Exhibit 10(j)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS AND
ACCORDINGLY MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID
ACT OR LAWS OR PURSUANT TO AN EXEMPTION THEREFROM. THE PRINCIPAL
AMOUNT OF THIS NOTE, AND INTEREST IN RESPECT THEREOF, IS
SUBORDINATED TO THE PAYMENT OF ALL SENIOR INDEBTEDNESS AS PROVIDED
HEREIN AND IS SUBJECT TO SET-OFF, AS DESCRIBED IN THIS NOTE.
PAMCO HOLDINGS, INC.
NON-NEGOTIABLE SUBORDINATED NOTE
DUE JUNE 30, 2001
$2,116,000 Chicago, Illinois
---------- May 20, 1994
FOR VALUE RECEIVED, the undersigned, PAMCO HOLDINGS, INC., a
Delaware corporation (together with its successors, the "Corporation"),
hereby promises to pay to the MSB Family Trust, (together with its
successors and permitted assigns, the "Holder"), at the Holder's office at
0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, the aggregate principal
amount of TWO MILLION ONE HUNDRED SIXTEEN THOUSAND DOLLARS ($2,116,000) on
the installment dates listed in Section 1.2 hereof. Certain capitalized
terms are used in this Note as defined in Section 7.
Section 1. Payment.
1.1 Interest. Subject to Section 3, the outstanding principal amount
of this Note shall bear interest (computed on the basis of a 365 or 366 day
year, as the case may be) at a rate equal to eight percent (8%) per annum
from (but excluding) the date hereof to (and including) the Maturity Date.
Subject to Section 3, such interest shall be payable (i) semi-annually in
arrears, with respect to each six month period (or portion thereof) ending
on June 30 or December 31 on the 120th day following the end of such six
month period ("Interest Payment Dates"), commencing with the period ending
December 31, 1994, and (ii) on the Maturity Date.
1.2 Principal. Subject to Section 3, the corporation shall pay, on
June 30, 2000, an installment of principal on this Note equal to $1,058,000
(or such lesser principal amount then outstanding), and on June 30, 2001,
the entire then outstanding principal amount of this Note.
1.3 Business Days. Whenever payment of principal of, or interest on,
this Note shall be due on a date that is not a Business Day, the date for
payment thereof shall be the next succeeding Business Day and interest due
on the unpaid principal and any other Amounts Payable hereunder shall
accrue during such extension and shall be payable on such succeeding
Business Day.
Section 2. Prepayments; suspension of Payment.
2.1 Optional Prepayment. The Corporation shall have the right to
prepay the principal amount of this Note in whole or in part at any time,
or from time to time, without payment of any premium or penalty whatsoever,
provided that any such prepayments shall be accompanied by all interest
accrued on this Note to the date of prepayment, and any such prepayment
shall be applied to reduce the Corporation's principal payment obligations
under Section 1.2 in the order of maturity of such payment obligations;
provided, however, that so long as any senior Indebtedness remains
outstanding and unpaid, any commitment to provide Senior Indebtedness is
outstanding, or any other amount is owing to the holders of Senior
Indebtedness, this Note may not be prepaid in whole or in part, without the
written consent of the holders of Senior Indebtedness.
2.2 Suspension of Payment. The Corporation shall be entitled to
suspend payment of any Amounts Payable hereunder for any obligations or
liabilities of the Holder to the Corporation or any claims by the
Corporation against the Holder including, without limitation, any
obligations or liabilities to the Corporation under the Subscription
Agreement, the Purchase Agreement (subject to the provisions of Section
11.01 of the Purchase Agreement) or the Noncompetition Agreement. Upon (i)
consent by the Holder; (ii) adjudication to a final nonappealable judgment
or settlement of a claim by a third party against the Corporation (which
forms the basis of the Corporation's claim against Holder); or (iii)
adjudication to a final nonappealable judgment or settlement of a claim by
the corporation against the Holder (which is not based on a third party
claim), the Corporation shall have the right to set off and reduce any
Amounts Payable hereunder (including amounts previously suspended) for any
obligations or liabilities of the Holder to the Corporation or any claims
by the Corporation against the Holder including, without limitation, any
obligations or liabilities to the Corporation under the Subscription
Agreement, the Purchase Agreement or the Noncompetition Agreement. Any
suspension, set off or reduction shall apply to the next payment due and,
if principal and interest are both then due and payable, the suspension,
set off or reduction shall apply to interest first. In the event that any
amount or part of any amount of principal suspended is ultimately set off,
no interest shall be paid after the date of suspension on the amount or
part of the amount of principal ultimately set off. The Holder, by
accepting this Note, hereby acknowledges and agrees to the foregoing
provisions and any subsequent transferee or successor shall be bound by the
foregoing. For purposes of this Section 2.2, Holder shall include Xxxxxxx
X. Xxxxxxxx regardless of the current or then actual holder.
Section 3. Free Cash Flow; Penalty Interest Provisions.
