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Exhibit 10.5
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BBOX HOLDING COMPANY
HOLDING COMPANY
GUARANTEE AGREEMENT
Dated as of November 21, 1996
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TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS 1
Section 1.1 Definitions 1
Section 1.2 Other Definitions 2
ARTICLE II. THE GUARANTEE 2
Section 2.1 Holding Company Guarantee of Payment and
Performance of Obligations 2
Section 2.2 Obligations Unconditional 3
Section 2.3 Holder's Freedom to Act 5
Section 2.4 Waivers of Holding Company Guarantor; Subrogation 5
Section 2.5 Revival 6
Section 2.6 Subordination 7
Section 2.7 Bankruptcy 7
Section 2.8 Termination 7
ARTICLE III. AFFIRMATIVE COVENANTS 7
Section 3.1 Information 7
Section 3.2 Notice of Certain Events 7
Section 3.3 Insurance 8
Section 3.4 Payment of Taxes and Other Potential Charges and
Priority Claims 8
Section 3.5 Preservation of Corporate Status 9
Section 3.6 Governmental Approvals and Filings 9
Section 3.7 Maintenance of Properties 9
Section 3.8 Avoidance of Other Conflicts 9
Section 3.9 Financial Accounting Practices 10
Section 3.10 Continuation of or Change in Business 10
Section 3.11 Consolidated Tax Return 10
Section 3.12 Fiscal Year 10
Section 3.13 Inspection of Property 10
Section 3.14 Covenant to Secure Note Equally 11
ARTICLE IV. NEGATIVE COVENANTS 11
Section 4.1 Liens 11
Section 4.2 Limitation on Other Restrictions on Liens. 12
Section 4.3 Capital Expenditures 12
Section 4.4 Dividends and Related Distributions 13
ARTICLE V. REPRESENTATIONS, COVENANTS AND WARRANTIES 13
Section 5.1 Organization 13
Section 5.2 Power and Authority 14
Section 5.3 Actions Pending 14
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Section 5.4 Title to Properties 14
Section 5.5 Taxes 14
Section 5.6 Conflicting Agreements and Other Matters 15
Section 5.7 ERISA 15
Section 5.8 Governmental and Other Third Party Consent 16
Section 5.9 Environmental Compliance 16
Section 5.10 Regulatory Status 17
Section 5.11 Permits and Other Operating Rights 17
Section 5.12 Disclosure 17
Section 5.13 Solvency 18
ARTICLE VI. MISCELLANEOUS 18
Section 6.1 Consent to Amendments 18
Section 6.2 Survival of Representations and Warranties;
Entire Agreement 18
Section 6.3 Successors and Assigns 18
Section 6.4 Notices 19
Section 6.5 Governing Law 19
Section 6.6 Severability 19
Section 6.7 Descriptive Headings 19
Section 6.8 Counterparts 19
Section 6.9 Severability of Obligations 19
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HOLDING COMPANY GUARANTEE AGREEMENT
THIS HOLDING COMPANY GUARANTEE AGREEMENT (this "Holding
Company Guarantee") is entered into as of November 21, 1996, by BBox Holding
Company, a Delaware corporation (the "Holding Company Guarantor"), in favor of
and for the benefit of each holder of any Notes (the "Holders").
WHEREAS, Black Box Corporation of Pennsylvania, a Delaware
corporation (formerly known as Black Box Corporation; the "Company"), pursuant
to those certain separate Note Agreements, each dated as of May 6, 1994 (as
such agreements are amended, supplemented or otherwise modified, the "Note
Agreements"), issued and sold to the purchasers named therein $40,000,000 in
aggregate principal amount of its 8.81% Senior Notes due May 6, 1999 (the
"Notes");
WHEREAS, the proceeds of the Notes were loaned to Black Box
Corporation (formerly known as MB Communications, Inc.; the "Guarantor ") to
enable the Guarantor to repay certain indebtedness of the Guarantor;
WHEREAS, to secure the repayment of the Notes, the Guarantor
entered into that certain Guarantee Agreement, dated as of May 6, 1994, in
favor of and for the benefit each holder of any Notes;
WHEREAS, in connection with the organization by the Guarantor
of the Holding Company Guarantor, a Wholly-Owned Subsidiary of the Guarantor,
and the contribution by the Guarantor to the Holding Company Guarantor of 100%
of the outstanding capital stock of the Company (the "Restructuring"), the
Noteholders are entering into that certain Second Modification of Note Purchase
Agreements dated as of November 21, 1996 (the "Second Modification"); and
WHEREAS, as a condition precedent to the effectiveness of the
Second Modification, the Holders have requested, among other things, that the
Holding Company Guarantor execute this Holding Company Guarantee for the
benefit of the Company and the Holders.
NOW THEREFORE, for value received, to satisfy one of the
conditions precedent to the effectiveness of the Second Modification, to induce
the Holders to enter into the Second Modification, to induce any Transferee to
accept the transfer of all or any part of any Note, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Holding Company Guarantor agrees as follows:
ARTICLE I. DEFINITIONS
Section 1.1 Definitions. As used in this Holding Company
Guarantee, the following terms shall have the following meanings:
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"Guaranteed Obligations" shall mean (i) all of the
indebtedness, obligations, liabilities existing on the date hereof or arising
from time to time thereafter, whether direct or indirect, joint or several,
absolute or contingent, matured or unmatured, liquidated or unliquidated,
secured or unsecured, arising by contract, operation of law or otherwise, of
the Company to the Holders under or in respect of any one or more of the Note
Agreements or the Notes, including, without limitation, (a) the principal of
and interest and Yield Maintenance Amount, if any, on the Notes (including,
without limitation, interest accruing before, during or after any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, liquidation or
dissolution proceeding, and, if interest ceases to accrue by operation of law
by reason of any such proceeding, interest which otherwise would have accrued
in the absence of such proceeding) and (b) all reasonable costs and reasonable
expenses, including, without limitation, all court costs and attorneys' fees
and expenses, paid or incurred in endeavoring to collect all or any part of the
Guaranteed Obligations from, or in pursuing any action against, the Company,
the Holding Company Guarantor or any other guarantor of all or any part of the
Guaranteed Obligations or in any security for the liability of the Holding
Company Guarantor or any other such guarantor and (ii) all agreements,
covenants and conditions of the Company under the Note Agreements.
"Responsible Environmental Officer" shall mean with respect
to the Holding Company Guarantor or any of its Subsidiaries, any Responsible
Officer or any other officer or employee of the Holding Company Guarantor or
such Subsidiary responsible for the administration of environmental compliance
of the administration of the handling of Environmental Concern Materials,
including, without limitation, all officers or employees holding the titles set
forth in Part 8L to the Disclosure Schedule referred to in the Note Agreements
and any Person who, regardless of title, is performing the duties of any such
officers or employees.
"Responsible Officer" shall mean the chief executive officer,
chief operating officer, chief financial officer, chief accounting officer or
general counsel of the Holding Company Guarantor or any other officer of the
Holding Company Guarantor involved principally in its financial administration
or its controllership function or, in each case, any Person who, regardless of
title, is performing the duties of any of the foregoing.
