Exhibit 4.1
CONFORMED COPY
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APTARGROUP, INC.
$200,000,000
Senior Notes Issuable In Series
$107,000,000
6.62% Senior Notes, Series 1999-A
due May 30, 2011
_________
NOTE PURCHASE AGREEMENT
_________
Dated as of May 15, 1999
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TABLE OF CONTENTS
Section Page
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1. AUTHORIZATION OF NOTES........................................... 1
1.1. Amount; Establishment of Series........................... 1
1.2. The Series 1999-A Notes................................... 2
2. SALE AND PURCHASE OF SERIES 1999-A NOTES......................... 2
3. CLOSING.......................................................... 3
4. CONDITIONS TO CLOSING............................................ 3
4.1. Representations and Warranties............................ 3
4.2. Performance; No Default................................... 3
4.3. Compliance Certificates................................... 3
4.4. Opinions of Counsel....................................... 4
4.5. Purchase Permitted By Applicable Law, etc................. 4
4.6. Sale of Other Series 1999-A Notes......................... 4
4.7. Payment of Special Counsel Fees........................... 4
4.8. Private Placement Number.................................. 4
4.9. Changes in Corporate Structure............................ 5
4.10. Proceedings and Documents................................. 5
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.................... 5
5.1. Organization; Power and Authority......................... 5
5.2. Authorization, etc........................................ 5
5.3. Disclosure................................................ 6
5.4. Organization and Ownership of Shares of Subsidiaries;
Affiliates.............................................. 6
5.5. Financial Statements...................................... 7
5.6. Compliance with Laws, Other Instruments, etc.............. 7
5.7. Governmental Authorizations, etc.......................... 7
5.8. Litigation; Observance of Agreements, Statutes and Orders. 7
5.9. Taxes..................................................... 8
5.10. Title to Property; Leases................................. 8
5.11. Licenses, Permits, etc.................................... 8
5.12. Compliance with ERISA..................................... 9
5.13. Private Offering by the Company........................... 10
5.14. Use of Proceeds; Margin Regulations....................... 10
5.15 Existing Indebtedness; Future Liens....................... 10
5.16. Foreign Assets Control Regulations, etc................... 11
5.17. Status under Certain Statutes............................. 11
5.18. Environmental Matters..................................... 11
5.19. Year 2000................................................. 12
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6. REPRESENTATIONS OF THE PURCHASERS................................ 12
6.1. Purchase for Investment................................... 12
6.2. Source of Funds........................................... 12
7. INFORMATION AS TO COMPANY........................................ 12
7.1. Financial and Business Information........................ 12
7.2. Officer's Certificate..................................... 17
7.3. Inspection................................................ 17
8. PREPAYMENT OF THE SERIES 1999-A NOTES............................ 12
8.1. Required Prepayments...................................... 18
8.2. Optional Prepayments with Make-Whole Amount............... 18
8.3. Allocation of Partial Prepayments......................... 18
8.4. Maturity; Surrender, etc.................................. 19
8.5. Purchase of Notes......................................... 19
8.6. Make-Whole Amount......................................... 19
9. AFFIRMATIVE COVENANTS............................................ 20
9.1. Compliance with Law....................................... 21
9.2. Insurance................................................. 21
9.3. Maintenance of Properties................................. 21
9.4. Payment of Taxes and Claims............................... 21
9.5. Corporate Existence, etc.................................. 21
10. NEGATIVE COVENANTS............................................... 22
10.1. Adjusted Consolidated Net Worth........................... 22
10.2. Indebtedness.............................................. 22
10.3. Liens..................................................... 23
10.4. Sale of Assets............................................ 24
10.5. Mergers, Consolidations, etc.............................. 25
10.6. Disposition of Stock of Restricted Subsidiaries........... 26
10.7. Designation of Unrestricted and Restricted Subsidiaries... 26
10.8. Nature of Business........................................ 27
10.9. Transactions with Affiliates.............................. 27
11. EVENTS OF DEFAULT................................................ 27
12. REMEDIES ON DEFAULT, ETC......................................... 29
12.1. Acceleration.............................................. 29
12.2. Other Remedies............................................ 30
12.3. Rescission................................................ 30
12.4. No Waivers or Election of Remedies, Expenses, etc......... 30
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.................... 31
13.1. Registration of Notes..................................... 31
13.2. Transfer and Exchange of Notes............................ 31
13.3. Replacement of Notes...................................... 31
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14. PAYMENTS ON NOTES................................................ 32
14.1. Place of Payment.......................................... 32
14.2. Home Office Payment....................................... 32
15. EXPENSES, ETC.. ................................................. 33
15.1. Transaction Expenses...................................... 33
15.2. Survival.................................................. 33
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT..... 33
17. AMENDMENT AND WAIVER............................................. 34
17.1. Requirements.............................................. 34
17.2. Solicitation of Holders of Notes.......................... 34
17.3. Binding Effect, etc....................................... 34
17.4. Notes held by Company, etc................................ 35
18. NOTICES.......................................................... 35
19. REPRODUCTION OF DOCUMENTS........................................ 35
20. CONFIDENTIAL INFORMATION......................................... 35
21. SUBSTITUTION OF PURCHASER........................................ 35
22. MISCELLANEOUS.................................................... 35
22.1. Successors and Assigns.................................... 37
22.2. Payments Due on Non-Business Days......................... 37
22.3. Severability.............................................. 37
22.4. Construction.............................................. 37
22.5. Counterparts.............................................. 38
22.6. Governing Law............................................. 38
SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE B-1 -- Existing Investments
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of
Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
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SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Licenses, Permits, etc.
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15 -- Existing Indebtedness
SCHEDULE 10.3 -- Existing Liens
EXHIBIT 1.1-A -- Form of Senior Note
EXHIBIT 1.1-B -- Form of Supplement
EXHIBIT 1.2 -- Form of Series 1999-A Senior Note
EXHIBIT 4.4(a) -- Form of Opinion of Counsel to the Company
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel to the Purchasers
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APTARGROUP, INC.
