Group hereby irrevocably appoints Hillside as its agent for service of process
in respect of any action or proceeding with respect to any dispute arising under
or pertaining to this Agreement.
(c) Ampex Agent for Service. Each member of the Ampex Group hereby
-----------------------
irrevocably appoints Ampex as its agent for service of process in respect of any
action or proceeding with respect to any dispute arising under or pertaining to
this Agreement.
(d) Sherborne Agent for Service. Each member of the Sherborne Group
---------------------------
hereby irrevocably appoints Sherborne Holdings Incorporated as its agent for
service of process in respect of any action or proceeding with respect to any
dispute arising under or pertaining to this Agreement.
(e) Jurisdiction. Any lawsuit or claim arising under or relating to
------------
this Agreement shall be brought in a United States District Court of competent
jurisdiction.
Section 16.3 Modifications. No provision of this Agreement (including
-------------
the Exhibits hereto) may be modified or amended, except pursuant to an agreement
entered into by the PBGC, the members of the Limited Hillside Group, the members
of the Ampex Group and the members of the Sherborne Group evidenced by written
instruments signed by their authorized representatives, and no provision of this
Agreement (including the Exhibits hereto)
-48-
may be waived except pursuant to a written instrument signed by the authorized
representative of the waiving party.
Section 16.4 Authority. Each member of the Ampex Group, the Limited
---------
Hillside Group and the Sherborne Group hereby warrants and represents with
respect to itself and the members of its respective Group that (i) it is a duly
organized and validly existing corporation or other entity and is in good
standing under the laws of the jurisdiction in which it is incorporated or
organized, (ii) it has all requisite power and authority to execute, deliver and
perform this Agreement and each other agreement or instrument contemplated
hereby to which it is or will be a party or by which it or any of its property
is bound and (iii) the execution and delivery of this Agreement by it has been
duly authorized by all necessary corporate or other action and the performance
by it of this Agreement and each other agreement or instrument contemplated
hereby have been duly authorized by all requisite action by it.
The PBGC hereby warrants and represents that it has authority to sign
this Agreement and that all necessary corporate or other appropriate action has
been taken to cause it to possess such authority.
Section 16.5 Notices. Any notice, consent, approval or other
-------
communication required or permitted under this Agreement shall be in writing and
shall be delivered by hand or overnight courier service, sent by telefacsimile
transmission or other wire transmission (with request for assurance of receipt
in a manner customary for communications of such respective type), or by
certified or registered mail, postage prepaid, and shall be deemed duly given
when so delivered or sent by telefacsimile transmission or if sent by overnight
courier service, on the first Business Day after dispatch by overnight courier,
or if sent by certified or registered mail,
-49-
five Business Days after the date of dispatch to the following respective
addressees at the address or telefacsimile number set forth below:
-50-
To Ampex and
members of the
Ampex Group:
Ampex Corporation
000 Xxxxxxxx
Xxxxxxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxx
Telefacsimile No.:
with copies to:
Battle Xxxxxx LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telefacsimile No.: (000) 000-0000
To Sherborne Holdings
Incorporated and
members of the
Sherborne Group:
Sherborne Group Incorporated
Xxxx Xxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx
New York, N.Y. 11022
Attention: Xxxxx XxXxxxxx
Telefacsimile No.:
with copies to:
Battle Xxxxxx LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telefacsimile No.: (000) 000-0000
To Hillside and members of the
Full Hillside Group:
Hillside Capital Incorporated
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx III
Telefacsimile No.: (000) 000-0000
-51-
with copies to:
Stroock & Stroock & Xxxxx
0 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telefacsimile No.: (000) 000-0000
-and-
Patterson, Belknap, Xxxx & Tyler
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telefacsimile No: (000) 000-0000
To the PBGC: Director Corporate Finance and
Negotiation Department
Pension Benefit Guaranty
Corporation
Xxxxx 000
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telefacsimile No.: (000) 000-0000
with copies to:
General Counsel
Pension Benefit Guaranty Corporation
Xxxxx 000
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telefacsinile No.: (000) 000-0000
or to such other entity or entities or to such new or changed address or
addresses or telefacsimile numbers as any entity entitled to notice hereunder
may from time to time designate by notice in accordance with this Section 15.5
to the other party or parties. If the effective date of notice shall fall upon a
day that is not a Business Day, notice shall not be deemed effective until the
next Business Day.
-52-
Section 16.6 No Waiver. No failure of any party to this Agreement to
---------
enforce at any time any of the provisions of this Agreement or to exercise any
option under this Agreement and no course of dealing between or among any member
of the Ampex Group, the Full Hillside Group, the Sherborne Group and/or the PBGC
shall be construed to be a waiver of any such provision or option, or shall in
any way affect the validity of this Agreement or the right of any party to
enforce each and every one of its provisions or options.
Section 16.7 Benefits. This Agreement shall be binding upon and inure
--------
to the benefit of the parties hereto and their respective permitted successors
and assigns. This Agreement shall inure to the benefit of the Additional
Hillside Members and NHI, Xepma I Inc. and Xepma IV Inc. Notwithstanding the
foregoing, none of the members of the Ampex Group, the Full Hillside Group or
the Sherborne Group shall have the right to assign any of its rights hereunder
or interest herein or delegate any obligation hereunder without the prior
written consent of the PBGC. Wherever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to refer to and include
the permitted successors and assigns of such party, and all covenants, promises
and agreements by or on behalf of any party that are contained in this Agreement
shall bind and inure to the benefit of their respective permitted successors and
assigns.
Section 16.8 Execution. This Agreement may be executed in any number
---------
of identical counterparts, each of which shall be an original as against the
party who signed it, and all of which together shall constitute one and the same
instrument. No party to this Agreement shall be bound by this Agreement until a
counterpart has been executed by or on behalf of each party hereto.
-53-
Section 16.9 Captions. The captions to the several Articles and
--------
Sections of this Agreement and the table of contents have been inserted for
convenience of reference only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
Section 16.10 Severability. Any provision of this Agreement that shall
------------
be 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 hereto.