Section 1.2 Other Definitions. Capitalized terms that are
used in this Holding Company Guarantee and are not defined in this Holding
Company Guarantee shall have the meanings ascribed to them in the Note
Agreements, except that with respect to the terms "Plan" and "Controlled Group
Member" as they are defined in the Note Agreements, each reference to "Company"
in such definitions shall be a reference to the "Holding Company Guarantor" for
purposes herein. Unless the context of this Holding Company Guarantee otherwise
clearly requires, references to the plural include the singular, the singular
include the plural and "or" has the inclusive meaning represented by the phrase
"and/or."
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ARTICLE II. THE GUARANTEE
A. Holding Company Guarantee of Payment and Performance of
Obligations. The Holding Company Guarantor unconditionally and irrevocably
guarantees the full and prompt payment and performance of the Guaranteed
Obligations as and when such payment or performance shall become due (at
scheduled maturity, a stated prepayment date or earlier by reason of
acceleration or otherwise) in accordance with the terms of the Note Agreements.
This Holding Company Guarantee is an agreement of suretyship as well as of
guaranty, is a guarantee of payment and performance and not merely of
collectibility, and is in no way conditioned upon any attempt to collect from or
proceed against the Company or any other Person or any other event or
circumstance. The obligations of the Holding Company Guarantor under this
Holding Company Guarantee are direct and primary obligations of the Holding
Company Guarantor and are independent of the Guaranteed Obligations, and a
separate action or actions may be brought against the Holding Company Guarantor
regardless of whether action is brought against the Company or any other Person
or whether the Company or any other Person is joined in any such action or
actions.
B. Obligations Unconditional. The Holding Company Guarantor
hereby agrees that the obligations of the Holding Company Guarantor under this
Holding Company Guarantee shall be continuing, absolute and unconditional,
irrespective of:
(i) any lack of genuineness, legalism, validity,
enforceability or allowability (in bankruptcy, insolvency,
reorganization or similar proceeding, or otherwise) of the Guaranteed
Obligations or the Note Agreements or any part thereof;
(ii) the absence of any attempt to collect the Guaranteed
Obligations from the Company or any other guarantor of all or any part
of the Guaranteed Obligations, any failure to assert any breach of or
default under any of the Note Agreements or the Guaranteed
Obligations, or any other failure, omission, breach, default, delay or
wrongful action in connection with any exercise or non-exercise, of
any right or remedy against the Company or any other Person under or
in connection with any of the Note Agreements or any of the Guaranteed
Obligations;
(iii) any refusal of payment or performance of any of the
Guaranteed Obligations, whether or not with any reservation of rights
against the Holding Company Guarantor;
(iv) any taking, exchange, amendment, modification,
supplement, termination, subordination, release, loss or impairment
of, or any failure to protect, perfect, or preserve the value of, or
any enforcement of, realization upon, or exercise of rights or
remedies under or in connection with, or any failure, omission,
breach, default, delay or wrongful action by any of the Holders or any
other Person in connection with the enforcement of, realization upon,
or exercise of rights or remedies under or in connection with, or any
other action or inaction by any of the Holders or any other Person in
respect of, any direct or indirect security for any of the Guaranteed
Obligations. As used in this Holding Company Guarantee, "direct or
indirect security" for the Guaranteed Obligations, and similar
phrases, includes but is not limited to any collateral security,
guaranty, suretyship, letter of credit, capital maintenance agreement,
put option, subordination agreement or other right or arrangement of
any nature providing direct
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or indirect assurance of payment or performance of any of the
Guaranteed Obligations, made or on behalf of any Person;
(v) any merger, consolidation, liquidation, dissolution,
winding-up, charter revocation or forfeiture, or other change in,
restructuring or termination of the corporate structure or existence
of, the Company or any other Person;
(vi) any defense arising by reason of any disability or other
defense (other than a defense of payment, unless the payment on which
such defense is based was or is subsequently invalidated, declared to
be fraudulent or preferential, otherwise avoided or required to be
repaid to the Company, the Holding Company Guarantor, the estate of
either the Company or the Holding Company Guarantor, a trustee,
receiver or any other Person under any bankruptcy law, state or
federal law, common law or equitable cause, in which case there shall
be no defense of payment with respect to such payment) of Company or
any other Person liable on the Guaranteed Obligations or any portion
thereof;
(vii) a Holder's election, in any proceeding instituted under
the Federal Bankruptcy Code (11 U.S.C. ss.101 et seq.) (the
"Bankruptcy Code"), of the application of Section 1111(b)(2) of the
Bankruptcy Code;
(viii) any borrowing from or grant of a security interest to
any Holder by the Company, as debtor-in-possession, under Section 364
of the Bankruptcy Code, or any extension of credit, under Section 364
of the Bankruptcy Code;
(ix) the disallowance or avoidance or subordination of all or
any portion of a Holder's claim(s) for repayment of the Guaranteed
Obligations under the Bankruptcy Code or any similar state law;
(x) any change in the time, manner, method or place of
payment or performance of, or in any other term of, the Guaranteed
Obligations, or any amendment to, waiver or modification of, or
consent under any provision of the Note Agreements or applicable law;
(xi) any change in any provision of applicable law or
regulation;
(xii) any agreement or stipulation as to the provision of
adequate protection in any bankruptcy proceeding;
(xiii) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution
proceeding commenced by or against the Company, the Holding Company
Guarantor or any other guarantor, maker or endorser, including without
limitation, any discharge of, or bar or stay against collecting or
accelerating, all or any of the Guaranteed Obligations in or as a
result of any such proceeding;
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(xiv) any failure by any Holder to file or enforce a claim
against the Company or its estate in any bankruptcy or insolvency
case or proceeding;
(xv) any action taken by any Holder that is authorized by
this Holding Company Guarantee, or any order, judgment, writ, award
or decree of any court, arbitrator or governmental authority,
domestic or foreign, binding on or affecting the Holding Company
Guarantor or the Company or any of their respective assets;
(xvi) any mortgage, indenture, lease, contract, or other
agreement (including without limitation any agreement with
stockholders), instrument or undertaking to which the Holding Company
Guarantor or the Company is a party or which purports to be binding
on or affect the Holding Company Guarantor or any of their respective
assets; or
(xvii) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
C. Holder's Freedom to Act. Any Holder is hereby authorized,
without notice to the Holding Company Guarantor and without affecting the
liability of the Holding Company Guarantor hereunder to such Holder or any other
Holder, from time to time to (i) renew, extend, accelerate or otherwise change
the time for payment of, or other terms relating to, the Guaranteed Obligations,
or otherwise modify, amend or change the terms of any of the Note Agreements and
the Notes; (ii) accept partial payments on the Guaranteed Obligations; (iii)
take and hold security or additional guarantees or sureties for the Guaranteed
Obligations or any part thereof or any other liabilities of the Company, the
obligations of the Holding Company Guarantor under this Holding Company
Guarantee and the obligations under any other guarantees of the Guaranteed
Obligations, and exchange, enforce, waive, release, sell, transfer, assign or
otherwise deal with any such security, guarantee or surety; (iv) apply such
security or any proceeds thereof and direct the order or manner of sale thereof
as each Holder may determine in its discretion; (v) settle, release, compromise,
collect or otherwise liquidate the Guaranteed Obligations or any portion thereof
and any security therefor in any manner; (vi) extend additional loans, credit
and financial accommodations and otherwise create additional Guaranteed
Obligations; (vii) waive strict compliance with the terms of the Note Agreements
or the Notes and otherwise forbear from asserting such Holder's rights and
remedies thereunder; (viii) alter or enforce or forbear from enforcing the
guarantee or surety of any other guarantor or surety of all or any part of the
Guaranteed Obligations or release any such guarantor or surety; and (ix) assign
this Holding Company Guarantee in part or in whole in connection with any
assignment of any part or all of the Guaranteed Obligations; (x) add, release or
substitute any one or more other guarantors, makers or endorsers of all or any
part of the Guaranteed Obligations and otherwise deal with the Company or any
other guarantor, maker or endorser as any Holder may elect in its sole
discretion; and (xi) apply any and all payments or recoveries from the Holding
Company Guarantor, from the Company or from any other guarantor, maker or
endorser of all or any part of the Guaranteed Obligations in such order as any
Holder in its sole discretion may determine, whether such Guaranteed Obligations
is secured or unsecured or guaranteed or not guaranteed by others.