475 West Terra Cotta Avenue, Suite E
Crystal Lake, IL 60014
(815) 477-0424
Fax: (815) 477-0481
$200,000,000
Senior Notes Issuable In Series
$107,000,000
6.62% Senior Notes, Series 1999-A
due May 30, 2011
Dated as of May 15, 1999
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
APTARGROUP, INC., a Delaware corporation (the "Company"), agrees with
you as follows:
1. AUTHORIZATION OF NOTES.
1.1. Amount; Establishment of Series.
The Company is contemplating the issue and sale of up to $200,000,000
aggregate principal amount of its Senior Notes issuable in series (the "Notes",
such term to include any such Notes issued in substitution therefor pursuant to
Section 13 of this Agreement). The Notes will be substantially in the form set
out in Exhibit 1.1-A, with such changes therefrom, if any, as may be approved by
the purchasers of such Notes, or series thereof, and the Company. Certain
capitalized terms used in this Agreement are defined in Schedule B; references
to a "Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule
or an Exhibit attached to this Agreement. The Notes may be issued in one or
more series. Each series of Notes, other than the initial series, will be
issued pursuant to a supplement to this Agreement (a "Supplement") in
substantially the form of Exhibit 1.1-B, and will be subject to the following
terms and conditions:
(a) the designation of each series of Notes shall distinguish the
Notes of one series from the Notes of all other series;
(b) the Notes of each series shall rank pari passu with each other
series of the Notes and with the Company's other outstanding senior
unsecured Indebtedness;
(c) each series of Notes shall be dated the date of issue, bear
interest at such rate or rates, mature on such date or dates, be subject to
such mandatory prepayments on the dates and with the Make-Whole Amounts, if
any, as are provided in the Supplement under which such Notes are issued,
and shall have such additional or different conditions precedent to closing
and such additional or different representations and warranties or, subject
to Section 1.1(d), other terms and provisions as shall be specified in such
Supplement;
(d) any additional covenants, Defaults, Events of Default, rights or
similar provisions that are added by a Supplement for the benefit of the
series of Notes to be issued pursuant to such Supplement shall apply to all
outstanding Notes, whether or not the Supplement so provides; and
(e) except to the extent provided in foregoing clause (c), all of the
provisions of this Agreement shall apply to the Notes of each series.
The Purchasers of the Series 1999-A Notes need not purchase subsequent series of
Notes.
1.2. The Series 1999-A Notes.
The Company has authorized, as the initial series of Notes hereunder,
the issue and sale of $107,000,000 aggregate principal amount of Notes to be
designated as its 6.62% Senior Notes, Series 1999-A, due May 30, 2011 (the
"Series 1999-A Notes," such term to include any such Notes issued in
substitution therefor pursuant to Section 13 of this Agreement). The Series
1999-A Notes shall be substantially in the form set out in Exhibit 1.2, with
such changes therefrom, if any, as may be approved by you and the Company.
2. SALE AND PURCHASE OF SERIES 1999-A NOTES.
Subject to the terms and conditions of this Agreement, the Company
will issue and sell to you and each of the other purchasers named in Schedule A
(the "Other Purchasers"), and you and the Other Purchasers will purchase from
the Company, at the Closing provided for in Section 3, Series 1999-A Notes in
the series and principal amount specified opposite your names in Schedule A at
the purchase price of 100% of the principal amount thereof. Your obligation
hereunder and the obligations of the Other Purchasers are several and not joint
obligations and you shall have no liability to any Person for the performance or
non-performance by any Other Purchaser hereunder.
3. CLOSING.
The sale and purchase of the Series 1999-A Notes to be purchased by
you and the Other Purchasers shall occur at the offices of Gardner, Carton &
Douglas, Quaker Tower, Suite 3400, 321 North Clark Street, Chicago, Illinois
60610 at 9:00 a.m., Chicago time, at a closing (the "Closing") on May 28, 1999
or on such other Business Day thereafter on or prior to June 15, 1999 as may be
agreed upon by the Company and you and the Other Purchasers. At the
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Closing the Company will deliver to you the Series 1999-A Notes to be purchased
by you in the form of a single Series 1999-A Note (or such greater number of
Series 1999-A Notes in denominations of at least $500,000 as you may request)
dated the date of the Closing and registered in your name (or in the name of
your nominee), against delivery by you to the Company or its order of
immediately available funds in the amount of the purchase price therefor by wire
transfer of immediately available funds for the account of the Company to
account number 8188-9-00150 at Bank of America, 231 South LaSalle, Chicago, IL
60697, ABA #071000039. If at the Closing the Company shall fail to tender such
Series 1999-A Notes to you as provided above in this Section 3, or any of the
conditions specified in Section 4 shall not have been fulfilled to your
satisfaction, you shall, at your election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights you may
have by reason of such failure or such nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Series 1999-A Notes to be
sold to you at the Closing is subject to the fulfillment to your satisfaction,
prior to or at the Closing, of the following conditions:
4.1. Representations and Warranties.
The representations and warranties of the Company in this Agreement
shall be correct when made and at the time of the Closing.
4.2. Performance; No Default.
The Company shall have performed and complied with all agreements and
conditions contained in this Agreement required to be performed or complied with
by it prior to or at the Closing and after giving effect to the issue and sale
of the Series 1999-A Notes (and the application of the proceeds thereof as
contemplated by Schedule 5.14) no Default or Event of Default shall have
occurred and be continuing. Neither the Company nor any Subsidiary shall have
entered into any transaction since March 31, 1999 that would have been
prohibited by Sections 10.1 through 10.8 had such Sections applied since such
date.
4.3. Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered to you an
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Officer's Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate. The Company shall have delivered to you
-----------------------
a certificate certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and delivery
of the Series 1999-A Notes and the Agreement.
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4.4. Opinions of Counsel.
You shall have received opinions in form and substance satisfactory to
you, dated the date of the Closing (a) from Sidley & Austin, counsel for the
Company, covering the matters set forth in Exhibit 4.4(a) and covering such
other matters incident to the transactions contemplated hereby as you or your
counsel may reasonably request (and the Company instructs its counsel to deliver
such opinion to you) and (b) from Gardner, Carton & Douglas, your special
counsel in connection with such transactions, substantially in the form set
forth in Exhibit 4.4(b) and covering such other matters incident to such
transactions as you may reasonably request.