3.1 Payment Limitation. Notwithstanding any other provision of this
Note, the Corporation shall only be required to pay interest, principal or
any other Amounts Payable in respect of this Note if and to the extent the
Corporation's Free Cash Flow for the Corporation's four quarters
immediately preceding the required payment date is sufficient to make such
payment and all payments due under the Other Seller Subordinated Note;
provided, however, the December 31, 1994 payment shall be based on the
Short Year. If the Corporation's Free Cash Flow for such four quarters (or
the Short Year in the case of the December 31, 1994 payment) is not
sufficient to make such payments and all payments due under the Other
Seller Subordinated Note, then such payments will not be made nor be
required to be made under this Note when otherwise due, and the
Corporation's payment obligation under this Note with respect to such
payments will be deferred as provided in this Section 3, and such deferral
of payment will not be an Event of Default under this Note, provided that
the Maturity Date will not be deferred under this Section 3 for more than
two years (i.e. not later than June 30, 2003), at which time, all principal
of, interest on and other Amounts Payable in respect of this Note will be
due and payable (A) without further regard to this Section 3.1, but (B)
with regard to Sections 3.3 and 3.4.
3.2 Interest Limitation. If, as a result of Section 3.1, the
Corporation does not pay interest on an Interest Payment Date, then such
interest will be deferred and be paid pursuant to Section 3.4; provided,
that if the Penalty Interest Provisions of Section 3.5 are waived by
Holder, the deferred interest shall not bear interest and the amount of
such deferred interest in the aggregate will not in any event exceed
$1,100,320 ("Maximum Interest"). Any deferred interest that exceeds the
Maximum Interest will not accrue or be payable under this Note and will be
automatically eliminated.
- 2 -
3.3 Principal and Amounts Payable Deferral. If, as a result of Section
3.1, the Corporation does not pay principal or any other Amounts Payable
(other than interest) on any required payment date, then such principal and
Amounts Payable will be deferred and not be due or payable until the
Maturity Date. If the Penalty Interest Provisions of Section 3.5 are
waived, the deferred principal and Amounts Payable will not bear interest.
3.4 Interest Deferral. If, as a result of Section 3.1, the Corporation
does not pay interest on any required payment date, then such interest will
be deferred and not be due or payable until (i) the Corporation has paid
all accrued interest on and other charges or expenses in connection with
Senior Indebtedness, and (ii) the amount of outstanding obligations for
principal to holders of Senior Indebtedness is equal to or less than (A)
the maximum amount of outstanding obligations for principal due holders of
Senior Indebtedness at any time after the issuance of this Note less (B)
$21,500,000. If the Penalty Interest Provisions of Section 3.5 are waived,
the deferred interest will not bear interest.
3.5 Penalty Interest Provisions. Notwithstanding any provision of this
Note to the contrary, unless waived by the Holder, the following penalty
interest provisions (the "Penalty Interest Provisions") shall apply.
(a) If interest due under this Note is deferred pursuant to
Section 3 or payment is prohibited pursuant to Section 6.2, then such
deferred interest shall accrue interest at a rate of ten percent (10%)
per annum compounded annually until paid.
(b) If principal is deferred pursuant to Section 3 or payment is
prohibited pursuant to Section 6.2, such deferred principal shall
accrue interest at a rate of eight percent (8%) per annum compounded
annually until paid.
(c) The cap on interest in Section 3.2 shall not apply.
(d) Any payments under this Note shall first be applied to
interest on which additional interest is accruing and being compounded
prior to being otherwise allocated as provided in Section 3.6.
3.6 Allocation. If the Corporation's Free Cash Flow for any four
quarters is sufficient to pay some, but not all, of the required payments
under this Note and the required payments due under the Other Seller
Subordinated Note, then such available Free Cash Flow will be allocated
first to required principal payments if then due, second to required
interest payments, and then to required payments of any other Amounts
Payable, provided, further, such available Free Cash Flow will be allocated
52.9% to this Note and 47.1 the Other Seller Subordinated Note.
Section 4. Covenants. The Corporation covenants and agrees that, so
long as any Amounts Payable under this Note remains unpaid:
4.1 Information. The Corporation shall provide to the Holder, as soon
as practicable and in any event within 120 days after the end of each
fiscal year of the Corporation, a consolidated balance sheet of the
Corporation and its Subsidiaries as at the end of such fiscal year, and the
related consolidated statements of income and cash flow for such fiscal
year, prepared in accordance with generally accepted accounting principles,
which will include a calculation of Free Cash Flow for that fiscal year.
4.2 Merger. The Corporation will not consolidate or merge with or into
any other corporation, other than (a) the merger or consolidation of a
Subsidiary with or into the Corporation, (b) a merger pursuant to which the
Corporation is the surviving corporation, or (c) a merger or consolidation
in which the Corporation is not the surviving corporation and pursuant to
which the surviving or consolidated entity assumes the Corporation's
covenants and obligations under this Note.