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Any Holder's failure at any time or times hereafter to
require strict performance by the Holding Company Guarantor of any of the
covenants, provisions, warranties, terms and conditions contained in this
Holding Company Guarantee or any other promissory note, loan agreement, lease,
security agreement, mortgage, agreement, instrument or other document now or at
any time or times hereafter executed by the Holding Company Guarantor and
delivered to any Holder shall not waive, affect or diminish any right of any
Holder at any time or times hereafter to demand strict performance therewith
and no waiver of any such right shall be deemed to occur by any act or
knowledge of any Holder, its agents, officers or employees or be binding
against any Holder, except as expressly set forth in a writing duly signed and
delivered on that Holder's behalf by an officer of Holder, other than
amendments, consents or waivers pursuant to Section 6.1. No waiver by any
Holder of any default shall operate as a waiver of any other default or the
same default on a future occasion, and no action by any Holder permitted
hereunder shall in any way affect or impair any Holder's rights or the
obligations of the Holding Company Guarantor under this Holding Company
Guarantee. Any determination by a court of competent jurisdiction of the amount
of any part of the Guaranteed Obligations owing by the Company to any Holder at
any time shall be conclusive and binding on the Holding Company Guarantor
irrespective of whether the Holding Company Guarantor was a party to the suit
or action in which such determination was made.
D. Waivers of Holding Company Guarantor; Subrogation. (a)
Holding Company Guarantor waives (i) any requirements of diligence or promptness
on the part of any Holder; (ii) presentment, demand for payment or performance
and protest and notice of protest with respect to the Guaranteed Obligations or
any guarantee with respect thereto; (iii) notices (a) of nonperformance, (b) of
acceptance of this Holding Company Guarantee, (c) of default in respect of the
Guaranteed Obligations, (d) of the existence, creation or incurrence of new or
additional indebtedness, arising either from additional loans extended to the
Company or otherwise, (e) that the principal amount of, or any portion thereof,
or any interest or Yield Maintenance Amount on all or any part of the Guaranteed
Obligations is due, (f) of any and all proceedings to collect from the Company,
any maker, endorser or any other guarantor of all or any part of the Guaranteed
Obligations, or from anyone else, and (g) of exchange, sale, surrender,
creation, perfection or other handling of any security or collateral given to
any Holder to secure payment of the Guaranteed Obligations or any guarantee
therefor; (iv) any right to require any Holder to (a) proceed first against the
Company, or any other Person whatsoever, (b) proceed against or exhaust any
security given to or held by any Holder in connection with the Guaranteed
Obligations or any guarantee therefor or (c) pursue any other remedy in any
Holder's power whatsoever; (v) any defense arising by reason of (a) any
disability or other defense of the Company, (b) the cessation from any cause
whatsoever of the liability of the Company, (c) any act or omission of any
Holder or other Person which directly or indirectly, by operation of law or
otherwise, results in or aids the discharge or release of the Company or any
security given to or held by any Holder in connection with the Guaranteed
Obligations or any guarantee therefor; and (vi) any and all other suretyship
defenses under applicable law.
(b) The Holding Company Guarantor hereby waives and releases
the Company from any and all "claims" (as defined in Section 101(4) of the
Bankruptcy Code) to which the Holding Company Guarantor is or would at any time
be entitled by virtue of its obligations under this Holding Company Guarantee,
including, without limitation, any right of subrogation (whether contractual,
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under Section 509 of the Bankruptcy Code or otherwise), reimbursement,
contribution, indemnity, exoneration or similar right against the Company. The
Holding Company Guarantor further waives any right to demand security from
Company and any benefit of, and any right to participate in, any security given
to a Holder to secure payment of the Guaranteed Obligations or any other
liability of Company to any Holder. All waivers granted by the Holding Company
Guarantor hereunder, including, without limitation, the waiver by the Holding
Company Guarantor of all rights of subrogation to any Holder's rights against
the Company, shall be unconditional and irrevocable irrespective of whether the
Guaranteed Obligations have been paid in full by the Holding Company Guarantor
or any other party.
E. Revival. The Holding Company Guarantor further agrees that,
if any payment made by the Company or any other Person is applied to the
Guaranteed Obligations and is at any time annulled, set aside, rescinded,
invalidated, declared to be fraudulent or preferential or otherwise required to
be refunded or repaid, or the proceeds of any security given to a Holder to
secure payment of the Guaranteed Obligations are required to be returned by any
Holder to the Company, its estate, trustee, receiver or any other Person,
including, without limitation, the Holding Company Guarantor, under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or repayment, the Holding Company Guarantor's
liability hereunder (and any lien, security interest or other collateral
securing such liability) shall be and remain in full force and effect, as fully
as if such payment had never been made, or, if prior thereto this Holding
Company Guarantee shall have been canceled or surrendered (and if any lien,
security interest or other collateral securing Holding Company Guarantor's
liability hereunder shall have been released or terminated by virtue of such
cancellation or surrender), this Holding Company Guarantee (and such lien,
security interest or other collateral) shall be reinstated in full force and
effect, and such prior cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligations of the Holding Company
Guarantor in respect of the amount of such payment (or any lien, security
interest or other collateral securing such obligation).
F. Subordination. The Holding Company Guarantor further agrees
that any and all present and future debts and obligations of the Company, any
endorser, or any guarantor of any part or all of the Guaranteed Obligations to
the Holding Company Guarantor and any and all claims of the Holding Company
Guarantor against the Company, any endorser, or any guarantor of any part or all
of the Guaranteed Obligations, or any of their respective properties, howsoever
arising, shall be subordinate and subject in right of payment to the prior
payment, in full, of the Guaranteed Obligations and as security for this Holding
Company Guarantee, the Holding Company Guarantor hereby assigns to each Holder
all claims of any nature which the Holding Company Guarantor may now or
hereafter have against the Company.
G. Bankruptcy. If any Event of Default specified in clauses
(viii) to (x), inclusive, of paragraph 7A of the Note Agreements shall occur and
be continuing, the Holding Company Guarantor shall, at the option of any Holder,
forthwith pay the entire outstanding balance of the Guaranteed Obligations.
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H. Termination. The Holding Company Guarantor covenants that
it will not be discharged except by complete performance of the obligations
contained herein or by payment in full of the Guaranteed Obligations.
ARTICLE III. AFFIRMATIVE COVENANTS
I. Information. The Holding Company Guarantor covenants that
it will, as soon as practicable, deliver to each Significant Holder such
information and in such form as such Significant Holder may from time to time
reasonably request.