4.5. Purchase Permitted By Applicable Law, etc.
On the date of the Closing your purchase of Series 1999-A Notes shall
(i) be permitted by the laws and regulations of each jurisdiction to which you
are subject, without recourse to provisions (such as Section 1405(a)(8) of the
New York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (ii) not
violate any applicable law or regulation (including, without limitation,
Regulation T, U or X of the Board of Governors of the Federal Reserve System)
and (iii) not subject you to any tax, penalty or liability under or pursuant to
any applicable law or regulation, which law or regulation was not in effect on
the date hereof. If requested by you, you shall have received an Officer's
Certificate certifying as to such matters of fact as you may reasonably specify
to enable you to determine whether such purchase is so permitted.
4.6. Sale of Other Series 1999-A Notes.
Contemporaneously with the Closing the Company shall sell to the Other
Purchasers and the Other Purchasers shall purchase the Series 1999-A Notes to be
purchased by them at the Closing as specified in Schedule A.
4.7. Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company shall
have paid on or before the Closing the fees, charges and disbursements of your
special counsel referred to in Section 4.4, to the extent reflected in a
statement of such counsel rendered to the Company at least one Business Day
prior to the Closing.
4.8. Private Placement Number.
A Private Placement number issued by Standard & Poor's CUSIP Service
Bureau (in cooperation with the Securities Valuation Office of the National
Association of Insurance Commissioners) shall have been obtained for the Series
1999-A Notes by Gardner, Carton & Douglas.
4.9. Changes in Corporate Structure.
Except as specified in Schedule 4.9, the Company shall not have
changed its jurisdiction of incorporation or been a party to any merger or
consolidation and shall not have
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succeeded to all or any substantial part of the liabilities of any other entity,
at any time following the date of the most recent financial statements referred
to in Schedule 5.5.
4.10. Proceedings and Documents.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be satisfactory to you and your special
counsel, and you and your special counsel shall have received all such
counterpart originals or certified or other copies of such documents as you or
they may reasonably request.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
5.1. Organization; Power and Authority.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and is duly
qualified as a foreign corporation and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company has the corporate power and authority to own or
hold under lease the properties it purports to own or hold under lease, to
transact the business it transacts and proposes to transact, to execute and
deliver this Agreement and the Series 1999-A Notes and to perform the provisions
hereof and thereof.
5.2. Authorization, etc.
This Agreement and the Series 1999-A Notes have been duly authorized
by all necessary corporate action on the part of the Company, and this Agreement
constitutes, and upon execution and delivery thereof each Series 1999-A Note
will constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
5.3. Disclosure.
The Company, through its agent, Banc of America Securities LLC, has
delivered to you and each Other Purchaser a copy of a Private Placement
Memorandum, dated April 1999 (the "Memorandum"), relating to the transactions
contemplated hereby. The Memorandum fairly describes, in all material respects,
the general nature of the business of the Company and its Subsidiaries. Except
as disclosed in Schedule 5.3, this Agreement, the Memorandum, including the
exhibits to the Memorandum, and the documents delivered to you by the Company at
the Closing and the financial statements listed in Schedule 5.5, taken as a
whole, do not
5
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not misleading in light
of the circumstances under which they were made. Except as disclosed in the
Memorandum or as expressly described in Schedule 5.3, or in one of the documents
identified therein, or in the financial statements listed in Schedule 5.5, since
December 31, 1998, there has been no change in the financial condition,
operations, business or properties of the Company or any Subsidiary except
changes that individually or in the aggregate would not reasonably be expected
to have a Material Adverse Effect. There is no fact known to the Company that
would reasonably be expected to have a Material Adverse Effect that has not been
set forth herein or in the Memorandum or in the other documents delivered to you
by the Company specifically for use in connection with the transactions
contemplated hereby.
5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.
(a) Schedule 5.4 contains (except as noted therein) complete and
correct lists (i) of the Company's Subsidiaries, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its organization,
and the percentage of shares of each class of its capital stock or similar
equity interests outstanding owned by the Company and each other
Subsidiary, (ii) of the Company's Affiliates, other than Subsidiaries, and
(iii) of the Company's directors and executive officers. Each Subsidiary
listed in Schedule 5.4 is designated a Restricted Subsidiary by the
Company.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned by the
Company and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another Subsidiary free and
clear of any Lien (except as otherwise permitted by Section 10.3).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or
other legal entity duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and is duly qualified
as a foreign corporation or other legal entity and is in good standing in
each jurisdiction in which such qualification is required by law, other
than those jurisdictions as to which the failure to be so qualified or in
good standing would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such Subsidiary has the
corporate or other power and authority to own or hold under lease the
properties it purports to own or hold under lease and to transact the
business it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any legal
restriction or any agreement (other than this Agreement, the agreements
listed on Schedule 5.4 and customary limitations imposed by corporate law
statutes) restricting the ability of such Restricted Subsidiary to pay
dividends out of profits or make any other similar distributions of profits
to the Company or any of its Subsidiaries that owns outstanding shares of
capital stock or similar equity interests of such Subsidiary.
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5.5. Financial Statements.
The Company has delivered to you and each Other Purchaser copies of
the financial statements of the Company and its Subsidiaries listed on Schedule
5.5. All of said financial statements (including in each case the related
schedules and notes) fairly present in all material respects the consolidated
financial condition of the Company and its Subsidiaries as of the respective
dates specified in such Schedule and the consolidated results of their
operations and cash flows for the respective periods so specified and have been
prepared in accordance with GAAP consistently applied throughout the periods
involved except as set forth in the notes thereto (subject, in the case of any
interim financial statements, to normal year-end adjustments).
5.6. Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Company of this
Agreement and the Series 1999-A Notes will not (i) contravene, result in any
breach of, or constitute a default under, or result in the creation of any Lien
in respect of any property of the Company or any Subsidiary under, any Material
indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease,
corporate charter or by-laws, or any other Material agreement or instrument to
which the Company or any Subsidiary is bound or by which any of their respective
properties may be bound or affected, (ii) violate or result in a breach of any
of the terms, conditions or provisions of any order, judgment, decree, or ruling
of any court, arbitrator or Governmental Authority applicable to the Company or
any Subsidiary or (iii) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or any
Subsidiary other than violations that would not reasonably be expected to have a
Material Adverse Effect.