Section 16.11 Survival. The obligations, agreements, indemnities,
--------
representations, and warranties contained in this Agreement shall not be
affected by and shall survive and shall continue in effect following the
execution and delivery of this Agreement and shall be and continue in effect
notwithstanding any waiver of compliance with any of the terms, provisions, or
conditions of this Agreement.
Section 16.12 Effectiveness.
-------------
(a) Hillside-Ampex/Sherborne Agreement Condition. This Agreement shall
--------------------------------------------
cease to be effective in the event that the Hillside-Ampex/Sherborne Agreement
is not executed on or before December 1, 1994 or such later date as to which
Hillside, Ampex and Sherborne Group Incorporated may agree (the
"Hillside-Ampex/Sherborne Agreement Condition"). Pending such execution, this
Agreement shall incorporate and extend the term of the Interim Agreement between
the parties to December 6, 1994 or such later date as to which the parties to
the Interim Agreement may agree; provided, however, that during the period from
the Effective Date to the earlier of (i) the date of execution of the
Hillside-Ampex/Sherborne Agreement or (ii) December 6, 1994 (or such later date
as to which the parties to the Interim Agreement may agree), the provisions of
this Agreement shall override and supersede any contrary terms or
-54-
provisions of the Interim Agreement. If the Hillside-Ampex/Sherborne Agreement
Condition is not satisfied, the parties hereto (other than the PBGC) shall use
their best efforts to conclude the Hillside-Ampex/Sherborne Agreement and all
the parties hereto shall use their best efforts to reach a new settlement
agreement which will avoid the termination of the Systems Plan and the Media
Plan and preserve the primary and back-up liability for the Plans of the Ampex
Group and the Full Hillside Group, respectively, in light of the circumstances
prevailing upon the failure to meet the Hillside-Ampex/Sherborne Agreement
Condition.
(b) NHI Reorganization Condition. Subject to the possible earlier
----------------------------
cessation of effectiveness pursuant to subsection (a), this Agreement shall
cease to be effective in the event that a NHI plan of reorganization is not
confirmed and consummated on or before March 31, 1995 or such later date as to
which the parties hereto may agree (the "NHI Reorganization Condition"). Pending
such confirmation (and assuming prior satisfaction of the
Hillside-Ampex/Sherborne Agreement Condition pursuant to subsection (a)), this
Agreement shall incorporate and extend the Interim Agreement between the parties
to April 30, 1995 or such later date as to which the parties to the Interim
Agreement may agree; provided, however, that during the period from the
Effective Date to the earlier of (i) the date on which the NHI plan of
reorganization is confirmed and consummated or (ii) April 30, 1995 (or such
later date as to which the parties to the Interim Agreement may agree), the
provisions of this Agreement shall override and supersede any contrary terms or
provisions of the Interim Agreement. If the NHI Reorganization Condition is not
satisfied, the parties shall use their best efforts to reach a new settlement
agreement which will avoid the termination of the Systems Plan and the Media
Plan and preserve the primary and back-up liability for the Plans of the Ampex
Group and the Full
-55-
Hillside Group, respectively, in light of the circumstances prevailing upon the
failure to meet the NHI Reorganization Condition.
(c) Interim Agreement-Defined. As used in this Section 16.12, the term
-------------------------
"Interim Agreement" shall have the same meaning as in the eighth recital
paragraph of this Agreement, as amended and extended from time to time as
described in the ninth recital paragraph of this Agreement.
IN WITNESS WHEREOF, the PBGC; Ampex, and each other member of the
Ampex Group; Hillside and each other member of the Limited Hillside Group; and
Sherborne and each other member of the Sherborne Group; have each executed this
Agreement as of the day and year first written above.
PENSION BENEFIT GUARANTY CORPORATION:
By:/s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxxx,
Director, Corporate Finance and
Negotiation Department
-56-
AMPEX GROUP
-----------
AMPEX CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
-------------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
AMPEX MEDIA HOLDINGS INCORPORATED
By: /s/ Xxxxx X. XxXxxxxx
-------------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
AMPEX MEDIA CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
-------------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
AMPEX RECORDING MEDIA CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
-------------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
AMPEX DATA SYSTEMS CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
-------------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
AMPEX FINANCE CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
-------------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
AMPEX INTERNATIONAL CREDIT CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
-------------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
AMPEX INTERNATIONAL SALES CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
AMPEX MEDIA INTERNATIONAL CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
AMPEX LEASING CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
LIMITED HILLSIDE GROUP:
HILLSIDE CAPITAL INCORPORATED
By:/s/ Xxxx X. Xxxxx III
------------------------------------------
Xxxx X. Xxxxx III,
Managing Director
HILLSIDE INDUSTRIES INCORPORATED
By: /s/ Xxxx X. Xxxxx III
-----------------------------------------
Xxxx X. Xxxxx III,
Managing Director
TEEPAK INTERNATIONAL, INC.:
(a Delaware corporation)
By:/s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxxxx,
Vice President
TEEPAK, INC.:
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxxxx,
Vice President
TEEPAK INVESTMENTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
TEEPAK INTERNATIONAL II, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
TEEPAK ACQUISITION CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxxxx, Treasurer
TEEPAK PLASTICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxxxx, Treasurer
SHERBORNE GROUP
---------------
NEWHILL PARTNERS, L.P.
By: Sherborne & Company, Inc., General Partner
By: /s/ Xxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
SHERBORNE HOLDINGS INCORPORATED
By: /s/ Xxxxx X. XxXxxxxx
----------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
SHERBORNE GROUP INCORPORATED
By: /s/ Xxxxx X. XxXxxxxx
----------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
BUFFALO COLOR CORPORATION
By: /s/ Xxxxxxx X. XxXxxxx
----------------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: President and Chief
Executive Officer
Telephone No: 000-000-0000
Fax No: 000-000-0000
BCC INVESTMENTS CO., INC.
By: /s/ Xxxxxxx X. XxXxxxx
----------------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: President
Telephone No: 000-000-0000
Fax No: 000-000-0000
319 HOLDINGS INCORPORATED
By: /s/ Xxxxx X. XxXxxxxx
----------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
NH BOND CORP.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
XEPMA II INC.