J. Notice of Certain Events. The Holding Company Guarantor
also covenants that immediately after any Responsible Officer obtains knowledge
of:
(i) an Event of Default or Default;
(ii) the occurrence of a Change of Control Event;
(iii) any material adverse change in the business condition
(financial or otherwise), operations or prospects of the Holding
Company Guarantor or any Subsidiary of the Holding Company Guarantor;
(iv) any pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or
affecting the Holding Company Guarantor or any Subsidiary of the
Holding Company Guarantor, including, without limitation, with respect
to the matters in Section 5.9, except for matters that if adversely
decided, individually or in the aggregate, could not have a Material
Adverse Effect;
(v) any material violation, breach or default by the Holding
Company Guarantor or any Subsidiary of the Holding Company Guarantor
of or under any agreement or instrument material to the business
operations, condition (financial or otherwise) or prospects of the
Holding Company Guarantor and its Subsidiaries taken as a whole;
(vi) any Pension-Related Event;
(vii) the expiration or earlier termination of the BB Tech
License Agreement; or
(viii) any proposed amendment, waiver, consent or other
change to the terms of the Bank Credit Agreement;
the Holding Company Guarantor will deliver to each Significant Holder an
Officer's Certificate specifying the nature and period of existence thereof and
what action the Holding Company Guarantor proposes to take with respect thereto
and, in the case of a Pension-Related Event such Certificate shall be
accompanied by (A) a copy of any notice, request, return, petition or other
document received by
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the Holding Company Guarantor or any Controlled Group Member from any Person,
or which has been or is to be filed with or provided to any Person (including
without limitation the Internal Revenue Service, Pension Benefit Guaranty
Corporation or any Plan participant, beneficiary, alternate payee or employer
representative), in connection with such Pension-Related Event, and (B) in the
case of any Pension-Related Event with respect to a Plan, the most recent
Annual Report (5500 Series), with attachments thereto, and the most recent
actuarial valuation report, for such Plan.
K. Insurance. The Holding Company Guarantor covenants that it
will, and will cause each Subsidiary of the Holding Company Guarantor to,
maintain with financially sound and reputable insurers insurance with respect to
its properties and business and against such liabilities, casualties and
contingencies and of such types and in such amounts as is customary in the case
of other corporations of established reputations engaged in the same or similar
businesses or having similar properties similarly situated.
L. Payment of Taxes and Other Potential Charges and Priority
Claims. The Holding Company Guarantor will, and will cause each of its
Subsidiaries to, pay or discharge:
a. on or prior to the date on which penalties attach thereto,
all taxes, assessments and other governmental charges imposed upon it
or any of its properties;
b. on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other
like Persons which, if unpaid, might result in the creation of a Lien
upon any such property; and
c. on or prior to the date when due, all other lawful claims
which, if unpaid, might result in the creation of a Lien upon any such
property or which, if unpaid, might give rise to a claim entitled to
priority over general creditors of the Holding Company Guarantor or
such Subsidiary in a case under Title 11 (Bankruptcy) of the United
States Code, as amended;
provided, that unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced the Holding Company Guarantor or such
Subsidiary need not pay or discharge any such tax, assessment, charge or claim
so long as (x) the validity thereof is contested in good faith and by
appropriate proceedings diligently conducted, (y) such reserves or other
appropriate provisions as may be required by generally accepted accounting
principles shall have been made therefor.
M. Preservation of Corporate Status. The Holding Company
Guarantor covenants that it will, and will cause each of its Subsidiaries to,
maintain its status as a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and to be
duly qualified to do business as a foreign corporation and in good standing in
all jurisdictions in which the ownership of its properties or the nature of its
business or both make such qualification necessary or advisable.
N. Governmental Approvals and Filings. The Holding Company
Guarantor covenants that it will, and will cause each Subsidiary of the Holding
Company Guarantor to, keep and
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maintain in full force and effect all Governmental Actions necessary or
advisable in connection with execution and delivery of this Holding Company
Guarantee by the Holding Company Guarantor and the Modification by the Company,
consummation by the Holding Company Guarantor and the Company of the
transactions herein or therein contemplated, performance of or compliance with
the terms and conditions of the Holding Company Guarantee, the Note Agreements
or the Modification by the Holding Company Guarantor and the Company or to
ensure the legality, validity, binding effect, enforceability or admissibility
in evidence hereof or thereof.
O. Maintenance of Properties. The Holding Company Guarantor
covenants that it will and will cause each Subsidiary of the Holding Company
Guarantor to, maintain or cause to be maintained in good repair, working order
and condition the properties now or hereafter owned, leased or otherwise
possessed by it (ordinary wear and tear excepted) and shall make or cause to be
made all needful and proper repairs, renewals, replacements and improvements
thereto so that the business carried on in connection therewith may be properly
and advantageously conducted at all times. The Holding Company Guarantor will,
and will cause each of its Subsidiaries to, procure and maintain in full force
and effect all franchises, patents, trademarks, trade names, service marks,
copyrights, licenses and other rights, in each case, that are necessary in any
material respect for the business and operation of the Holding Company Guarantor
and its Subsidiaries, taken as a whole.
P. Avoidance of Other Conflicts. (a) The Holding Company
Guarantor covenants that it will not, and will not permit any of its
Subsidiaries to, violate or conflict with, be in violation of or conflict with,
or be or remain subject to any liability (contingent or otherwise) on account of
any violation or conflict with:
(i) any Law;
(ii) its certificate of incorporation or by-laws (or other
constituent documents); or
(iii) any agreement or instrument to which it is party or by
which any of them or any of their respective Subsidiaries is a party
or by which any of them or any of their respective properties (now
owned or hereafter acquired) may be subject or bound;
except for matters that could not, individually or in the aggregate, have a
Material Adverse Effect.
(b) The Holding Company Guarantor will, and will cause each
of its Subsidiaries and each of its Environmental Affiliates to, comply with,
or operate pursuant to valid waivers of, applicable Environmental Laws and
Environmental Permits, including, without limitation, to the extent required by
applicable Environmental Laws or Environmental Permits, conducting, on a timely
basis, periodic tests and monitoring for contamination of ground water, surface
water, air and land and for biological toxicity and completing proper, thorough
and effective clean-up, removal, remediation and/or restoration, except to the
extent that failure so to comply with any Environmental Law or Environmental
Permit does not have a Material Adverse Effect, and except that, with respect
to any testing, monitoring, clean-up, removal, remediation or other such action
required pursuant to such laws or permits, neither the Holding Company
Guarantor nor any of its Subsidiaries or Environmental
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Affiliates shall be required to perform any such action if the applicability or
validity thereof is being contested in good faith by appropriate proceedings
and adequate reserves have been established in accordance with generally
accepted accounting principles.
Q. Financial Accounting Practices. The Holding Company
Guarantor covenants that it will, and will cause each of its Subsidiaries to,
make and keep books, records and accounts which, in reasonable detail,
accurately and fairly reflect its transactions and dispositions of its assets
and maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (a) transactions are executed in accordance with
management's general or specific authorization, (b) transactions are recorded as
necessary (i) to permit preparation of financial statements in conformity with
generally accepted accounting principles and (ii) to maintain accountability for
assets, (c) access to assets is permitted only in accordance with management's
general or specific authorization and (d) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
R. Continuation of or Change in Business. The Holding Company
Guarantor covenants that it will, and will cause each of its Subsidiaries to,
continue to engage in its business substantially as conducted and operated
during the present and preceding fiscal year, and the Holding Company Guarantor
will not, and will not permit any Subsidiary of the Holding Company Guarantor
to, engage in any other business.