5.7. Governmental Authorizations, etc.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by the Company of this Agreement or the
Series 1999-A Notes.
5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no actions, suits
or proceedings pending or, to the knowledge of the Company, threatened
against or affecting the Company or any Subsidiary or any property of the
Company or any Subsidiary in any court or before any arbitrator of any kind
or before or by any Governmental Authority that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any
term of any agreement or instrument to which it is a party or by which it
is bound, or any order, judgment, decree or ruling of any court, arbitrator
or Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
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5.9. Taxes.
The Company and its Subsidiaries have filed all income tax returns and
other material tax returns that are required to have been filed in any
jurisdiction, and have paid all taxes shown to be due and payable on such
returns and all other taxes and assessments levied upon them or their
properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent,
except for any taxes and assessments (i) the amount of which is not individually
or in the aggregate Material or (ii) the amount, applicability or validity of
which is currently being contested in good faith by appropriate proceedings and
with respect to which the Company or a Subsidiary, as the case may be, has
established adequate reserves in accordance with GAAP. The Company knows of no
basis for any other tax or assessment that would reasonably be expected to have
a Material Adverse Effect. The charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of Federal, state or other taxes for
all fiscal periods are adequate under GAAP. The Federal income tax liabilities
of the Company and its Subsidiaries have been determined by the Internal Revenue
Service and paid for all fiscal years up to and including the fiscal year ended
December 31, 1994.
5.10. Title to Property; Leases.
The Company and its Subsidiaries have good and sufficient title to the
properties that they own or purport to own and that individually or in the
aggregate are Material, including all such properties reflected in the most
recent audited balance sheet referred to in Section 5.5 or purported to have
been acquired by the Company or any Subsidiary after said date (except as sold
or otherwise disposed of in the ordinary course of business), in each case free
and clear of Liens prohibited by this Agreement. All leases that individually
or in the aggregate are Material are valid and subsisting and are in full force
and effect in all material respects.
5.11. Licenses, Permits, etc.
Except as disclosed in Schedule 5.11,
(a) the Company and its Subsidiaries own or possess all licenses,
permits, franchises, authorizations, patents, copyrights, service marks,
trademarks and trade names, or rights thereto, that individually or in the
aggregate are Material, without known material conflict with the rights of
others;
(b) to the knowledge of the Company, no product of the Company
infringes in any material respect any license, permit, franchise,
authorization, patent, copyright, service mark, trademark, trade name or
other right owned by any other Person; and
(c) to the knowledge of the Company, there is no Material violation by
any Person of any right of the Company or any of its Subsidiaries with
respect to any patent, copyright, service mark, trademark, trade name or
other right owned or used by the Company or any of its Subsidiaries.
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5.12. Compliance with ERISA.
(a) The Company and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except for
such instances of noncompliance as have not resulted in and would not
reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any ERISA Affiliate has incurred any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in Section 3 of ERISA), and
no event, transaction or condition has occurred or exists that would
reasonably be expected to result in the incurrence of any such liability
by the Company or any ERISA Affiliate, or in the imposition of any Lien on
any of the rights, properties or assets of the Company or any ERISA
Affiliate, in either case pursuant to Title I or IV of ERISA or to such
penalty or excise tax provisions or to Section 401(a)(29) or 412 of the
Code, other than such liabilities or Liens as would not be individually or
in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under each
of the Plans (other than Multiemployer Plans), determined as of the end of
such Plan's most recently ended plan year on the basis of the actuarial
assumptions used to determine the actuarial accrued liability on an on-
going funding basis in such Plan's most recent actuarial valuation report,
did not exceed the aggregate current value of the assets of such Plan
allocable to such benefit liabilities. The term "benefit liabilities" has
the meaning specified in section 4001 of ERISA and the terms "current
value" and "present value" have the meaning specified in section 3 of
ERISA.
(c) The Company and its ERISA Affiliates have not incurred withdrawal
liabilities (and are not subject to contingent withdrawal liabilities)
under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
have not been paid, or if contingent, that individually or in the aggregate
are Material.
(d) The expected postretirement benefit obligation (determined as of
the last day of the Company's most recently ended fiscal year in
accordance with Financial Accounting Standards Board Statement No. 106, as
amended by Financial Accounting Standards Board Statement No. 132, without
regard to liabilities attributable to continuation coverage mandated by
section 4980B of the Code) of the Company and its Subsidiaries is not
Material or has been disclosed in the most recent audited consolidated
financial statements of the Company and its Subsidiaries.
(e) The execution and delivery of this Agreement and the issuance and
sale of the Series 1999-A Notes hereunder will not involve any transaction
that is subject to the prohibitions of section 406 of ERISA or in
connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code. The representation by the Company in the
first sentence of this Section 5.12(e) is made in reliance upon and
subject to the accuracy of your representation in Section 6.2 as to the
sources of the funds used to pay the purchase price of the Series 1999-A
Notes to be purchased by you.
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5.13. Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has offered the
Series 1999-A Notes or any similar securities for sale to, or solicited any
offer to buy any of the same from, or otherwise approached or negotiated in
respect thereof with, any person other than you, the Other Purchasers and not
more than 40 other Institutional Investors, each of which has been offered the
Series 1999-A Notes at a private sale for investment. Neither the Company nor
anyone acting on its behalf has taken, or will take, any action that would
subject the issuance or sale of the Series 1999-A Notes to the registration
requirements of Section 5 of the Securities Act.
5.14. Use of Proceeds; Margin Regulations.
The Company will apply the proceeds of the sale of the Series 1999-A
Notes for acquisitions and general corporate purposes, including to repay
Indebtedness of the Company and its Subsidiaries as set forth in Schedule 5.14.