By: /s/ Xxxxx X. XxXxxxxx
----------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
XEPMA III INC.
By: /s/ Xxxxx X. XxXxxxxx
----------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
Telephone No: 000-000-0000
Fax No: 000-000-0000
EXHIBIT A
---------
Xxxxxxxxx, Xxxxxxx Xxxx & Xxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
000-000-0000
Memorandum
November 7, 1994
To: Pension Benefit Guaranty Corporation
From: Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx
Subject: Change in Ownership of Newhill Partners, L.P.
--------------------------------------------------------------------------------
It is proposed that the following transactions take place. As a result of those
transactions, any possible controlled group relationship between Hillside
Capital Incorporated (and any other member of the Full Hillside Group) with
Newhill Partners, L.P. ("Newhill") (or any other member of the Sherborne Group)
will be severed.
1. Hillside Industries Incorporated will abandon its entire special limited
partnership interest (i.e., the current 98% interest as well as the residual 1%
----
interest), in effect contributing it to the capital of Newhill, which will
result in the aggregate interest of the limited partners changing from 1% to
99%.
2. Xxxx X. Xxxxx III will sell or otherwise transfer his limited partnership
interest (which on account of item 1. above would then total a 16.236% interest)
of the equity in Newhill to Xxxxx Xxxxxxx, another one or two individuals
unaffiliated with him, and, if desired, Xxxxx XxXxxxxx.
3. Xx. Xxxxx'x wife, Xxxxxx, and the trusts for their children will transfer the
entirety of their interests to Xx. Xxxxx'x sister, Xxxx Xxxxxx, or trusts for
the benefit of her children.
4. Xx. Xxxxx will contribute to the capital of Sherborne & Company Incorporated,
the general partner of Newhill (the "General Partner"), or sell or otherwise
transfer to Xx. Xxxxxxx, all of his 100 shares of Class B Common Stock of that
company.
5. Hillside Industries Incorporated will abandon or contribute to capital the $2
million stated value preferred stock of Sherborne Holdings Incorporated it
holds.
-2-
As a result, neither Xx. Xxxxx, his wife and his children, nor Hillside Capital
Incorporated, Hillside Industries Incorporated, or any of their subsidiaries
would have any equity interest in Newhill or any of its subsidiaries.
In addition, Hillside Capital Incorporated and Newhill Partners, L.P. (or any of
their respective subsidiaries) would not be brother-sister entities as to each
other, within the meaning of Internal Revenue Code Section 414(c) or the
regulations thereunder or, therefore, ERISA Section 4001(a)(14), to the extent,
if any, any of such provisions would otherwise apply, because the resulting
ownership of voting stock of Hillside Capital Incorporated, and of profits and
capital interests in Newhill Partners, L.P., would be as follows:
Owner Hillside Capital Incorporated Newhill Partners L.P.
----- ----------------------------- ---------------------
Xxxx X. Xxxxx III 50.1% --
Xxxxxx X. Xxxxx/1/ 8.2% --
Xxxx W.I. Xxxxxx/2/
and Trust for Droppa Children (with
respect to Newhill Partners, L.P.) 33.4% 33.9966%
Xxxx X. Xxxxx XX/3/ 1.8% --
Xxxxxx Xxxxxxx 4.2% 34.6698%
X. Xxxxxxxx Xxxxxx 2.3% 1.8414%
Xxxxx X. Xxxxxx/4/ -- 1.9998%
Xxxxx X. Xxxxxx/4/ -- 0.9999%
Xxxxxx X Xxxxxx/4/ -- 0.9999%
Xxxxxxx X. Xxxxxx/4/ -- 0.9999%
Trust for children of X. Xxxxxxxx Xxxxxx -- 1.5048%
Sherborne & Company Incorporated -- 1.0%
Xxxxx Xxxxxxx -- 5.7519
Xxxxx Xxxxxxx/2 other unaffiliated/
Xxxxx XxXxxxxx -- 16.236%
---- -------
TOTAL 100% 100%
----------
/1/ Wife of Xxxx X. Xxxxx III
/2/ Sister of Xxxx X. Xxxxx III
/3/ Father of Xxxx X. Xxxxx III
/4/ Adult Child of X. Xxxxxxxx Xxxxxx
EXHIBIT B
---------
--------------------------------------------------------------------------------
ASSIGNMENT, PLEDGE AND SECURITY AGREEMENT
between
Pension Benefit Guaranty Corporation,
as Secured Party
and
[Member of Limited Hillside Group]
----------------------------------
Dated as of
----------------------------------
--------------------------------------------------------------------------------
ASSIGNMENT, PLEDGE, AND SECURITY AGREEMENT, dated as of
(the "Security Agreement"), between [member of
------------------
Limited Hillside Group], a corporation (the "Grantor") and
---------
PENSION BENEFIT GUARANTY CORPORATION, a wholly-owned United States
Government corporation (the "PBGC"), as Secured Party (as hereinafter
defined).