- 3 -
4.3 Sale of Assets. The Corporation will not sell or otherwise dispose
of all or substantially all of its assets in a single transaction or series
of related transactions unless (a) in connection therewith this Note is
prepaid, or (b) the acquiring entity expressly assumes the Corporation's
obligations under this Note. Upon the assumption by the acquiring entity of
the Corporation's obligations under this Note, the Corporation shall be
released and discharged from its obligations and liabilities hereunder,
without the requirement of further notice or consent from the Holder,
provided, however, if the acquiring entity does not have (i) a net worth
(total assets less total liabilities) immediately after acquiring the
assets of the Corporation that is equal to or in excess of the greater of
(A) the net worth of the Corporation immediately prior to the sale or
disposal or (B) $1,000,000; and (ii) a Required Ratio (as defined below)
less than or equal to 4-3: 1, then the Corporation shall not be released or
discharged without the consent of the Holder, which consent shall not be
unreasonably withheld. "Required Ratio" shall mean (x) the total of all
interest bearing indebtedness for borrowed money less all Amounts Payable
under this Note and under the other Seller Subordinated Note divided by (y)
all Amounts Payable under this Note and under the Other Seller Subordinated
Note plus net worth.
Section 5. Defaults.
5.1 Events of Default. If one or more of the following events ("Events
of Default") shall have occurred and be continuing:
(a) the Corporation shall fail to pay within ten Business Days of
the due date thereof any principal of this Note or shall fail to pay
within ten Business Days of the due date thereof any interest or any
other Amounts Payable hereunder and the same shall not have been cured
within 20 days after written notice thereof has been given by the
Holder to the Corporation;
(b) the Corporation shall fail to observe or perform any covenant
or agreement contained in this Note (other than those covered by
clause (a) above) and the same shall not have been cured within 45
days after written notice thereof has been given by the Holder to the
Corporation, provided, however, an Event of Default shall not have
occurred or be continuing if efforts to cure have commenced within
such 45 days and if such efforts to cure continue to be diligently
pursued after expiration of such 45 day period;
(c) the Corporation shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors; or
(d) an involuntary case or other proceeding shall be commenced
against the Corporation seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 90 days; or an order
for relief shall be entered against the Corporation under the Federal
bankruptcy laws as now or hereafter in effect;
then, and in every such event subject to the provisions of Section 6, the
Holder may, by notice to the Corporation and to the holders of Senior
Indebtedness, declare the principal amount of this Note together with
accrued interest thereon, to be, and such amounts and all other Amounts
Payable shall thereupon become, due and payable on the tenth Business Day
following delivery of such notice to the Corporation and to the holders of
Senior Indebtedness without presentment, demand, protest or further notice
of any kind, all of which are hereby waived by the Corporation; provided,
that (x) the Events of Defaults specified in paragraphs (a) and (b) will be
subject to Section 3, and (y) in the case of any of the Events of Default
specified in paragraph (c) or (d), the entire principal and all other
Amounts Payable shall immediately (and without notice) become due and
payable without presentment, demand, protest or notice of any kind, all of
which are hereby waived by the Corporation.
- 4 -
Section 6. Subordination.
6.1 Loans Subordinated to Senior Indebtedness. Notwithstanding any
provision of this Note to the contrary, the Corporation covenants and
agrees, and the Holder by acceptance of this Note likewise covenants and
agrees, that all Amounts Payable shall be subordinated to the extent set
forth in this Section 6 to the prior payment in full, in cash or cash
equivalents satisfactory to the holders of Senior Indebtedness, of all
Senior Indebtedness (except with respect to payments already made in proper
and full compliance with the terms of this Note). This Section 6 shall
constitute a continuing offer to and covenant with all persons who become
holders of, or continue to hold, Senior Indebtedness (irrespective of
whether such senior Indebtedness was created or acquired before or after
the issuance of this Note). The provisions of this Section 6 are made for
the benefit of all present and future holders of Senior Indebtedness (and
their successors and assigns), and shall be enforceable by them directly
against the Holder.