No part of the proceeds from the sale of the Series 1999-A Notes hereunder will
be used, directly or indirectly, for the purpose of buying or carrying any
margin stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or
trading in any securities under such circumstances as to involve the Company in
a violation of Regulation X of said Board (12 CFR 224) or to involve any broker
or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin
stock does not constitute more than 1.0% of the value of the consolidated assets
of the Company and its Subsidiaries and the Company does not have any present
intention that margin stock will constitute more than 1.0% of the value of such
assets. As used in this Section, the terms "margin stock" and "purpose of
buying or carrying" shall have the meanings assigned to them in said Regulation
U. For purposes of the foregoing, margin stock shall not include common stock
of the Company held in its treasury.
5.15. Existing Indebtedness; Future Liens.
(a) Except as described therein, Schedule 5.15 sets forth a complete
and correct list of all outstanding Indebtedness of the Company and its
Subsidiaries as of March 31, 1999, since which date there has been no
Material change in the amounts, interest rates, sinking funds,
installment payments or maturities of the Indebtedness of the Company or
Subsidiaries. Neither the Company nor any Subsidiary is in default and no
waiver of default is currently in effect, in the payment of any principal
or interest on any Indebtedness of the Company or such Subsidiary that is
outstanding in an aggregate principal amount in excess of $2,000,000 and
no event or condition exists with respect to any Indebtedness of the
Company or any Subsidiary that is outstanding in an aggregate principal
amount in excess of $2,000,000 and that would permit (or that with notice
or the lapse of time, or both, would permit) one or more Persons to cause
such Indebtedness to become due and payable before its stated maturity or
before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Company nor
any Subsidiary has agreed or consented to cause or permit in the future
(upon the happening
10
of a contingency or otherwise) any of its property, whether now owned or
hereafter acquired, to be subject to a Lien not permitted by Section
10.3.
5.16. Foreign Assets Control Regulations, etc.
Neither the sale of the Series 1999-A Notes by the Company hereunder
nor its use of the proceeds thereof will violate the Trading with the Enemy Act,
as amended, or any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any
enabling legislation or executive order relating thereto.
5.17. Status under Certain Statutes.
Neither the Company nor any Subsidiary is subject to regulation under
the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, the Interstate Commerce Act, as amended by the
ICC Termination Act, as amended, or the Federal Power Act, as amended.
5.18. Environmental Matters.
Neither the Company nor any Subsidiary has knowledge of any claim or
has received any notice of any claim, and no proceeding has been instituted
asserting any claim against the Company or any of its Subsidiaries or any of
their respective real properties now owned, leased or operated by any of them or
other assets nor, to the knowledge of the Company or any Subsidiary, has any
such proceeding been instituted against any of their respective real properties
formerly owned, for damage to the environment or violation of any Environmental
Laws, except, in each case, such as would not reasonably be expected to result
in a Material Adverse Effect. Except as otherwise disclosed to you in writing,
(a) neither the Company nor any Subsidiary has knowledge of any facts
that would give rise to any claim, for violation of Environmental Laws or
damage to the environment emanating from, occurring on or in any way
related to real properties now or, to the Company's or such Subsidiary's
knowledge, formerly owned, leased or operated by any of them or to other
assets or their use, except, in each case, such as would not reasonably
be expected to result in a Material Adverse Effect;
(b) neither the Company nor any Subsidiary has stored any Hazardous
Materials on real properties now or formerly owned, leased or operated by
any of them and has not disposed of any Hazardous Materials in a manner
contrary to any Environmental Laws in each case in any manner that would
reasonably be expected to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or operated
by the Company or any of its Subsidiaries are in compliance with
applicable Environmental Laws, except where failure to comply would not
reasonably be expected to result in a Material Adverse Effect.
11
5.19. Year 2000.
The Company and its Subsidiaries have conducted a review and
assessment of their computer applications and inquired of their material
suppliers, vendors and customers regarding the "Year 2000 Problem" (i.e., the
risk that computer applications may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date after
December 31, 1999). Based upon such review, assessment and inquiry, the Company
reasonably believes that the Year 2000 Problem will not have a Material Adverse
Effect.
6. REPRESENTATIONS OF THE PURCHASERS.
6.1. Purchase for Investment.
You represent that you are purchasing the Series 1999-A Notes to be
purchased by you for your own account or for one or more separate accounts
maintained by you or for the account of one or more pension or trust funds and
not with a view to the distribution thereof, provided that the disposition of
--------
your or their property shall at all times be within your or their control. You
understand that the Series 1999-A Notes to be purchased by you have not been
registered under the Securities Act and may be resold only if registered
pursuant to the provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that the Company is
not required to register the Series 1999-A Notes.