WITNESSETH:
-----------
WHEREAS, the Grantor and the PBGC are parties to the Joint Settlement
Agreement, dated as of November 22, 1994 (as amended or modified from time to
time, the "Joint Settlement Agreement") among the Ampex Group (as therein
defined), the Limited Hillside Group (as therein defined), the Sherborne Group
(as therein defined) and the PBGC, which provides, among other things, for the
mandatory assumption of the Systems Plan and/or Media Plan (each a "Plan", and
together the "Plans") by a member of the Limited Hillside Group under certain
circumstances and for the Limited Hillside Group to have back-up liability for
Termination Liability with regard to the Systems Plan and Media Plan in the
event the Ampex Group does not satisfy the Termination Liabilities with respect
to such Plan or Plans, subject to all the terms and conditions specified in the
Joint Settlement Agreement; and
WHEREAS, the Joint Settlement Agreement provides, subject to the terms
and conditions thereof, that an agreement to secure the obligations of each
member of the Limited Hillside Group to assume the Plans pursuant to Section 3.2
thereof or to make payment of the Termination Liability pursuant to Section 5.2
thereof shall be executed and delivered to the Secured Party; and
WHEREAS, the Grantor and the PBGC now wish to secure the performance
of the Grantor's obligations under Section 3.2 of the Joint Settlement Agreement
and under this Security Agreement and (b) the due and punctual payment of all
monetary obligations of the Grantor under Section 5.2 of the Joint Settlement
Agreement and under this Security Agreement (the foregoing monetary obligations
and the Termination Liability being collectively called the "Indebtedness" and
all the obligations referred to in both clause (a) and clause (b) of this
recital (including the Indebtedness) being referred to collectively as the
"Obligations");
NOW, THEREFORE, the Grantor and the Secured Party (and each of their
respective successors or assigns) hereby agree as follows:
1. Definition of Terms Used Herein. All capitalized terms used herein
-------------------------------
but not defined herein shall have the meanings set forth in the Joint Settlement
Agreement or defined therein by reference to other documents or agreements. As
used herein, the following terms shall have the following meanings:
"Cash Collateral Account" has the meaning set forth in Section 8
-----------------------
hereof.
"Collateral" shall mean (i) the assets of the Grantor, (ii) any and
----------
all Proceeds in respect of any of such assets, and (iii) any and all Proceeds of
Proceeds.
"Event of Default" shall mean the failure of the Grantor to assume the
----------------
Plan or Plans pursuant to Section 3.2 of the Joint Settlement Agreement or to
make payment to the PBGC of the Termination Liability with respect to the Plan
or Plans pursuant to Section 5.2 of the Joint Settlement Agreement, whichever is
applicable.
"Obligations" shall have the meaning assigned to such term in the
-----------
recitals of this Security Agreement.
"Fees" shall mean all costs, indemnities and expenses of the Secured
----
Party described in Section 9 hereof.
"Permitted Investments" shall mean (i) marketable securities issued or
---------------------
directly and unconditionally guaranteed by the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within thirty (30) days from such date;
(ii) marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within thirty (30) days from such date and, at
the time of acquisition thereof, having the highest rating obtainable from
either Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc.; (iii)
commercial paper maturing no more than thirty (30) days from such date and, at
the time of acquisition thereof, having the highest rating obtainable from
either Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc.; and
(iv) certificates of deposit or bankers' acceptances maturing within thirty (30)
days from such date issued by any commercial bank organized under the laws of
the United States of America or any state thereof or the District of Columbia
having unimpaired capital, surplus and undivided profits of not less than
$250,000,000.
"Proceeds" shall mean any consideration received from the sale,
--------
exchange or other disposition of any asset or property which constitutes
Collateral, any value received as a consequence of the possession of any
Collateral, including, without limitation, payments pursuant to or in settlement
of a judgment and payments of principal, interest, and penalties under any
promissory note and any payment received from any insurer or other person or
entity as a result of the destruction, loss, theft, damage or other involuntary
conversion of whatever nature of any asset or property which constitutes
Collateral.
"Secured Party" shall mean the PBGC or any federal agency that may
-------------
succeed to the functions exercised by the PBGC.
"Security Interest" shall have the meaning assigned to such term in
-----------------
Section 2(a).
2. Security Interest; Delivery of Pledged Collateral.
-------------------------------------------------
(a) As security for the payment or performance, as the case may be, of
the Obligations, the Grantor hereby grants, bargains, conveys, assigns, sets
over, mortgages, pledges, hypothecates and transfers to the Secured Party, a
security interest in, all of the Grantor's right, title and interest in, to and
under the Collateral (the "Security Interest"). Without limiting the foregoing,
the Secured Party is hereby authorized to file one or more financing statements
(including fixture filings), continuation statements, or other documents for the
purpose of perfecting, confirming, continuing, enforcing or protecting the
Security Interest granted by the
-2-
Grantor, without the signature of the Grantor, naming the Grantor as debtor and
the Secured Party as secured party.
(b) On the date hereof, the Grantor shall deliver all certificates or
instruments in its possession or under its control representing or evidencing
Collateral to the Secured Party to be held by the Secured Party. All such
certificates or instruments shall be in suitable form for transfer by delivery
or, as applicable, shall be accompanied by the Grantor's endorsement, where
necessary, or duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to the Secured Party.
(c) Notwithstanding anything to the contrary contained herein, the
Security Interest granted hereby, and the security interests granted to the PBGC
by each other member of the Limited Hillside Group pursuant to Section 6.1 of
the Joint Security Agreement, shall not secure any monetary obligations in
excess of the sum of the amounts described in Sections 3.4 and 5.2 of the Joint
Settlement Agreement, and the other amounts owed the Secured Party hereunder and
under the other security agreements which are substantially similar to this
Security Agreement and which have been executed by other members of the Limited
Hillside Group pursuant to Section 6.2 of the Joint Settlement Agreement.
3. Further Assurances. The Grantor agrees, at its expense, to execute,
------------------
acknowledge, deliver and cause to be duly filed all such further instruments and
documents and take all such actions as the Secured Party may from time to time
reasonably request for the better assuring and preserving of the Security
Interest and the rights and remedies created hereby, including, without
limitation, (i) the execution of one or more financing statements (including
fixture filings), continuation statements, or other documents for the purpose of
perfecting, confirming, continuing, enforcing or protecting the Security
Interest and (ii) the payment of any fees and taxes required in connection with
the execution and delivery of this Security Agreement and the granting of the
Security Interest. After the date hereof, if any Collateral not held by the
Secured Party shall consist of or become evidenced by any promissory note, stock
certificate, security agreement, guaranty or other instrument, such note, stock
certificate, security agreement, guaranty or instrument shall be immediately
pledged and delivered to the Secured Party pursuant to this Security Agreement,
duly endorsed in a manner satisfactory to the Secured Party.