S. Consolidated Tax Return. The Holding Company Guarantor
covenants that it will not, and will not suffer any of its Subsidiaries to, file
or consent to the filing of any consolidated income tax return with any Person
other than the Company, the Guarantor, the Holding Company Guarantor and their
respective Subsidiaries.
T. Fiscal Year. The Holding Company Guarantor covenants that
it will not, and will not suffer any of its Subsidiaries to, change its fiscal
year or fiscal quarter.
U. Inspection of Property. The Holding Company Guarantor
covenants that it will permit any Person designated by any Significant Holder in
writing, at the Holding Company Guarantor's expense while an Event of Default is
continuing and otherwise at such Significant Holder's expense, to visit and
inspect any of the properties of the Holding Company Guarantor and its
Subsidiaries, to examine the corporate books and financial records of the
Holding Company Guarantor and its Subsidiaries and make copies thereof or
extracts therefrom and to discuss the affairs, finances and accounts of any of
such corporations with the directors, officers and key employees of the Holding
Company Guarantor or their independent public accountants, all at such
reasonable times and as often as such Significant Holder may reasonably request.
V. Covenant to Secure Note Equally. The Holding Company
Guarantor covenants that, if it or any Subsidiary of the Holding Company
Guarantor shall create or assume any Lien upon any of its property or assets,
whether now owned or hereafter acquired, other than Liens permitted by the
provisions of Section 4.1 (unless prior written consent to the creation or
assumption thereof shall have been obtained pursuant to Section 6.1), it will
make or cause to be made effective
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provision satisfactory in form and substance to the Required Holder(s)
(including, without limitation, opinions of counsel relating thereto) whereby
the Notes will be secured by such Lien equally and ratably with any and all
other Indebtedness thereby secured so long as any such other Indebtedness shall
be so secured. Securing the Notes as provided in this Section 3.14 shall not
permit the existence of any Lien not permitted by Section 4.1.
ARTICLE IV. NEGATIVE COVENANTS
The Holding Company Guarantor covenants that, so long as any
Note is outstanding or any amount owing under this Holding Company Guarantee
remains unpaid:
W. Liens. The Holding Company Guarantor will not, and will not
permit any of its Subsidiaries to, at any time create, incur, assume or suffer
to exist any Lien on any of its property (whether now owned or hereafter
acquired and whether or not provision is made for equally and ratably securing
the Notes as provided in Section 3.14 hereof and paragraph 5P of the Note
Agreements), except for the following:
(i) Liens existing as of May 6, 1994, securing obligations
existing as of May 6, 1994, as such Liens and obligations are listed
in SCHEDULE 4.6 attached to that certain Guarantee Agreement, dated as
of May 6, 1994, made by the Guarantor in favor of the Holders (as
amended by that certain Amendment to Guarantee Agreement dated as of
November 21, 1996, by and among the Guarantor and the Holders, the
"Black Box Guarantee");
(ii) Liens arising from taxes, assessments, charges or claims
described in Section 3.4 that are not yet due or that remain payable
without penalty or to the extent permitted to remain unpaid under the
proviso to Section 3.4;
(iii) Liens (other than ERISA Liens) incurred or deposits or
pledges of cash or securities in the ordinary course of business to
secure (i) workmen's compensation, unemployment insurance or other
social security obligations, (ii) performance of bids, tenders, trade
contracts (other than for payment of money) or leases, (iii) stay,
surety or appeal bonds, or (iv) other obligations of a like nature
incurred in the ordinary course of business, provided that such Liens
do not, in the aggregate, materially detract from the value of the
property and assets of the Holding Company Guarantor and its
Subsidiaries or impair the use thereof by the Holding Company
Guarantor and its Subsidiaries or the operation of their respective
businesses;
(iv) Liens consisting of Capitalized Leases, provided that
(a) such Lien is created before or substantially simultaneously with
the purchase of the property that is the subject of such Capitalized
Lease, (b) such Lien is confined solely to the property so leased,
improvements thereto and proceeds thereof, (c) the amount secured by
such Lien described in this Section 4.1(iv) shall not at any time
exceed the lesser of cost or fair market value (plus
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installation costs, to the extent they have not been expensed) of the
property so leased; (d) the Indebtedness represented by such
Capitalized Leases is permitted by Sections 4.3, 4.4 and 4.5 of the
Black Box Guarantee, and, to the extent applicable, paragraph 6 of the
Note Agreements; and (e) no Default or Event of Default shall have
occurred and be continuing or shall occur after giving effect thereto
or the lease of such property; and
(v) Liens on property securing all or part of the purchase
price thereof and Liens (whether or not assumed) existing in property
at the time of purchase thereof by the Holding Company Guarantor or a
Subsidiary of the Holding Company Guarantor, PROVIDED that (a) such
Lien is created before or substantially simultaneously with the
purchase of such property, (b) such Lien is confined solely to the
property so purchased, improvements thereto and proceeds thereof, (c)
the amount secured by such Lien described in this Section 4.1(v) shall
not at any time exceed the lesser of cost or fair market value of the
property so purchased; (d) the Indebtedness secured by such Lien is
permitted by Sections 4.3, 4.4 and 4.5 of the Black Box Guarantee and,
to the extent applicable, paragraph 6 of the Note Agreements; and (e)
no Default or Event of Default shall have occurred and be continuing
or shall occur after giving effect thereto or the purchase of such
property; and
(vi) Liens renewing or extending any Lien described in
clauses (i), (iv) or (v) above, provided (a) neither the Indebtedness
secured thereby is increased nor the weighted average life to maturity
thereof reduced as a result thereof, (b) such Lien is confined solely
to the property so purchased or leased, improvements thereto and
proceeds thereof; (c) the Indebtedness secured thereby is permitted
under Sections 4.3, 4.4 and 4.5 of the Black Box Guarantee and, to the
extent applicable, paragraph 6 of the Note Agreements; and (d) no
Default or Event of Default shall have occurred and be continuing or
shall occur after giving effect thereto.
X. Limitation on Other Restrictions on Liens. The Holding
Company Guarantor will not enter into, become or remain subject to any
agreement or instrument to which the Holding Company Guarantor is a
party or by which it or any of its properties (now owned or hereafter
acquired) may be subject or bound that would prohibit the grant of any
Lien upon any of its properties (now owned or hereafter acquired),
except (i) the Bank Credit Agreement, as amended by that certain First
Amendment to Credit Agreement, dated as of March 30, 1995, by that
certain Second Amendment to Credit Agreement, dated as of August 1,
1995, by that certain Third Amendment to Credit Agreement, dated as of
April 1, 1996, by that certain Fourth Amendment to Credit Agreement
dated as of November 21, 1996, and by that certain Fifth Amendment to
Credit Agreement dated as of November 21, 1996 and (ii) the Note
Agreements, as modified by the Modification of Note Purchase
Agreements, dated as of November 21, 1996, and by the Second
Modification.
Y. Capital Expenditures. The Holding Company Guarantor will
not, and will not permit any Subsidiary of the Holding Company Guarantor to,
make any Capital Expenditures on or after the date hereof, except for Capital
Expenditures not in excess of $3,500,000 in the aggregate by the Holding
Company Guarantor and its Subsidiaries in any fiscal year and subject to
compliance, to the extent applicable, with the additional restrictions
contained in paragraph 6 of the Note Agreements.