6.2. Source of Funds.
You represent that at least one of the following statements is an
accurate representation as to each source of funds (a "Source") to be used by
you to pay the purchase price of the Series 1999-A Notes to be purchased by you
hereunder:
(a) if you are an insurance company, the Source does not include
assets allocated to any separate account maintained by you in which any
employee benefit plan (or its related trust) has any interest, other than
a separate account that is maintained solely in connection with your fixed
contractual obligations under which the amounts payable, or credited, to
such plan and to any participant or beneficiary of such plan (including
any annuitant) are not affected in any manner by the investment
performance of the separate account; or
(b) the Source is either (i) an insurance company pooled separate
account, within the meaning of Prohibited Transaction Exemption ("PTE")
90-1 (issued January 29, 1990), or (ii) a bank collective investment fund,
within the meaning of the PTE 91-38 (issued July 12, 1991) and, except as
you have disclosed to the Company in writing pursuant to this paragraph
(b), no employee benefit plan or group of plans maintained by the same
employer or employee organization beneficially owns more than 10% of all
assets allocated to such pooled separate account or collective investment
fund; or
(c) the Source constitutes assets of an "investment fund" (within the
meaning of Part V of the QPAM Exemption) managed by a "qualified
professional asset manager"
12
or "QPAM" (within the meaning of Part V of the QPAM Exemption), no employee
benefit plan's assets that are included in such investment fund, when
combined with the assets of all other employee benefit plans established or
maintained by the same employer or by an affiliate (within the meaning of
Section V(c)(1) of the QPAM Exemption) of such employer or by the same
employee organization and managed by such QPAM, exceed 20% of the total
client assets managed by such QPAM, the conditions of Part I(c) and (g) of
the QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or controlled by the QPAM (applying the definition of "control" in Section
V(e) of the QPAM Exemption) owns a 5% or more interest in the Company and
(i) the identity of such QPAM and (ii) the names of all employee benefit
plans whose assets are included in such investment fund have been disclosed
to the Company in writing pursuant to this paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a separate
account or trust fund comprised of one or more employee benefit plans, each
of which has been identified to the Company in writing pursuant to this
paragraph (e); or
(f) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA; or
(g) the Source is an "insurance company general account" as such term
is defined in the Department of Labor Prohibited Transaction Class
Exemption 95-60 (issued July 12, 1995) ("PTE 95-60") and there is no
"employee benefit plan" with respect to which the aggregate amount of such
general account's reserves and liabilities for the contracts held by or on
behalf of such employee benefit plan and all other employee benefit plans
maintained by the same employer (and affiliates thereof as defined in
Section V(a)(1) of PTE 95-60) or by the same employee organization (in each
case determined in accordance with the provisions of PTE 95-60) exceeds 10%
of the total reserves and liabilities of such general account (as
determined under PTE 95-60) (exclusive of separate account liabilities)
plus surplus as set forth in the National Association of Insurance
Commissioners Annual Statement filed with the state of domicile of such
Purchaser.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan", "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1. Financial and Business Information
The Company shall deliver to each holder of Notes that is an
Institutional Investor:
13
(a) Quarterly Statements -- within 60 days after the end of each
--------------------
quarterly fiscal period in each fiscal year of the Company (other than the
last quarterly fiscal period of each such fiscal year), duplicate copies
of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in equity and
cash flows of the Company and its Subsidiaries, for such quarter and
(in the case of the second and third quarters) for the portion of the
fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly financial
statements generally, and certified by a Senior Financial Officer as fairly
presenting, in all material respects, the consolidated financial condition
of the Company and its Subsidiaries as of the specified dates being
reported on and their consolidated results of operations and cash flows for
the respective periods specified, subject to changes resulting from year-
end adjustments, provided that delivery within the time period specified
--------
above of copies of the Company's Quarterly Report on Form 10-Q prepared in
compliance with the requirements therefor and filed with the Securities and
Exchange Commission shall be deemed to satisfy the requirements of this
Section 7.1(a);
(b) Annual Statements -- within 120 days after the end of each fiscal
-----------------
year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in equity and
cash flows of the Company and its Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail, prepared in accordance with GAAP,
and accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state that
such financial statements present fairly, in all material respects, the
consolidated financial condition of the Company and its Subsidiaries as of
the specified dates being reported upon and their consolidated results of
operations and cash flows for the respective periods specified and have
been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the circumstances, provided
--------
that the delivery within the time period specified above of the Company's
Annual Report on Form 10-K for such fiscal year (or the Company's annual
report to stockholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) prepared in accordance with the requirements therefor and
filed with the Securities and Exchange
14
Commission, together with such accountant's opinion, shall be deemed to
satisfy the requirements of this Section 7.1(b);
(c) Unrestricted Subsidiaries -- if, at the time of delivery of any
-------------------------
financial statements pursuant to Section 7.1(a) or (b), Unrestricted
Subsidiaries account for more than 10% of (i) the consolidated total assets
of the Company and its Subsidiaries reflected in the balance sheet included
in such financial statements or (ii) the consolidated net sales of the
Company and its Subsidiaries reflected in the consolidated statement of
income included in such financial statements, an unaudited balance sheet
for all Unrestricted Subsidiaries taken as whole as at the end of the
fiscal period included in such financial statements and the related
unaudited statements of income, equity and cash flows for such Unrestricted
Subsidiaries for such period, together with consolidating statements
reflecting all eliminations or adjustments necessary to reconcile such
group financial statements to the consolidated financial statements of the
Company and its Subsidiaries, certified by a Senior Financial Officer as
fairly presenting, in all material respects, the financial position of the
companies being reported on as of the date specified and their results of
operations and cash flows for the periods specified, subject, in the case
of financial statements delivered pursuant to Section 7.1(a), to changes
resulting from year-end adjustments;
(d) SEC and Other Reports -- promptly upon their becoming available,
---------------------
one copy of each regular or periodic report, each registration statement
(without exhibits except as expressly requested by such holder), and each
prospectus and all amendments thereto containing information of a financial
nature filed by the Company or any Restricted Subsidiary with the
Securities and Exchange Commission and of all press releases and other
statements concerning a Material development made available generally by
the Company or any Restricted Subsidiary to the public;
(e) Notice of Default or Event of Default -- promptly, and in any
-------------------------------------
event within five Business Days after a Responsible Officer obtains actual
knowledge of the existence of any Default or Event of Default or that any
Person has given any notice or taken any action with respect to a claimed
default hereunder or that any Person has given any notice or taken any
action with respect to a claimed default of the type referred to in Section
11(f), a written notice specifying the nature and period of existence
thereof and what action the Company is taking or proposes to take with
respect thereto;
(f) ERISA Matters -- promptly, and in any event within five days after
-------------
a Responsible Officer becoming aware of any of the following, a written
notice setting forth the nature thereof and the action, if any, that the
Company or an ERISA Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as defined in
section 4043(b) of ERISA and the regulations thereunder, for which
notice thereof has not been waived pursuant to such regulations as in
effect on the date hereof; or
15
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the Company or any
ERISA Affiliate of a notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could result in
the incurrence of any liability by the Company or any ERISA Affiliate
pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans, or in the
imposition of any Lien on any of the rights, properties or assets of
the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA
or such penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then existing,
would reasonably be expected to have a Material Adverse Effect;
(g) Notices from Governmental Authority -- promptly, and in any event
-----------------------------------
within 30 days of receipt thereof, copies of any notice to the Company or
any Restricted Subsidiary from any Federal or state Governmental Authority
relating to any order, ruling, statute or other law or regulation that
would reasonably be expected to have a Material Adverse Effect;
(h) Requested Information -- with reasonable promptness, such other
---------------------
data and information relating to the business, operations, affairs,
financial condition, assets or properties of the Company or any of its
Subsidiaries or relating to the ability of the Company to perform its
obligations hereunder and under the Notes as from time to time may be
reasonably requested by any such holder of Notes; and
(i) Supplements to Agreement -- in the event an additional series of
------------------------
Notes is, or is proposed to be, issued under this Agreement, promptly, and
in any event within 10 Business Days after execution and delivery thereof,
a true copy of the Supplement pursuant to which such Notes are to be, or
were, issued.