6.2 Priority and Payment Over of Proceeds in Certain Events.
(a) Upon any payment or distribution of assets of the
Corporation, whether in cash, property, securities or otherwise, in
the event of any dissolution, winding up or total or partial
liquidation, reorganization, arrangement, adjustment, protection,
relief or composition, or assignment for the benefit of creditors of
the Corporation, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership, reorganization, relief or other proceedings
or upon an assignment for the benefit of creditors or any other
marshalling of all or part of the assets and liabilities of the
Corporation (the foregoing events herein collectively referred to as
an "Insolvency Event"), all Senior Indebtedness shall first be paid in
full, in cash, or payment provided for in cash equivalents in a manner
satisfactory to the holders of Senior Indebtedness, before the Holder
shall be entitled to receive any payment or distribution of assets of
the Corporation relating to any Amounts Payable. Upon any Insolvency
Event, any payment or distribution of assets of the Corporation (not
previously made in proper and full compliance with the terms of this
Note), whether in cash, property, securities or otherwise, to which
the Holder would be entitled relating to any Amounts Payable, except
for the provisions of this Section 6, shall be made by the Corporation
or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making such payment or distribution, directly to the
holders of the Senior Indebtedness or their representatives for
application to the payment or prepayment of all such Senior
Indebtedness in full after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
(b) If (x) there has occurred and is continuing a default in the
payment of all or any portion of any Senior Indebtedness, unless and
until such default shall have been cured or waived, the Corporation
shall not make any payment on or with respect to any Amounts Payable
or acquire this Note (or any portion thereof) for cash, property,
securities or otherwise; or (y) an event (not involving the
non-payment of any Senior Indebtedness) shall have occurred or, with
the giving of notice, or passage of time, or both, would occur, that
would allow holders of any Senior Indebtedness to accelerate or
otherwise demand the payment thereof, and the holders of the Senior
Indebtedness give notice of such event to the Corporation and the
Holder (the date that such notice is received by the Corporation is
the "Notice Date"), the Corporation shall not make any payment on or
with respect to any Amounts Payable or acquire this Note (or any
portion hereof) for cash, property, securities or otherwise during the
period (the "Blockage Period") commencing on the Notice Date and
ending on the earlier of (1) two years after the Notice Date if at the
end of such two year period such event is not the subject of judicial
proceedings and such Senior Indebtedness shall not have been
accelerated, (2) the date such event is cured or waived to the
satisfaction of the holders of the Senior Indebtedness, (3) the date
the holders of such Senior Indebtedness shall have given notice to the
Corporation of the voluntary termination of the Blockage Period, or
(4) June 30, 2003. By virtue of accepting this Note and the benefits
hereof, during any time period during which payment of any part of
Amounts Payable due under this Note is prohibited by any of the terms
of this Note, the Holder shall not be entitled, and will not take any
action, including any judicial process, to accelerate, demand payment
- 5 -
or enforce any Indebtedness in respect of this Note or any other claim
with regard to any Amounts Payable until after June 30, 2003. For
purposes of clause (x) of the first sentence of this Section 6.2(b),
(A) no default in the payment of the principal portion of the Senior
Indebtedness shall be considered to have occurred so long as principal
payments in at least the amounts set forth in Exhibit A have occurred
(and such amounts have not been reborrowed by the Corporation); and
(B) any payments of principal on the Senior Indebtedness shall be
considered payments of the principal amounts set forth in Exhibit A in
the order of maturity.
(c) If, notwithstanding the foregoing provisions of Section 6
prohibiting payments or distributions, the Holder shall have received
any payment of, or on account of, any Amounts Payable that was
prohibited by this Section 6, before all Senior Indebtedness shall
have been paid in full, then and in such event such payments or
distributions shall be received and held in trust for the holders of
the Senior Indebtedness and promptly paid over or delivered to the
holders of the Senior Indebtedness remaining unpaid thereof to the
extent necessary to pay in full, in cash or cash equivalents
satisfactory to the holders of the Senior Indebtedness, such Senior
Indebtedness in accordance with its terms after giving effect to any
concurrent payment or distribution to the holder of such Senior
Indebtedness, provided, that any such payment which is, for any
reason, not so paid over or delivered shall be held in trust by the
Holder for the holders of Senior Indebtedness.
(d) So long as any Senior Indebtedness remains outstanding, or
the commitment to make credit extensions of said Senior Indebtedness
shall not have been terminated, the Holder will not be entitled to
take, demand or receive, directly or indirectly, by setoff,
redemption, purchase or in any manner, any voluntary prepayment or
other payment of any Amounts Payable in amounts or in a manner which
are in violation of the provisions of this Section 6.
(e) Upon any payment or distribution of assets referred to in
Section 6.2(a), the Holder shall be entitled to rely upon any order or
decree of a court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, and
upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making any such payment or distribution
of assets, delivered to the Holder for the purpose of ascertaining the
persons entitled to participate in such distribution of assets, the
holders of Senior Indebtedness and other Indebtedness of the
Corporation, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Section 6.
- 6 -
6.3 Rights of Holders of Senior Indebtedness Not To Be Impaired, etc.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce the subordination and other terms and
conditions provided herein shall at any time in any way be prejudiced
or impaired by any act or failure to act by any such holder, or by any
noncompliance by the Corporation, with the terms and provisions and
covenants herein regardless of any knowledge thereof any such holder
may have or otherwise be charged with.
(b) This Section 6 may not be amended without the written consent
of each holder of the Senior Indebtedness and of the Holder, and any
purported amendment without such consent shall be void. No holder of
Senior Indebtedness shall be prejudiced in such holder's right to
enforce the subordination and other terms and conditions of this Note
by any act or failure to act by the Corporation or anyone in custody
of its assets or property.
6.4 Subrogation. Subject to and upon the payment in full of all Senior
Indebtedness, the Holder shall be subrogated, to the extent of payments or
distributions made to the holders of Senior Indebtedness pursuant to or
by reason of this Section 6, to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of assets of the
Corporation made on such Senior Indebtedness until all amounts due under
this Note shall be paid in full; and for the purposes of such subrogation,
no payments or distributions to holders of such Senior Indebtedness of any
cash, property or securities to which the Holder would be entitled except
for the provisions of this Section 6, and no payment over pursuant to the
provisions of this Section 6 to holders of such Senior Indebtedness by the
Holder, shall, as among the Corporation, its creditors (other than holders
of such Senior Indebtedness) and the Holder be deemed to be a payment by
the Corporation to or on account of such Senior Indebtedness, it being
understood that the provisions of this Section 6 are solely for the purpose
of defining the relative rights of the holders of such Senior Indebtedness,
on the one hand, and the Holder, on the other hand.