4. Taxes; Encumbrances. At its option, the Secured Party, upon five
-------------------
Business Days' notice to the Grantor, may discharge past due taxes or liens at
any time levied or placed on any of the Collateral (other than taxes or liens
for taxes, adjustments, charges or claims which, in each case, are either (i)
not yet due or (ii) are being diligently contested by the Grantor in good faith
by appropriate proceedings and any levy or similar proceeding with respect to
the Collateral has been stayed), and the Grantor agrees to reimburse the Secured
Party on demand for any payment made or any expense incurred by it pursuant to
the foregoing authorization, together with interest, from the date that the
Secured Party makes such payment or incurs such expense at a rate per annum
equal to the prime rate as published in the Money Rates column of The Wall
--------
Street Journal up until a period of 30 calendar days beyond the submission of an
--------------
invoice to the Grantor, and thereafter at a rate per annum of 4% over the prime
rate as published in the Money Rates column of The Wall Street Journal until the
-----------------------
date of repayment thereof in full; provided, however, that nothing in this
--------
Section 4 shall be interpreted as excusing the Grantor from the performance of
any covenants or other promises with respect to taxes, liens, security
-3-
interests or other encumbrances as set forth herein or in the Joint Settlement
Agreement or imposing any obligation on the Secured Party to cure or perform any
covenants or other promises of the Grantor with respect to taxes, assessments,
charges, fees, liens, security interests or other encumbrances as set forth
herein or in the Joint Settlement Agreement.
5. Representations and Warranties of Grantor. The Grantor represents,
-----------------------------------------
warrants and covenants to and with the Secured Party that:
(a) Title to Collateral. Except as set forth on Schedule A hereto, the
-------------------
Grantor owns all of the Collateral, free and clear of any liens (other than
liens created hereby and by the Joint Settlement Agreement), claims or transfer
restrictions.
(b) Validity of Security Interest. Except as set forth on Schedule A
-----------------------------
hereto, the Security Interest constitutes a valid and legal security interest in
all of the Collateral for the payment and performance of the Obligations and the
Collateral is not, and will not be at any time, subject to any Liens, other than
Liens created hereby and by the Joint Settlement Agreement.
6. Payment of Cash Proceeds.
------------------------
(a) The Grantor hereby agrees to take all action that is necessary to
cause any and all cash Proceeds of any Collateral to be deposited directly into
the Cash Collateral Account by any obligor, debtor or payor with respect to any
Collateral. If at any time, notwithstanding the provisions of this Section 6,
the Grantor receives any cash Proceeds of Collateral, then the Grantor shall,
immediately after any such receipt, deposit such cash into the Cash Collateral
Account.
7. Retention of Working Capital. Notwithstanding anything to the
----------------------------
contrary contained in this Security Agreement, if the Grantor is an operating
company, it may retain such amount of cash or other liquid assets (including,
but not limited to, the Proceeds of Collateral which it may receive) as is
reasonably necessary to meet its working capital needs. For purposes of this
Section 7, the Grantor shall be considered an operating company if as of the
date of this Security Agreement it is principally engaged in the production or
sale of a product or service other than the investment of capital.
8. Cash Collateral Account.
-----------------------
(a) The Secured Party shall establish and maintain at such financial
institution as shall be reasonably satisfactory to the Secured Party an account
in the name and under the control of the Secured Party (the "Cash Collateral
Account"). All cash Proceeds of Collateral received by or for the benefit of the
Secured Party pursuant to Section 6 or Section 7 hereof or otherwise shall be
deposited in the Cash Collateral Account and held by the Secured Party as part
of the Collateral and applied in accordance with the terms of this Security
Agreement. Pending said application, any moneys held, in the Cash Collateral
Account shall be invested and reinvested at any time in such Permitted
Investments as the Secured Party shall deem advisable, which Permitted
Investments shall be held in the name and be under the control of the Secured
Party. Any return on or distribution from the Permitted Investments or other
income received by the Secured Party with respect to the balance from time to
time standing to the credit of the Cash
-4-
Collateral Account shall remain, or be deposited and held, in the Cash
Collateral Account, subject to investment, reinvestment and application thereof
in accordance with the terms of this Security Agreement. All right, title and
interest in and to the cash amounts on deposit from time to time in the Cash
Collateral Account, together with any and all Permitted Investments from time to
time made pursuant to this Section 8, shall constitute part of the Collateral
hereunder.
9. Compensation and Expenses and Indemnification of the Secured Party.
------------------------------------------------------------------
The Grantor agrees that it will upon demand pay to the Secured Party:
(a) the amount of any taxes which the Secured Party may have been
required to pay with respect to the Collateral, and
(b) the amount of any and all reasonable expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and of any
other experts, which the Secured Party may reasonably incur in connection with
administration and enforcement of this Security Agreement, including, without
limitation, such expenses as are reasonably incurred to preserve the value of
the Collateral and to collect, sell or otherwise dispose of or transfer any of
the Collateral.
The Grantor agrees to pay, indemnify, and hold the Secured Party, in
its individual capacity, harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, the reasonable fees and disbursements
of counsel) or disbursements of any kind or nature whatsoever which may
reasonably be incurred by the Secured Party with respect to the execution,
delivery, enforcement, performance and administration of this Security
Agreement, except such as result from the gross negligence or willful misconduct
of the Secured Party.
10. Administrative Provisions.
-------------------------
(a) Limitation on Duty of Secured Party in Respect of Collateral.
------------------------------------------------------------
Beyond the exercise of reasonable care in the custody thereof, the Secured Party
shall have no duty as to any Collateral in its possession or control or as to
the preservation of any rights pertaining thereto. The Secured Party shall be
deemed to have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which it accords its own property.
(b) Authority to Take Action. The Secured Party is authorized to take
------------------------
all such action as is expressly provided to be taken by it as Secured Party
hereunder and all other action reasonably incidental thereto. As to any matters
not expressly provided for herein (including, without limitation, the timing and
methods of realization upon the Collateral), the Secured Party shall act or
refrain from acting in accordance with its own discretion. The obligations of
the Secured Party hereunder are only those expressly set forth herein. None of
the Secured Party or its officers, agents or employees shall be liable to the
Grantor or any other person for any action taken or not taken by it in
connection with this Security Agreement in the absence of its own gross
negligence or willful misconduct.