7.2. Officer's Certificate.
Each set of financial statements delivered to a holder of Notes
pursuant to Section 7.1(a) or (b) shall be accompanied by a certificate of a
Senior Financial Officer setting forth:
(a) Covenant Compliance -- the information (including detailed
-------------------
calculations) required in order to establish whether the Company was in
compliance with the requirements of Section 10.1 through Section 10.5,
inclusive, during the quarterly or annual period covered by the statements
then being furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of such
Sections, and the calculation of the amount, ratio or percentage then in
existence); and
16
(b) Event of Default -- a statement that such officer has reviewed the
----------------
relevant terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the Company and
its Restricted Subsidiaries from the beginning of the quarterly or annual
period covered by the statements then being furnished to the date of the
certificate and that such review shall not have disclosed the existence
during such period of any condition or event that constitutes a Default or
an Event of Default or, if any such condition or event existed or exists
(including any such event or condition resulting from the failure of the
Company or any Restricted Subsidiary to comply with any Environmental Law),
specifying the nature and period of existence thereof and what action the
Company shall have taken or proposes to take with respect thereto.
7.3. Inspection.
The Company will permit the representatives of each holder of Notes
that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists, at
----------
the expense of such holder and upon reasonable prior notice to the Company,
to visit the principal executive office of the Company, to discuss the
affairs, finances and accounts of the Company and its Restricted
Subsidiaries with the Company's officers and (with the consent of the
Company, which consent will not be unreasonably withheld) to visit the
other offices and properties of the Company and each Restricted Subsidiary,
all at such reasonable times during business hours and as often as may be
reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then exists, at the
-------
expense of the Company and upon reasonable prior notice to the Company, to
visit the principal executive office of the Company or any Restricted
Subsidiary, to examine all their respective books of account, records,
reports and other papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts with their
respective officers, and (with the consent of the Company, which consent
will not be unreasonably withheld) independent public accountants at the
Company's offices, all at such reasonable times during business hours and
as often as may be reasonably requested in writing.
8. PREPAYMENT OF THE SERIES 1999-A NOTES.
8.1. Required Prepayments.
The Series 1999-A Notes are subject to required prepayment on May 30,
2007 and on each May 30 thereafter to and including May 30, 2010, on which dates
the Company will prepay $21,400,000 principal amount (or such lesser principal
amount as shall then be outstanding) of the Series 1999-A Notes, at par, without
payment of the Make-Whole Amount or any premium.
17
8.2. Optional Prepayments with Make-Whole Amount.
The Company may, at its option, upon notice as provided below, prepay
at any time all, or from time to time any part of, the Notes of any series,
including the Series 1999-A Notes, in an amount not less than $2,000,000 in the
aggregate in the case of a partial prepayment, at 100% of the principal amount
so prepaid, plus the Make-Whole Amount determined for the prepayment date with
respect to such principal amount. The Company will give each holder of Notes of
the series to be prepaid written notice of each optional prepayment under this
Section 8.2 not less than 30 days and not more than 60 days prior to the date
fixed for such prepayment. Each such notice shall specify such date, the
aggregate principal amount of the Notes to be prepaid on such date, the
principal amount of each Note held by such holder to be prepaid (determined in
accordance with Section 8.3), and the interest to be paid on the prepayment date
with respect to such principal amount being prepaid, and shall be accompanied by
a certificate of a Senior Financial Officer as to the estimated Make-Whole
Amount due in connection with such prepayment (calculated as if the date of such
notice were the date of the prepayment), setting forth the details of such
computation. Two Business Days prior to such prepayment, the Company shall
deliver to each holder of Notes of the series to be prepaid a certificate of a
Senior Financial Officer specifying the calculation of such Make-Whole Amount as
of the specified prepayment date.
8.3. Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes of a series, the
principal amount of the Notes to be prepaid shall be allocated among all of the
Notes of such series at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof not theretofore
called for prepayment. Each such partial prepayment pursuant to Section 8.2
shall be applied first to the payment due on such Notes at final maturity and
thereafter to any required prepayments on such Notes, in inverse order of
maturity.
8.4. Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this Section 8,
the principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and Make-
Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Company and canceled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
8.5. Purchase of Notes.
The Company will not, and will not permit any Affiliate to, purchase,
redeem, prepay or otherwise acquire, directly or indirectly, any of the
outstanding Notes except upon the payment or prepayment of the Notes in
accordance with the terms of this Agreement and the Notes. The Company will
promptly cancel all Notes acquired by it or any Affiliate pursuant to
18
any payment, prepayment or purchase of Notes pursuant to any provision of this
Agreement and no Notes may be issued in substitution or exchange for any such
Notes.
8.6. Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any Note, an
amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Note over the
amount of such Called Principal, provided that the Make-Whole Amount may in no
--------
event be less than zero. For the purposes of determining the Make-Whole Amount,
the following terms have the following meanings:
"Called Principal" means, with respect to any Note, the principal of
such Note that is to be prepaid pursuant to Section 8.2 or has become or
is declared to be immediately due and payable pursuant to Section 12.1,
as the context requires.
"Discounted Value" means, with respect to the Called Principal of any
Note, the amount obtained by discounting all Remaining Scheduled Payments
with respect to such Called Principal from their respective scheduled due
dates to the Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount factor
(applied on the same periodic basis as that on which interest on the
Notes is payable) equal to the Reinvestment Yield with respect to such
Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of
any Note, .50% over the yield to maturity implied by (i) the yields
reported, as of 10:00 A.M. (New York City time) on the second Business
Day preceding the Settlement Date with respect to such Called Principal,
on the display designated as the "PX1 Screen" on the Bloomberg Financial
Market Service (or such other display as may replace the PX1 Screen on
Bloomberg Financial Market Service) for actively traded U.S. Treasury
securities having a maturity equal to the Remaining Average Life of such
Called Principal as of such Settlement Date, or (ii) if such yields are
not reported as of such time or the yields reported as of such time are
not ascertainable, the Treasury Constant Maturity Series Yields reported,
for the latest day for which such yields have been so reported as of the
second Business Day preceding the Settlement Date with respect to such
Called Principal, in Federal Reserve Statistical Release H.15 (519) (or
any comparable successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to the Remaining Average Life
of such Called Principal as of such Settlement Date. Such implied yield
will be determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the maturity closest to and
greater than the Remaining Average Life and (2) the actively traded U.S.