6.5 Obligations of the Corporation Unconditional. Nothing contained in
this Note is intended to or shall impair, as between the Corporation and
the Holder, the obligation of the Corporation, which is absolute and
unconditional, to pay to the Holder all Amounts Payable, as and when the
same shall become due and payable in accordance with their terms, or to
affect the relative rights of the Holder and other creditors of the
Corporation (other than the holders of Senior Indebtedness), except as
provided in Section 6.2(b).
6.6 Section 6 Not To Prevent Events of Default. The failure to make a
payment of any Amount Payable by reason of any provision of this Section 6
shall not be construed as preventing the occurrence of an Event of Default
under Section 5.1 hereof, except as provided in Section 6.2(b).
6.7 Additional Rights of Holders of Senior Indebtedness. If the Senior
Indebtedness has not been paid in full, in cash or cash equivalents
satisfactory to the holders of Senior Indebtedness, at a time in which the
corporation is subject to an Insolvency Event, (a) the holders of the
Senior Indebtedness are hereby irrevocably authorized, but shall have no
obligation, to demand, sue for, collect and receive every payment or
distribution received in respect of any such Insolvency Proceeding and give
acquittance therefor and to file claims and proofs of claim, as their
interests may appear, and (b) the Holder shall duly and promptly take, for
the account of the holders of the Senior Indebtedness, as their interests
may appear, such actions as the holders of the Senior Indebtedness may
request to collect and receive all Amounts Payable by the Corporation in
respect of this Note and to file appropriate claims or proofs of claim in
respect of this Note. Upon request by the Corporation, the Holder of this
Note shall deliver to the holders of Senior Indebtedness or parties
- 7 -
contemplating becoming holders of Senior Indebtedness a written statement
confirming that (i) the provisions (including the subordination provisions)
of this Note are in full force and effect; and (ii) that such party is or
will be entitled to rely upon and enjoy the benefits of the provisions
(including the subordination provisions) of this Note as a holder of Senior
Indebtedness.
6.8 Senior Indebtedness Changes. By virtue of accepting this Note and
the benefits hereof, the Holder hereby waives any and all notice of
renewal, extension or accrual of any of the Senior Indebtedness, present or
future, and agrees and consents that without notice to or consent of the
Holder: (a) the obligations and liabilities of the Corporation or any other
party or parties under the Senior Indebtedness may, from time to time, in
whole or in part, be renewed, refinanced, replaced, extended, refunded,
modified, amended, accelerated, compromised, supplemented, terminated,
increased, decreased, sold, exchanged, waived or released; (b) the holders
of Senior Indebtedness and their representatives may exercise or refrain
from exercising any right, remedy or power granted by any document
creating, evidencing or otherwise related to the Senior Indebtedness or at
law, in equity, or otherwise, with respect to the Senior Indebtedness or in
connection with any collateral security or lien (legal or equitable) held,
given or intended to be given therefor (including, without limitation, the
right to perfect any lien or security interest created in connection
therewith); (c) any and all collateral security and/or liens (legal or
equitable) at any time, present or future, held, given or intended to be
given for the Senior Indebtedness, and any rights or remedies of the
holders of Senior Indebtedness and their representatives in respect
thereof, may, from time to time, in whole or in part, be exchanged, sold,
surrendered, released, modified, perfected, unperfected, waived or extended
by the Holders and their representatives; (d) any balance or balances of
funds with any holder of Senior Indebtedness at any time standing to the
credit of the Corporation or any guarantor of any of the Senior
Indebtedness may, from time to time, in whole or in part, be surrendered or
released; all as the holders of Senior Indebtedness, their representatives
or any of them may deem advisable and all without impairing, abridging,
diminishing, releasing or affecting the subordination to the Senior
Indebtedness provided for herein; and (e) the corporation may incur any
amount or type of Senior Indebtedness (including Senior Indebtedness owed
to Affiliates), or modify, restate, refinance, replace or amend any Senior
Indebtedness from time to time, on terms and conditions acceptable to the
Corporation, without notice to or approval by the Holder. Notwithstanding
anything above to the contrary, the amount of Senior Indebtedness shall not
exceed $30,000,000.
6.9 Waivers. In the event the holders of Senior Indebtedness elect to
exercise their remedies to liquidate any collateral given to secure the
Senior Indebtedness, the Holder hereby waives any right it may have to
contest the validity of or the value obtained as a result of the exercise
of remedies by the holders of Senior Indebtedness, including, but not
limited to, a foreclosure, a sale pursuant to the Uniform Commercial Code
or the acceptance by the holders of Senior Indebtedness in lieu of
foreclosure. The Holder further waives any right it may have either in or
out of any bankruptcy or similar proceeding to challenge any action taken
by the holders of Senior Indebtedness as either a preference or fraudulent
conveyance and further agrees not to take any active role in such a
proceeding other than the filing of claim in any such proceeding, which
claim shall be subordinate (to the extent set forth above) to the claims of
the holders of Senior Indebtedness.