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Z. Dividends and Related Distributions. The Holding Company
Guarantor covenants that it will not, and will not permit any of its
Subsidiaries to, make, directly or indirectly, any Stock Payment, except:
(i) Stock Payments by a Subsidiary of the Holding Company
Guarantor to the Holding Company Guarantor, for the purposes of making
Stock Payments to the Guarantor for the purposes of paying reasonable
administrative costs and salaries of the Guarantor's employees, paying
taxes and paying expenses incurred in the ordinary course of business
or Stock Payments by a Subsidiary of the Holding Company Guarantor to
the Holding Company Guarantor for the purposes of paying reasonable
administrative costs and salaries of the Holding Company Guarantor's
employees, paying taxes and paying expenses incurred in the ordinary
course of business; PROVIDED, that no Stock Payment pursuant to this
clause (i) may be made (a) at any time when a Default or Event of
Default exists or would occur after giving effect to such Stock
Payment or (b) if, after giving effect to such Stock Payment, the
aggregate amount of Stock Payments made during any fiscal year of the
Company, together with any loans and advances made by the Company
pursuant to paragraph 6G(iv) of the Note Agreements during such fiscal
year, would exceed $1,500,000;
(ii) Stock Payments to the Holding Company Guarantor for the
purposes of making Stock Payments to the Guarantor for the purposes of
making Stock Payments to the extent permitted by Section 4.17 of the
Black Box Guarantee; PROVIDED, that no Stock Payment pursuant to this
clause (ii) may be made at any time when a Default or Event of Default
exists or would occur after giving effect to such Stock Payment;
(iii) Stock Payments to the Holding Company Guarantor so long
as the proceeds thereof shall be loaned to the Company as permitted by
paragraph 6E of the Note Agreements; and
(iv) A Subsidiary of the Company may declare and make Stock
Payments if all of the capital stock of such Subsidiary is owned by
the Company or by a direct or indirect Wholly- Owned Subsidiary of the
Company.
ARTICLE V. REPRESENTATIONS, COVENANTS AND WARRANTIES
The Holding Company Guarantor represents, covenants and
warrants as follows:
AA. Organization. The Holding Company Guarantor is a
corporation duly organized and existing in good standing under the laws of the
State of Delaware and each of its Subsidiaries is duly organized and existing in
good standing under the laws of the jurisdiction in which it is incorporated.
The Holding Company Guarantor and each Subsidiary of the Holding Company
Guarantor is duly qualified and authorized to transact business as a foreign
corporation and is in good standing in every jurisdiction in which the nature of
the business conducted by it or the ownership of its properties or assets makes
such qualification necessary, except where the failure to be in good standing or
to be so qualified or authorized would not have a Material Adverse Effect on the
Holding Company Guarantor or such Subsidiary, as the case may be. The names of
the Subsidiaries of the Holding Company Guarantor on the Effective Date (as such
term is defined in the Second Modification), the jurisdictions in which each
such Subsidiary is
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organized, each Subsidiary's form of organization and the capital stock of each
such Subsidiary issued and outstanding and the holders by percent of such stock
are as set forth in SCHEDULE 5.1. As of the date hereof, the Holding Company
Guarantor owns beneficially and of record 100% of the issued and outstanding
capital stock of the Company. Neither the Holding Company Guarantor nor any of
its Subsidiaries is a partner (general or limited) of any partnership, is a
party to any joint venture or owns (beneficially of record) any equity or
similar interest in any Person (including but not limited to any interest
pursuant to which the Holding Company Guarantor or any of its Subsidiaries has
or may in any circumstance have the obligation to make capital contributions
to, or be generally liable for on account of the liabilities, acts or omissions
of such other Person), except for (i) capital stock of the Subsidiaries listed
on SCHEDULE 5.1-1, (ii) equity Investments permitted under Section 4.16 of the
Black Box Guarantee and (iii) matters set forth in SCHEDULE 5.1-2.
BB. Power and Authority. The Holding Company Guarantor and
each Subsidiary of the Holding Company Guarantor has all requisite corporate
power to conduct its business as currently conducted and as currently proposed
to be conducted. The Holding Company Guarantor has all requisite corporate
power to execute, deliver and perform its obligations under this Holding
Company Guarantee. The execution, delivery and performance by the Holding
Company Guarantor of this Holding Company Guarantee have been duly authorized
by all requisite corporate action on the part of the Holding Company Guarantor.
The Holding Company Guarantor has duly executed and delivered this Holding
Company Guarantee, and this Holding Company Guarantee constitutes the legal,
valid and binding obligation of the Holding Company Guarantor, enforceable
against the Holding Company Guarantor in accordance with its terms.
CC. Actions Pending. There is no action, suit, investigation
or proceeding pending or, to the knowledge of the Holding Company Guarantor,
threatened against the Holding Company Guarantor or any of its Subsidiaries, or
any properties or rights of the Holding Company Guarantor or any of its
Subsidiaries, by or before any court, arbitrator or administrative or
governmental body in which the judgment sought or the potential liability to
the Holding Company Guarantor or any of its Subsidiaries exceeds $100,000.
DD. Title to Properties. The Holding Company Guarantor has
and each of its Subsidiaries has good and indefeasible title to its respective
real properties (other than properties which it leases) and good title to all
of its other respective properties and assets, subject to minor defects in
title such as are customarily encountered in properties of like site and
character and which do not impair the Holding Company Guarantor's or any
Subsidiary's use of such properties. All leases necessary in any material
respect for the conduct of the respective businesses of the Holding Company
Guarantor and its Subsidiaries are valid and subsisting and are in full force
and effect.
EE. Taxes. The Holding Company Guarantor has and each of its
Subsidiaries has filed all federal, state and other income tax returns which,
to the knowledge of the officers of the Holding Company Guarantor, are required
to be filed, and each has paid all taxes as shown on such returns and on all
assessments received by it to the extent that such taxes have become due,
except such taxes as are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance
with generally accepted accounting principles, and the Holding Company
Guarantor has no knowledge of any basis for any further material assessment to
the Holding Company Guarantor or any of its Subsidiaries that has not been
adequately so provided for on the books of the Holding Company Guarantor.
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FF. Conflicting Agreements and Other Matters. Neither the
Holding Company Guarantor nor any of its Subsidiaries is a party to any
contract or agreement or subject to any charter or other corporate restriction
which materially and adversely affects its business, property or assets, or
financial condition or prospects. Neither the execution nor delivery of this
Holding Company Guarantee, nor fulfillment of nor compliance with the terms and
provisions hereof or thereof, will conflict with, or result in a breach of the
terms, conditions or provisions of, or constitute a default under, or result in
any violation of, or result in the creation of any Lien upon any of the
properties or assets of the Holding Company Guarantor or any of its
Subsidiaries pursuant to, the charter or by-laws of the Holding Company
Guarantor or any of its Subsidiaries, any award of any arbitrator or any
agreement (including any agreement with stockholders), instrument, order,
judgment, decree, statute, law, rule or regulation to which the Holding Company
Guarantor or any of its Subsidiaries is subject. Neither the Holding Company
Guarantor nor any of its Subsidiaries is a party to, or otherwise subject to
any provision contained in, any instrument evidencing Indebtedness of the
Holding Company Guarantor or such Subsidiary, any agreement relating thereto or
any other contract or agreement (including its charter) which limits the amount
of, or otherwise imposes restrictions on the creation of, any Holding Company
Guarantee.