-5-
11. Location of Place of Business; Records and Schedules of Assets.
--------------------------------------------------------------
(a) The Grantor agrees promptly to notify the Secured Party of any
change (i) in its corporate name, (ii) in the location of its principal
executive office or its principal place of business or (iii) in its identity or
corporate structure. The Grantor agrees not to effect or permit any change
referred to in the preceding sentence unless the Secured Party is notified at
least 20 days prior to such change.
(b) The Grantor agrees to maintain complete and accurate records in
all material respects with respect to the Collateral.
12. Protection of Security. The Grantor shall, at its own cost and
----------------------
expense, take any and all actions necessary to defend its right, title or other
interest in and to the Collateral against all persons and to defend the Security
Interest of the Secured Party in the Collateral and the priority thereof.
13. Continuing Obligations of the Grantor. The Grantor shall remain
-------------------------------------
liable to observe and perform all the conditions and obligations to be observed
and performed by it under each contract, agreement, interest or obligation
relating to the Collateral, all in accordance with the terms and conditions
thereof, and shall indemnify and hold harmless the Secured Party from any and
all liability for such performance (such indemnification to survive the
termination of this Security Agreement).
14. Use and Disposition. The Grantor shall not make or permit to be
-------------------
made an assignment, grant of a security interest, pledge, hypothecation or other
transfer of any of the Collateral (other than pursuant hereto); provided that
--------
nothing in this Security Agreement shall restrict or limit the ability of the
Grantor, if no Event of Default is continuing, to exercise or sell or dispose of
or cause to be redeemed by any person that is a Non-Affiliate of the Grantor,
including, without limitation, any discounting at less than face value, any
Collateral on terms believed in good faith by the Grantor to be, in the
aggregate for all such Collateral so exercised, sold, disposed of or redeemed,
considered together, for fair value (the "Sales Proceeds," which in the case of
any exercise shall be calculated net of the aggregate exercise price thereof),
and the Secured Party shall at the request of the Grantor deliver to such person
as the Grantor may designate, in exchange for the Sales Proceeds, all
instruments or certificates held by the Secured Party evidencing the Collateral
for purposes of any such sale, exercise, disposition or redemption.
15. Collections. During the continuance of an Event of Default, the
-----------
Secured Party shall have the right (a) to receive, endorse, assign and/or
deliver any and all notes, acceptances, checks, drafts, money orders or other
evidences of payment relating to the Collateral or any part thereof; (b) to
demand, collect, receive payment of, give receipt for and give discharges and
releases with respect to the Collateral, and to transfer or direct payment of
any such amounts to the Cash Collateral Account; (c) to commence and prosecute
any and all suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect or otherwise realize upon and enforce any
rights in respect of any Collateral; (d) to settle, compromise, adjust or defend
any actions, suits or proceedings relating to or pertaining to all or any of the
Collateral; (e) to notify, or to require the Grantor to notify, any entity
obligated on any
-6-
or all of the Collateral to make payment therefrom directly to the Secured
Party; and (f) to use, sell, assign, transfer, pledge, make any agreement with
respect or otherwise deal with all or any of the Collateral, and to do all other
acts and things necessary to carry out the purposes of this Security Agreement,
as fully and completely as though the Secured Party was the absolute owner of
the Collateral for all purposes; provided, however, that nothing herein
-------- -------
contained shall be construed as requiring or obligating the Secured Party to
make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by the Secured Party, or to present or file any claim or
notice, or to take any action with respect to the Collateral or any part thereof
or the moneys due or to become due in respect thereof or any property covered
thereby, and no action taken by the Secured Party or omitted to be taken with
respect to the Collateral or any part thereof shall, subject to Section 10(a)
hereof and except to the extent resulting from the gross negligence or willful
misconduct of the Secured Party, give rise to (i) any defense, counterclaim or
offset in favor of the Grantor or to any claim or action in connection with the
Obligations or (ii) any other claim or action against the Secured Party. The
provisions of this Section 15 shall in no event relieve the Grantor of any of
its obligations hereunder or under any other documents with respect to the
Collateral or any part thereof or impose any obligation on the Secured Party to
proceed in any particular manner with respect to the Collateral or any part
thereof, or in any way limit the exercise by the Secured Party of any other or
further right which it may have on the date of this Security Agreement or
hereafter, whether hereunder, under any other agreement or instrument or by law
or otherwise.
16. Remedies.
--------
(a) During the continuance of an Event of Default, it is agreed that
the Secured Party shall have the right to take any or all of the following
actions at the same or different times: with or without legal process and with
or without previous notice or demand for performance (except as provided in
subsection (b)), and, generally, to exercise any and all rights afforded to a
secured party or to an assignee of a judgment under the Uniform Commercial Code
of the State of New York or other applicable law. Without limiting the
generality of the foregoing, the Grantor agrees that the Secured Party shall
have the right, subject to the mandatory requirements of Applicable Law, to sell
or otherwise dispose of all or any part of the Collateral, at public or private
sale or at any broker's board or on any securities exchange, for cash, upon
credit or for future delivery as the Secured Party shall deem appropriate. The
Secured Party shall be authorized at any such sale of securities (if it deems it
advisable to do so) to restrict the prospective bidders or purchasers to persons
who will represent and agree that they are purchasing the Collateral for their
own account for investment and not with a view to the distribution or sale
thereof, and upon consummation of any such sale the Secured Party shall have the
right to assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the property
sold absolutely, free from any claim or right on the part of the Grantor, and
the Grantor hereby waives (to the maximum extent permitted by law) all rights of
redemption, stay and appraisal which the Grantor now has or may at any time in
the future have under any rule of law or statute now existing or hereafter
enacted.
(b) The Secured Party shall give the Grantor 15 days' prior written
notice (which the Grantor agrees is reasonable notice within the meaning of
Section 9-504(3) of the Uniform Commercial Code of the State of New York or its
equivalent in other jurisdictions or
-7-
with respect to any law applicable to the assignment of judgments as security,
if applicable) of the Secured Party's intention to make any sale of Collateral.