- 8 -
Section 7. Definitions. For purposes of this Note, the following terms
have the meanings set forth below.
"Affiliate" means Jordan Industries, Inc. and its respective
direct and indirect Subsidiaries, and any other person that directly, or
indirectly through one or more intermediaries, controls or is controlled by
or is under common control with them.
"Amounts Payable" means all principal of, interest on, premium, if
any, fees, costs, expenses, indemnities or any other amounts due from the
Corporation under this Note, and all claims against or liabilities of the
Corporation in respect of this Note.
"Business Day" means any day except a Saturday, Sunday or other
days on which commercial banks in New York City are required or authorized
by law to close.
"Capital Expenditures" means the capital expenditures of the
Corporation, determined in accordance with generally accepted accounting
principles, consistently applied.
"Closing Date" shall mean the date on which the transactions
contemplated by the Purchase Agreement are consummated.
"Default" means any condition or event that constitutes an Event
of Default or that with notice or lapse of time or both would, unless cured
or waived, become an Event of Default.
"Free Cash Flow" means for any four quarter period (or the Short
Year in the case of the December 31, 1994 interest payment), (i) the
consolidated net income (or net deficit) of the Corporation and its
subsidiaries (excluding, however, (A) all extraordinary and other
non-recurring items of income, but not loss, and (B) all interest income as
reflected in the Corporation's financial statements); plus (ii) interest
(including deferred financing fees and expense) and other expense in
respect of the Corporation's Indebtedness (including intercompany
Indebtedness or Indebtedness owed to Affiliates) charged, accrued or
otherwise allocated against such net income; plus (iii) expenses for
amortization charged, accrued or otherwise allocated against such net
income (including amortization of the noncompetition payment made pursuant
to the Noncompetition Agreement); plus (iv) expenses for depreciation
(including increased depreciation and increased inventory values resulting
from purchase accounting in connection with acquisitions and business
combinations) charged, accrued or otherwise allocated against such net
income; plus (v) any reductions in Working Capital from the beginning to
the end of such period; minus (vi) payments of interest and principal on
Indebtedness (other than required interest and principal payments on this
Note and the Other Seller Subordinated Note paid or accrued during the last
(i.e., most recent) two quarters of such four quarter period, and, with
respect to the Short Year, other than all interest and principal payments
on this Note and the Other Seller Subordinated Note paid or accrued during
the Short Year) paid or accrued during such period or otherwise payable on
the applicable payment date, provided, however, without the prior consent
of Holder, (A) the aggregate amount of the principal payments on the Senior
Indebtedness included in this calculation of Free Cash Flow shall equal the
amount set forth in Exhibit A for the period in question, whether or not
paid during such period; and (B) the amount of interest on Senior
- 9 -
Indebtedness shall not exceed that amount that would be paid or accrued if
rate of interest was 10.75% per annum (or 12.75% per annum if such rate is
then being paid pursuant to the terms of such Senior Indebtedness); minus
(vii) any increases in Working Capital from the beginning to the end of
such period; minus (viii) Capital Expenditures during such period. Free
Cash Flow will reflect expenses resulting from the Management Consulting
Agreement between the Corporation and TJC Management Corporation and the
Management Consulting Agreement between the Corporation and J2, Inc. Free
Cash Flow will be determined by the Corporation's Board of Directors by
reference to the Corporation's financial statements, prepared in accordance
with generally accepted accounting principles, consistently applied. Free
Cash Flow shall always be calculated on the basis of the rolling four
quarters prior to the date for which Free Cash Flow is being calculated.
"Indebtedness" means any indebtedness (including, without
limitation, Senior Indebtedness) whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof) or representing the deferred and unpaid balance of the purchase
price of any property (including pursuant to capital leases), and any
financial hedging obligations, if and to the extent such indebtedness
(other than a financial hedging obligation) would appear as a liability
upon a balance sheet of such person prepared on a consolidated basis in
accordance with generally accepted accounting principles, other than a
trade payable or accrued expense, and also includes, to the extent not
otherwise included, the guarantee of items that would be included within
this definition.
"Maturity Date" means June 30, 2001 subject to extension to a
later date as provided by the terms of this Note, but in no event shall it
mean a date later than June 30, 2003.
"Noncompetition Agreement" means the Employment and Noncompetition
Agreement between the Corporation and Xxxxxxx X. Xxxxxxxx dated as of the
Closing Date.
"Note" means this Non-Negotiable Subordinated Note due June 30,
2001.
"Other Seller Subordinated Note" shall mean the Non-Negotiable
Subordinated Note in the original principal amount of $1,884,000 issued by
the Corporation to the Xxxxxxx Xxxxx Xxxxxxxx Family Trust on the Closing
Date.
"Purchase Agreement" means the Agreement for Purchase and Sale of
Stock dated as of May 19, 1994, among Xxxx X. Xxxxxxx and Xxxxxxx X.
Xxxxxxxx, as co-trustees of the Xxxxxxx Xxxxx Xxxxxxxx Family Trust UTI
dated August 12, 1981, as amended, Xxxxxx Xxxxxxxxx and Xxxxxxx X.