GG. ERISA. No accumulated funding deficiency (as defined in
section 302 of ERISA and section 412 of the Code), whether or not waived,
exists with respect to any Plan. No liability to the Pension Benefit Guaranty
Corporation has been or is expected by the Holding Company Guarantor or any
Controlled Group Member to be incurred with respect to any Plan by the Holding
Company Guarantor, any Subsidiary of the Holding Company Guarantor or any
Controlled Group Member which does or would have a Material Adverse Effect.
Neither the Holding Company Guarantor, any Subsidiary of the Holding Company
Guarantor nor any Controlled Group Member has contributed or presently
contributes to any Multiemployer Plan. The execution and delivery of this
Holding Company Guarantee and the transactions contemplated by the Modification
will be exempt from, or will not involve any transaction which is subject to,
the prohibitions of section 406 of ERISA and will not involve any transaction
in connection with which a penalty could be imposed under section 502(i) of
ERISA or a tax could be imposed pursuant to section 4975 of the Code. The
represen tation by the Holding Company Guarantor in the next preceding sentence
is made in reliance upon and subject to the accuracy of each Purchaser's
representation in paragraph 9B of the Note Agreements. A copy of the most
recent Annual Report (5500 Series Form) as of the date hereof including all
attachments thereto as filed with the Internal Revenue Service for each Plan
has been provided to the Purchasers and fairly presents the funding status of
each Plan. There has been no material deterioration in any Plan's funding
status since the date of such Annual Report. SCHEDULE 5.7 sets forth as of the
date hereof a list of all Plans and Multiemployer Plans. Except as set forth in
SCHEDULE 5.7, neither the Holding Company Guarantor nor any Subsidiary of the
Holding Company Guarantor has any liability (contingent or otherwise) for, or
in connection with, and none of their respective properties is subject to a
Lien in connection with, any Pension-Related Event. Neither the Holding Company
Guarantor nor any Subsidiary of the Holding Company Guarantor has any liability
(contingent or otherwise) for, or in connection with, any Postretirement
Benefits.
HH. Governmental and Other Third Party Consent. Neither the
nature of the Holding Company Guarantor or of any Subsidiary, nor any of their
respective businesses or properties, nor any relationship between the Holding
Company Guarantor or any Subsidiary and any other Person, nor any circumstance
in connection with the execution or delivery of this Holding Company Guarantee
is such as to require any authorization, consent, approval, exemption or other
action by or notice to or filing with any court or administrative or
governmental body or any other Person in connection with the execution and
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delivery of this Holding Company Guarantee or fulfillment of or compliance with
the terms and provisions hereof.
II. Environmental Compliance. (a) To the best knowledge of
any Responsible Environmental Officer, (i) the Holding Company Guarantor and
its Subsidiaries and Environmental Affiliates and all of their respective
properties and facilities have complied at all times and in all respects with
all applicable Environmental Laws and all administrative orders, judgments,
rulings and regulations relating to protection of the Environment, except, in
any such case, where failure to comply would not result in a Material Adverse
Effect, and (ii) neither the Holding Company Guarantor nor any of its
Subsidiaries nor any Environmental Affiliate are reasonably expected to have
any liability, under any applicable Environmental Laws, which, either in any
case or in the aggregate, could result in a Material Adverse Effect.
(b) Without limiting the foregoing, except as described in
part 8L to the Disclosure Schedule referred to in the Note Agreements, neither
the Holding Company Guarantor nor any of its Subsidiaries nor Environmental
Affiliate has any knowledge of the Release or Threat of Release of any
Environmental Concern Materials on, in, under, or in the vicinity of any of the
properties owned or operated by the Holding Company Guarantor or any of its
Subsidiaries or any Environmental Affiliate that may be required to be
remediated under any applicable Environmental Law. No Lien has been imposed on
any of the properties owned or operated by the Holding Company Guarantor or any
of its Subsidiaries by any governmental agency at the federal, state, or local
level in connection with the presence on or off such property of any
Environmental Concern Materials, except as described in part 8L to the
Disclosure Schedule referred to in the Note Agreements. Except as described in
part 8L to the Disclosure Schedule referred to in the Note Agreements, to the
best knowledge of any Responsible Environmental Officer, neither the Holding
Company Guarantor nor any of its Subsidiaries nor any Environmental Affiliate
has in the previous five years: (i) entered into or been subject to any consent
decree, compliance order, or administrative order under any applicable
Environmental Laws with respect to any of the properties owned or operated by
the Holding Company Guarantor or any of its Subsidiaries or Environmental
Affiliates or any facilities or improvements or any operations or activities
thereon, (ii) received notice under the citizen suit provision of any
applicable Environmental Law in connection with any of the properties owned or
operated by the Holding Company Guarantor or any of its Subsidiaries or
Environmental Affiliates or any facilities or improvements or any operations or
activities thereon; (iii) received any request for information, notice, demand
letter, administrative inquiry, or formal or informal complaint or claim with
respect to environmental matters relating to any of the properties owned or
operated by the Holding Company Guarantor or any of its Subsidiaries or
Environmental Affiliate thereof or any facilities or improvements or any
operations or activities thereon that may be required or may require any
environmental investigation, environmental site assessment, corrective action
or environmental remediation; or (iv) been subject to or threatened with any
governmental or citizen enforcement action under any applicable Environmental
Laws with respect to any of the properties owned or operated by the Holding
Company Guarantor or any of its Subsidiaries or Environmental Affiliate or any
facilities or improvements or any operations or activities thereon. To the best
knowledge of any Responsible Environmental Officer, except as described in part
8L to the Disclosure Schedule referred to in the Note Agreements, neither the
Holding Company Guarantor nor any of its Subsidiaries has any reason to believe
that any of the above will be forthcoming, the effect of which could reasonably
have a Material Adverse Effect. The Holding Company Guarantor and its
Subsidiaries have all Environmental Permits necessary for all facilities,
operations, activities, improvements, and alterations, including past or
ongoing improvements or alterations, at the properties
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owned or operated by the Holding Company Guarantor or any of its Subsidiaries,
except where the failure to have such permits would not have a Material Adverse
Effect.
JJ. Regulatory Status. Neither the Company or the Holding
Company Guarantor nor any Subsidiary of the Company or the Holding Company
Guarantor is (i) an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, (ii) a "holding company" or a "subsidiary company" or an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Act of 1935, as amended, or
(iii) a "public utility" within the meaning of the Federal Power Act, as
amended.
KK. Permits and Other Operating Rights. The Holding Company
Guarantor and each Subsidiary has all such valid and sufficient certificates of
convenience and necessity, franchises, licenses, permits, operating rights and
other authorizations from federal, state, regional, municipal and other local
regulatory bodies or administrative agencies or other governmental bodies
having jurisdiction over the Holding Company Guarantor or the Subsidiary or any
of its respective properties, as are necessary for the ownership, operation and
maintenance of its businesses and properties, subject to exceptions and
deficiencies which do not materially affect the business and operations of the
Holding Company Guarantor or such Subsidiary or any material part thereof, and
such certificates of convenience and necessity, franchises, licenses, permits,
operating rights and other authorizations from federal, state, regional,
municipal and other local regulatory bodies or administrative agencies or other
governmental bodies having jurisdiction over the Holding Company Guarantor or
any such Subsidiary or any of its properties are free from burdensome
restrictions or conditions of an unusual character or restrictions or
conditions materially adverse to the business or operations of the Holding
Company Guarantor or such Subsidiary, and neither the Holding Company Guarantor
nor any Subsidiary is in violation of any thereof in any material respect.