Such notice, in the case of a public sale, shall state the time and place for
such sale and, in the case of a sale at a broker's board or on a securities
exchange, shall state the board or exchange at which such sale is to be made and
the day on which the Collateral, or portion thereof, will first be offered for
sale at such board or exchange. Any such public sale shall be held at such time
or times within ordinary business hours and at such place or places as the
Secured Party may fix and state in the notice (if any) of such sale. At any such
sale, the Collateral, or portion thereof, to be sold may be sold in one lot as
an entirety or in separate parcels, as the Secured Party may (in its sole and
absolute discretion) determine. The Secured Party shall not be obligated to make
any sale of any Collateral if it shall determine not to do so, regardless of the
fact that notice of sale of such Collateral shall have been given. The Secured
Party may, without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the time and
place fixed for sale, and such sale may, without further notice, be made at the
time and place to which the same was so adjourned. In case any sale of all or
any part of the Collateral is made on credit or for future delivery, the
Collateral so sold may be retained by the Secured Party until the sale price is
paid by the purchaser or purchasers thereof, but the Secured Party shall not
incur any liability in case any such purchaser or purchasers shall fail to take
up and pay for the Collateral so sold and, in case of any such failure, such
Collateral may be sold again upon like notice. At any public sale made pursuant
to this Section 16, the Secured Party may bid for or purchase, free (to the
extent permitted by law) from any right of redemption, stay, valuation or
appraisal on the part of the Grantor (all said rights being also hereby waived
and released to the maximum extent permitted by law), the Collateral or any part
thereof offered for sale and may make payment on account thereof by using any
claim then due and payable to the Secured Party from the Grantor as a credit
against the purchase price, and it may, upon compliance with the terms of sale,
hold, retain and dispose of such property without further accountability to the
Grantor therefor. For purposes hereof, a written agreement no purchase the
Collateral or any portion thereof shall be treated as a sale thereof; the
Secured Party shall be free to carry out such sale pursuant to such agreement,
and the Grantor shall not be entitled to the return of the Collateral or any
portion thereof subject thereto, notwithstanding the fact that after the Secured
Party shall have entered into such an agreement all Events of Default shall have
been remedied and the Obligations paid in full or otherwise performed. As an
alternative to exercising the power of sale herein conferred upon it, the
Secured Party may proceed by a suit or suits at law or in equity to foreclose
this Security Agreement and to sell the Collateral or any portion thereof
pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale
pursuant to the provisions of this Section 16 shall be deemed to conform to
commercially reasonable standards as provided in Section 9-504(3) of the Uniform
Commercial Code of the State of New York or its equivalent in other
jurisdictions.
17. Application of Proceeds. During the continuance of an Event of
-----------------------
Default, the proceeds of any sale of, or other realization upon, all or any part
of the Collateral and any cash or money held by the Secured Party pursuant to
the terms hereof shall be applied by the Secured Party in the following order of
priorities:
first, to payment of the expenses of such sale or other realization,
including without limitation reasonable compensation to agents and counsel
for
-8-
the Secured Party, and all expenses, liabilities and advances incurred or
made by the Secured Party in connection therewith,
second, to the Secured Party for any unpaid Fees, and
third, to the payment of all other Obligations.
Any remaining amounts shall be remitted to the Grantor.
18. Security Interest Absolute. All rights of the Secured Party
--------------------------
hereunder, the Security Interest, and all obligations of the Grantor hereunder
shall be absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Joint Settlement Agreement, any agreement with respect to
any of the Obligations or any other agreement or instrument relating to any of
the foregoing, (b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Joint Settlement Agreement or
any other agreement or instrument, (c) any exchange, release or nonperfection of
any other Collateral, or any release or amendment or waiver of or consent to or
departure from any guaranty, with respect to all or any of the Obligations, or
(d) any other circumstance which might otherwise constitute a defense available
to, or a discharge of, the Grantor in respect of the Obligations or in respect
of this Security Agreement (other than the indefeasible payment in full of all
the Obligations).
19. No Waiver. No failure on the part of the Secured Party to
---------
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law. The
Secured Party shall not be deemed to have waived any rights hereunder or under
any other agreement or instrument unless such waiver shall be in writing and
signed by such parties.
20. Amendment, Modification, Waiver. Neither this Security Agreement
-------------------------------
nor any provision hereof may be waived, amended or modified except pursuant to a
written agreement entered into between the Grantor and the Secured Party.
21. Secured Party Appointed Attorney-in-Fact. Except as otherwise
----------------------------------------
provided herein, the Grantor hereby appoints the Secured Party the
attorney-in-fact of the Grantor for the purpose of carrying out the provisions
of this Security Agreement.
22. Binding Agreement; Assignments. This Security Agreement, and the
------------------------------
terms, covenants and conditions hereof, shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns, except that the Grantor shall not be permitted to assign, delegate or
otherwise transfer any of the rights or obligations of the Grantor hereunder
without the prior written consent of the Secured Party.
23. Obligations Independent. Nothing in this Security Agreement shall
-----------------------
be deemed to eliminate, reduce, replace, limit, modify, restrict or otherwise
affect any (a) requirement, obligation or duty of the Grantor or (b) right,
privilege, power or remedy of the PBGC, in each case, under the Joint Settlement
Agreement and under ERISA and the applicable rules and regulations thereunder or
under any other applicable law, ordinance, rule or regulation.
-9-
24. Governing Law. This Security Agreement shall be construed in
-------------
accordance with and governed by the internal laws of the State of New York
without regard to the conflict of laws principles thereof, except (a) as
otherwise required by mandatory provisions of law and (b) to the extent
preempted by Federal law.