Xxxxxxxx, as co-trustees of the MSB Family Trust dated June 25, 1993, as
amended, Xxxxxxx X. Xxxxxxxx and the Corporation as the same has been or
may be amended from time to time.
"Senior Indebtedness" shall mean the principal, interest
(including any interest accruing subsequent to an event specified in
Sections 5.1(c) and .5.1(d)), premium, if any, fees (including, without
limitation, any commitment, agency, facility, structuring, restructuring or
other fee), costs, expenses, indemnities, and other amounts due on or in
connection with any Indebtedness of the Corporation (including, without
limitation, intercompany Indebtedness), now or herewith incurred, or any
documents executed under or in connection therewith, and any amendments,
modifications, deferrals, renewals or extensions of such Indebtedness, and
any amounts owed in respect of any Indebtedness incurred in refinancing,
replacing or refunding the foregoing (including any refinancing, replacing
or refunding with new lenders), unless the terms of such Indebtedness
expressly provide that such Indebtedness is not Senior Indebtedness with
respect to this Note, provided, however, in no event shall the amount of
Senior Indebtedness exceed $30,000,000. Indebtedness owed to Affiliates
- 10 -
will be Senior Indebtedness for purposes of this Note. Notwithstanding
anything herein to the contrary, Senior Indebtedness shall include any
payables, accrued expenses, fees or other amounts due to J2, Inc., Jordan
Industries, Inc., TJC Management Corporation or any affiliate of such
entities. Notwithstanding anything herein to the contrary, none of the
obligations or liabilities under or in connection with the Other Seller
Subordinated Note or this Note shall be included in Senior Indebtedness.
"Short Year" shall mean the period between the Closing Date and
December 31, 1994.
"Subscription Agreement" means the Subscription Agreement between
the Corporation, J2, Inc. and Xxxxxxx X. Xxxxxxxx dated as of the Closing Date.
"Subsidiary" of a person means any corporation or other entity of
which securities or other ownership interests having ordinary voting power
to elect a majority of the Board of Directors or other persons performing
similar functions are at the time directly or indirectly owned by such
person.
"Working Capital" means the difference of (a) the sum of
Corporation's net account receivables, inventories (net of reserves), and
prepaid expenses, minus (b) the sum of accounts payable and accrued
expenses, determined in accordance with generally accepted accounting
principles, consistently applied.
Section 8. Miscellaneous.
8.1 Notices. All notices, requests and other communications to any
party hereunder shall be in writing and shall be delivered personally, sent
by facsimile transmission or sent by certified, registered or express mail,
postage prepaid, and shall be deemed given when so delivered personally, or
sent by facsimile transmission, or if mailed or sent by overnight courier,
upon receipt thereof, as follows:
If to the Corporation to:
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxx X. XxXxxx
c/o J2, Inc.
ArborLake Centre, Suite 000
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
- 11 -
with a copy to:
X. Xxxxxx Xxxxxx, Esq.
Xxxxxx X. Xxxxx, Esq.
Xxxxx, Gill, Xxxxxx & Xxxxx,
a Professional Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
If to the Holder, to:
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a copy to:
Xxxxxx Xxxxxxxxx, Esq.
Xxxx X. Xxxxxxx, Esq.
Levenfeld, Xxxxxxxxx, Janger,
Xxxxxxxxx, Xxxxxxx & Xxxxxx
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
Each party may, by notice given in accordance with this Section to the
other party, designate another address or person for receipt of notices
hereunder.
8.2 No Waivers. No failure or delay by the Holder in exercising any
right, power or privilege hereunder or under this Note shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law. No
notice to or demand on the corporation in any case shall entitle the
Corporation to any other or further notice or demand in related or similar
circumstances requiring such notice.
8.3 Amendments and Waivers. Any provision of this Note may be amended
or waived if, but only if, such amendment or waiver is in writing, signed
by the Corporation and the Holder.
8.4 Successors and Assigns. The provisions of this Note shall be
binding upon and inure to the benefit of the Holder and its respective
successors and permitted assigns. Without the prior written consent of the
Corporation and the holders of Senior Indebtedness, the Holder of this Note
agrees that it will not (a) sell, assign, pledge or otherwise transfer, in
whole or in part, directly or indirectly, this Note or any interest therein
or (b) create, incur or suffer to exist any security interest, lien, charge
or other encumbrance whatsoever upon this Note. Such consent shall not be
unreasonably withheld in connection with a request for an assignment
involving a spouse of Xxxxxxx X. Xxxxxxxx or an assignee who is the mother
of Xxxxxxx X. Xxxxxxxx or lineal descendants of the mother of Xxxxxxx X.
Xxxxxxxx or an inter-vivos trust for the benefit of such spouse, mother or
lineal descendant. Without limitation, reasonable conditions to any
transfer may include the requirement for an opinion of counsel as to
compliance of any requested assignment with applicable federal and state
securities laws. If requested by a holder of Senior Indebtedness as part of
any consent, the assignee or transferee of the Holder shall agree in
writing to be bound by all of the terms of this Note. The holder hereof
hereby waives proof of reliance hereon by the holders of Senior
Indebtedness.