LL. Disclosure. Neither this Holding Company Guarantee nor
any other document, certificate or statement furnished to the Holders by or on
behalf of the Holding Company Guarantor in connection herewith or therewith
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein and therein not
misleading. There is no fact peculiar to the Holding Company Guarantor or any
of its Subsidiaries which materially adversely affects or in the future may (so
far as the Holding Company Guarantor can now foresee) materially adversely
affect the business, property or assets, or financial condition of the Holding
Company Guarantor or any of its Subsidiaries and which has not been set forth
in this Holding Company Guarantee or in the other documents, certificates and
statements furnished to the Holders by or on behalf of the Holding Company
Guarantor prior to the date hereof in connection with the transactions
contemplated hereby.
MM. Solvency. On and as of the date hereof, after giving
effect to the consummation of the transactions contemplated in the Modification
and the Second Modification and in this Holding Company Guarantee and after
giving effect to the Restructuring, the Holding Company Guarantor and its
Subsidiaries will be Solvent.
ARTICLE VI. MISCELLANEOUS
NN. Consent to Amendments. This Holding Company Guarantee may
be amended, and the Holding Company Guarantor may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
if the Holding Company Guarantor shall obtain the written consent to
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such amendment, action or omission to act, of the Required Holder(s) except
that, without the written consent of all of the Holders, the Holding Company
Guarantor shall not be released from this Holding Company Guarantee and no
amendment, consent or waiver with respect to Article II of this Holding Company
Guarantee or change to the proportion of the principal amount of the Notes
required with respect to any consent, amendment or waiver shall be effective.
Each Holder of any Note at the time or thereafter outstanding shall be bound by
any consent authorized by this Section 6.1, whether or not such Note shall have
been marked to indicate such consent, but any Notes issued thereafter may bear
a notation referring to any such consent. No course of dealing between the
Holding Company Guarantor and the holder of any Note nor any delay in
exercising any rights hereunder or under any Note shall operate as a waiver of
any rights of any holder of such Note. As used herein, the term "this Holding
Company Guarantee" and references thereto shall mean this Holding Company
Guarantee as it may from time to time be amended or supplemented. If, in
connection with any proposed or consummated amendment or waiver of this Holding
Company Guarantee or delivery of any consent to action or inaction hereunder, a
fee is to be paid to any Holder of Notes (excluding fees or expenses paid as
reimbursement for their out-of-pocket expenses pursuant to paragraph 11B of the
Note Agreements) by the Holding Company Guarantor or any of its Subsidiaries,
the Holding Company Guarantor shall be required to pay such fee ratably to all
Holders of Notes.
OO. Survival of Representations and Warranties; Entire
Agreement. All representations and warranties contained herein or made in
writing by or on behalf of the Holding Company Guarantor in connection herewith
shall survive the execution and delivery of this Holding Company Guarantee, the
transfer by any Holder of any Note or portion thereof or interest therein and
the payment of any Note, and may be relied upon by any Transferee, regardless
of any investigation made at any time by or on behalf of any Holder. Subject to
the preceding sentence, this Holding Company Guarantee embodies the entire
agreement and understanding between the Purchaser and the Holding Company
Guarantor and supersedes all prior agreements and understandings relating to
the subject matter hereof.
PP. Successors and Assigns. All covenants and other agreements
in this Holding Company Guarantee contained by or on behalf of the Holding
Company Guarantor shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto (including, without limitation,
any Transferee) whether so expressed or not, provided, that the Holding Company
Guarantor may not transfer or assign any of its obligations hereunder except in
compliance with Section 6.1.
QQ. Notices. All written communications provided for
hereunder shall be sent by first class mail or nationwide overnight delivery
service (with charges prepaid) and (i) if to a Holder, addressed to it at the
address specified for such communications in the Purchaser Schedule attached to
the Note Agreement to which such Holder is a party, or at such other address as
it shall have specified to the Holding Company Guarantor in writing and (ii) if
to the Holding Company Guarantor, addressed to it at 911 Washington Street,
Wilmington, Delaware 19801-1545, Attention: Kenneth J. Kubacki, with a copy to
1000 Park Drive, Lawrence, Pennsylvania 15055, Attention: Frederick C. Young,
or at such other address as the Holding Company Guarantor shall have specified
to the Holder of each Note in writing; provided, however, that any such
communication to the Holding Company Guarantor may also, at the option of the
Holder, be delivered by any other means either to the Holding Company Guarantor
at its address specified above or to any officer of the Holding Company
Guarantor. Any such communications which satisfy the foregoing provisions of
this Section 6.4 shall be deemed to have been given for purposes hereof when
actually received, or on the 5th Business Day after deposit in the United
States mail in the case of
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communication by first class mail, or, on the 1st Business Day after deposit
with a nationwide overnight delivery service in the case of communication by
nationwide overnight delivery service.
RR. Governing Law. This Holding Company Guarantee shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the law of the State of New York.
SS. Severability. Any provision of this Holding Company
Guarantee which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
TT. Descriptive Headings. The descriptive headings of the
several subsections, sections and articles of this Holding Company Guarantee
are inserted for convenience only and do not constitute a part of this Holding
Company Guarantee.
UU. Counterparts. This Holding Company Guarantee may be
executed in any number of counterparts, each of which shall be an original but
all of which together shall constitute one instrument.
VV. Severability of Obligations. The sales of Notes to the
Purchasers are to be several sales, and the obligations of the Purchasers under
the Note Agreements are several obligations.
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24
IN WITNESS WHEREOF, this Holding Company Guarantee has been
duly executed by the Holding Company Guarantor as of the date first above
written.
BBOX HOLDING COMPANY
By: /s/ KENNETH J. KUBACKI
------------------------
Title: Kenneth J. Kubacki
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25
ACKNOWLEDGMENT OF CORPORATION
STATE OF DELAWARE )
) SS.
COUNTY OF NEW CASTLE )
The foregoing instrument was acknowledged before me this 19th
day of November, 1996 by Kenneth J. Kubacki, the President of BBox Holding
Company, on behalf of the corporation.
/s/ CAROLIE M. TERRY
-------------------------
Notary Public
My commission expires:
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26
Acknowledged and agreed to in Newark, New Jersey as of this ___ day of
November, 1996:
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By: /s/ KEVIN J. KRASKA
----------------------------
Title: Vice President
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27
Acknowledged and agreed to in New York, New York as of this 18th day of
November, 1996:
THE EQUITABLE LIFE ASSURANCE SOCIETY OF
THE UNITED STATES
By: /s/ JOEL SEREBRANSKY
-------------------------
Title: Investment Officer
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28
Acknowledged and agreed to in Springfield, Massachusetts as of this 21st day of
November, 1996:
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: /s/ MARK A. AHMED
---------------------------
Title: Managing Director
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29
SCHEDULE 5.1-1
SUBSIDIARIES
[SEE ATTACHED]
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30
SCHEDULE 5.1-2
PARTNERSHIP AND JOINT VENTURE INTERESTS
[SEE ATTACHED]
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31
SCHEDULE 5.7
ERISA
[SEE ATTACHED]