25. Notices. Any notice, consent, approval or other communication
-------
required or permitted under this Security Agreement shall be in writing and
shall be delivered by hand or overnight courier service, sent by telefacsimile
transmission or other wire transmission (with request for assurance of receipt
in a manner customary for communications of such respective type), and shall be
deemed duly given when so delivered or sent by telefacsimile transmission or if
sent by overnight courier service, on the first Business Day after dispatch by
overnight courier, to the following respective addressees at the address or
telefacsimile number set forth below:
To the Grantor:
Telefacsimile No.:
To the Secured Party: Director, Corporate Finance
and Negotiations Department
Pension Benefit Guaranty
Corporation
Xxxxx 000
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telefacsimile No.: (000) 000-0000
with copies to:
General Counsel
Pension Benefit Guaranty Corporation
Xxxxx 000
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telefacsimile No.: (000) 000-0000
or to such other Persons or addresses as any person entitled to notice hereunder
may from time to time designate by notice in accordance with this Section 25 to
the other party or parties. If the effective date of notice shall fall upon a
day that is not a Business Day, notice shall not be deemed effective until the
next Business Day.
26. Severability. In case any one or more of the provisions contained
------------
in this Security Agreement should be held invalid, illegal or unenforceable in
any respect with respect to the Grantor, no party hereto shall be required to
comply with such provision with respect to
-10-
the Grantor for so long as such provision is held to be invalid, illegal or
unenforceable and the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions, the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
27. Section Headings. Section headings used herein are for convenience
----------------
only and are not to affect the construction of, or to be taken into
consideration in interpreting, this Security Agreement.
28. Counterparts: Effectiveness. This Security Agreement may be
---------------------------
executed in any number of counterparts, each of which shall constitute an
original, but all of which, when taken together, shall constitute but one
instrument. This Agreement shall be effective when executed by or on behalf of
all the parties hereto.
29. Termination. This Security Agreement and the Security Interest
-----------
shall terminate when all the Obligations have been satisfied by the Grantor
and/or one or more other members of the Limited Hillside Group in accordance
with the terms of the Joint Settlement Agreement. Upon the termination of this
Security Agreement, the Secured parties shall release all Collateral (including,
but not limited to, the Cash Collateral Account) from the Security Interest, and
shall take such steps, execute such documents and file such statements (or
withdraw or retract previously filed statements) as shall be reasonably
necessary to return to Grantor full right, title and interest in, to and under
the Collateral free and clear of the Security Interest.
-11-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Security Agreement as of the day and year first above written.
--------------------------------------------
as Grantor
by
------------------------
Name:
Title:
PENSION BENEFIT GUARANTY CORPORATION,
as Secured Party
by
------------------------
Name:
Title:
-12-
Schedule A
Liens on assets of
-------------------------
-00-
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
On the day of , 1994, before me personally came
---- -----------------
to me known,
------------------------------------------------------------------
who, being by me duly sworn, did depose and say that s/he resides at
; that s/he is of
-------------------------------------
, the corporations described in and which
------------------------------------
executed the above instrument as Grantor; and that s/he signed her/his name
thereto on behalf of such corporation pursuant to authority of the Board of
Directors of such corporation.
(NOTARIAL SEAL)
------------------------------------
-14-
EXHIBIT C
---------
Hillside Capital Incorporated, Hillside Industries Incorporated and Teepak, Inc.
maintain the following plans subject to Title IV of ERISA:
Teepak Salaried Employees Pension Plan
Teepak, Inc. also maintains the following plans subject to Title IV of ERISA:
Pension Plan for Hourly Paid Employees of Teepak, Inc.'s Service Centers
Pension Plan for Hourly Paid Employees of Teepalk, Inc.'s Danville Plant
The Members of the Ampex Group and the Sherborne Group maintain the following
plans subject to Title IV of ERISA:
Ampex Media Corporation Retirement Plan
Employees' Retirement Plan of Ampex Corporation
Buffalo Color Corporation Hourly Employees' Pension Plan
Buffalo Color Corporation Salaried Employees' Pension Plan
FRIED, FRANK, HARRIS, XXXXXXX & XXXXXXXX
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATION
0000 XXXXXXXXXXXX XXXXXX, X.X., XXXXX 000
XXXXXXXXXX, XX 00000-0000
000-000-0000
FAX 000 000 0000
January 3, 1995
WRITER'S DIRECT LINE
000-000-0000
PRIVILEGED & CONFIDENTIAL
VIA FACSIMILE AND U.S. MAIL
Xxxxxx X. Xxxxxxxxx
Director Corporate Finance and
Negotiations Department
Pension Benefit Guaranty Corporation
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx. I) C. 20005-4026
RE: NHI PLAN OF REORGANIZATION CONSUMMATION
Dear Xx. Xxxxxxxxx:
As you know, the NHI plan of reorganization was confirmed on December 7,
1994. This is to notify you that the NHI plan of reorganization was consummated
on December 29, 1994. Consequently, Section 16.12(b), the NHI Reorganization
Condition, of the Joint Settlement Agreement by and among the Pension Benefit
Guaranty Corporation, The Ampex Group, The Limited Hillside Group, and The
Sherborne Group has been satisfied.
Sincerely,
/s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxxx
cc: Xxxxx Xxxxxx Xxxxx
General Counsel
Pension Benefit Guaranty Corporation
XXXXXXXXXXXX XXXX & XXXXXXXXX
0000 XXXXXX XX XXX XXXXXXXX
24TH FLOOR (000) 000-0000
XXX XXXX, XXX XXXX 00000 facsimile
000-000-0000
September 17, 1996
(000) 000-0000
VIA FACSIMILE
-------------
Xxxxxx Xxxxxxxxxx, Esq.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Re: Correct Address for Quantegy
----------------------------
Dear Xx. Xxxxxxxxxx:
Under the Stock Purchase Agreement between Ampex Corporation, Quantegy
Acquisition Corp., Ampex Media Corporation ("AMC") and Ampex Recording Media
Corporation ("ARMC") as of November 10, 1995, all written notices and
communication required to he made thereunder to AMC or ARMC are to he delivered
to Xxxx X. Xxxxxx at the address below:
Quantegy, Inc.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx Xxxx, XX 00000
Please let me know if you have any questions.
Sincerely,
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxxx
EJJ:dms/7069618
cc: Xxxx X. Xxxxxxxx, Esq.
Xxxxxx X. Xxxxx, Esq.
NEW YORK WASHINGTON LOS ANGELES LONDON PARIS