- 12 -
8.5 Replacement Note. Upon receipt of evidence reasonably satisfactory
to the Corporation of the loss, theft, destruction or mutilation of this
Note and of a letter of indemnity reasonably satisfactory to the
Corporation from the Holder and upon reimbursement to the Corporation of
all reasonable expenses incident thereto, and upon surrender or
cancellation of this Note, if mutilated, the Corporation will make and
deliver a new Note of like tenor in lieu of such lost, stolen, destroyed or
mutilated Note.
8.6 Company Obligations. The Holder agrees and acknowledges that this
Note and the Corporation's obligations hereunder and for all Amounts
Payable are solely obligations and liabilities of the Corporation. None of
the Corporation's directors, officers, employees, stockholders, advisors,
consultants and affiliates or any other persons shall be obligated or
liable in respect of this Note or any Amounts Payable, and Holder hereby
releases them from any such obligation of liability.
8.7 LITIGATION. THIS NOTE SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, AND
NO DOCTRINE OF CHOICE OF LAW SHALL BE USED TO APPLY ANY LAW OTHER THAN THAT
OF ILLINOIS, AND NO DEFENSE, COUNTERCLAIM OR RIGHT OF SET-OFF GIVEN OR
ALLOWED BY THE LAWS OF ANY OTHER STATE OR JURISDICTION, OR ARISING OUT OF
THE ENACTMENT, MODIFICATION OR REPEAL OF ANY LAW, REGULATION, ORDINANCE OR
DECREE OF ANY FOREIGN JURISDICTION, BE INTERPOSED IN ANY ACTION HEREON.
SUBJECT TO SECTION 8.8, THE PARTIES AGREE THAT ANY ACTION OR PROCEEDING TO
ENFORCE OR ARISING OUT OF THIS NOTE MAY BE COMMENCED IN THE STATE COURTS,
OR IN THE UNITED STATES DISTRICT COURTS IN CHICAGO, ILLINOIS. THE PARTIES
CONSENT TO SUCH JURISDICTION, AGREE THAT VENUE WILL BE PROPER IN SUCH
COURTS AND WAIVE ANY OBJECTIONS BASED UPON FORUM NON CONVENIENS. THE CHOICE
OF FORUM SET FORM IN THIS SECTION 8.7 SHALL NOT BE DEEMED TO PRECLUDE THE
ENFORCEMENT OF ANY ACTION UNDER THIS AGREEMENT IN ANY OTHER JURISDICTION.
8.8 ARBITRATION. THE HOLDER HEREBY WAIVES AND SHALL NOT SEEK JURY
TRIAL IN ANY LAWSUIT, PROCEEDING, CLAIM, COUNTERCLAIM, DEFENSE OR OTHER
LITIGATION OR DISPUTE UNDER OR IN RESPECT OF THIS NOTE. THE HOLDER AGREES
THAT ANY SUCH DISPUTE RELATING TO OR IN RESPECT OF THIS NOTE, ITS
NEGOTIATION, EXECUTION, PERFORMANCE, SUBJECT MATTER, OR ANY COURSE OF
CONDUCT OR DEALING OR ACTIONS UNDER OR IN RESPECT OF THIS NOTE, SHALL BE
SUBMITTED TO, AND RESOLVED EXCLUSIVELY PURSUANT TO ARBITRATION IN
ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN
ARBITRATION ASSOCIATION. SUCH ARBITRATION SHALL TAKE PLACE IN CHICAGO,
ILLINOIS AND SHALL BE SUBJECT TO THE SUBSTANTIVE LAW OF THE STATE OF
ILLINOIS. DECISIONS PURSUANT TO SUCH ARBITRATION SHALL BE FINAL, CONCLUSIVE
AND BINDING ON THE PARTIES. UPON THE CONCLUSION OF ARBITRATION, THE PARTIES
MAY APPLY TO ANY COURT OF THE TYPE DESCRIBED IN SECTION 8.7 TO ENFORCE THE
DECISION PURSUANT TO SUCH ARBITRATION.
PAMCO HOLDINGS, INC.
By:
----------------------------------------
Xxxxx X. XxXxxx, Vice President
- 13 -
EXHIBIT A TO
NON-NEGOTIABLE SUBORDINATED NOTE
Senior Indebtedness - Principal Xxxxxxx
(stated in millions of dollars)
Second First Second First Second First Second First
6 Mo. 6 Mo. 6 Mo. 6 Mo. 6 Mo. 6 Mo. 6 Mo. 6 Mo.
1994 1995 1995 1996 1996 1997 1997 1998
---- ---- ---- ---- ---- ---- ---- ----
0.500 0.500 0.700 0.700 0.950 0.950 1.250 1.250
Second First Second First Second First Second First
6 Mo. 6 Mo. 6 Mo. 6 Mo. 6 Mo. 6 Mo. 6 Mo. 6 Mo.
1998 1999 1999 2000 2000 2001 2001 2002
---- ---- ---- ---- ---- ---- ---- ----
1.575 1.575 0.950 0.950 1.350 1.350 2.850 2.850
Second
6 Mo.
2002
----
Outstanding
Principal
Balance
- 14 -