Treasury security with the maturity closest to and less than the
Remaining Average Life.
"Remaining Average Life" means, with respect to any Called Principal,
the number of years (calculated to the nearest one-twelfth year) obtained
by dividing (i) such Called Principal into (ii) the sum of the products
obtained by multiplying (a) the principal component of each Remaining
Scheduled Payment with respect to such Called Principal
19
by (b) the number of years (calculated to the nearest one-twelfth year)
that will elapse between the Settlement Date with respect to such Called
Principal and the scheduled due date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called
Principal of any Note, all payments of such Called Principal and interest
thereon that would be due after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal were made prior
to its scheduled due date, provided that if such Settlement Date is not a
--------
date on which interest payments are due to be made under the terms of the
Notes in question, then the amount of the next succeeding scheduled
interest payment will be reduced by the amount of interest accrued to
such Settlement Date and required to be paid on such Settlement Date
pursuant to Section 8.2 or 12.1.
"Settlement Date" means, with respect to the Called Principal of any
Note, the date on which such Called Principal is to be prepaid pursuant
to Section 8.2 or has become or is declared to be immediately due and
payable pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
9.1. Compliance with Law.
The Company will, and will cause each Subsidiary to, comply with all
laws, ordinances or governmental rules or regulations to which each of them is
subject, including Environmental Laws, and will obtain and maintain in effect
all licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or to
the conduct of their respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.2. Insurance.
The Company will, and will cause each Restricted Subsidiary to,
maintain, with financially sound and reputable insurers, insurance with respect
to their respective properties and businesses against such casualties and
contingencies, of such types, on such terms and in such amounts (including
deductibles, co-insurance and self-insurance, if adequate reserves are
maintained with respect thereto) as is customary in the case of entities of
established reputations engaged in the same or a similar business and similarly
situated.
9.3. Maintenance of Properties.
The Company will, and will cause each Restricted Subsidiary to,
maintain and keep, or cause to be maintained and kept, their respective
properties in good repair, working
20
order and condition (other than ordinary wear and tear), so that the business
carried on in connection therewith may be properly conducted at all times,
provided that this Section shall not prevent the Company or any Restricted
- --------
Subsidiary from discontinuing the operation and the maintenance of any of its
properties if such discontinuance is desirable in the conduct of its business
and the Company has concluded that such discontinuance would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
9.4. Payment of Taxes and Claims.
The Company will, and will cause each Subsidiary to, file all tax
returns required to be filed in any jurisdiction and to pay and discharge all
taxes shown to be due and payable on such returns and all other taxes,
assessments, governmental charges, or levies imposed on them or any of their
properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent
and all claims for which sums have become due and payable that have or might
become a Lien on properties or assets of the Company or any Subsidiary, provided
--------
that neither the Company nor any Subsidiary need file any such return or pay any
such tax or assessment or claims if (i) the amount, applicability or validity
thereof is contested by the Company or such Subsidiary on a timely basis in good
faith and in appropriate proceedings, and the Company or a Subsidiary has
established adequate reserves therefor in accordance with GAAP on the books of
the Company or such Subsidiary or (ii) the nonfiling of all such returns and the
nonpayment of all such taxes and assessments in the aggregate would not
reasonably be expected to have a Material Adverse Effect.
9.5. Corporate Existence, etc.
Subject to Section 10.5, the Company will at all times preserve and
keep in full force and effect its corporate existence. Subject to Sections 10.4
and 10.5, the Company will at all times preserve and keep in full force and
effect the corporate existence of each Restricted Subsidiary (unless merged into
the Company or a Restricted Subsidiary) and all rights and franchises of the
Company and its Restricted Subsidiaries unless, in the good faith judgment of
the Company, the termination of or failure to preserve and keep in full force
and effect such corporate existence, right or franchise would not, individually
or in the aggregate, be reasonably expected to have a Material Adverse Effect.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
10.1. Adjusted Consolidated Net Worth.
The Company will not permit Adjusted Consolidated Net Worth to be less
than $300,000,000 at any time.
10.2. Indebtedness
The Company will not, and will not permit any Restricted Subsidiary
to, create, assume or incur or in any manner become liable for any Indebtedness,
except:
21
(a) the Notes;
(b) Indebtedness of the Company and its Restricted Subsidiaries
outstanding as of March 31, 1999 and reflected on Schedule 5.15;
(c) Indebtedness of a Restricted Subsidiary to the Company or to
another Wholly-Owned Restricted Subsidiary;
(d) additional unsecured Indebtedness of the Company and its
Restricted Subsidiaries and additional Indebtedness of the Company and
its Restricted Subsidiaries secured by Liens permitted by Sections
10.3(g) and (i), provided that at the time of incurrence thereof and
after giving effect thereto and to the application of the proceeds
thereof:
(i) no Default or Event of Default exists and Consolidated
Indebtedness does not exceed 60% of Consolidated Total Capitalization;
and
(ii) in the case of Indebtedness of a Restricted Subsidiary, the
aggregate principal amount of all Indebtedness of Restricted
Subsidiaries (other than Indebtedness permitted by Section 10.2(c))
does not exceed 45% of Consolidated Net Worth; and
(iii) in the case of Indebtedness of the Company or a Restricted
Subsidiary secured by Liens described in Section 10.3(i), the
aggregate principal amount of all such Indebtedness so secured does
not exceed 15% of Consolidated Net Worth.
For all purposes of this Section 10.2, any Person that becomes a Restricted
Subsidiary after the date of this Agreement shall be deemed to have incurred, at
the time it becomes a Restricted Subsidiary, all Indebtedness of such Person
outstanding immediately after it becomes a Restricted Subsidiary.
10.3. Liens.
The Company will not, and will not permit any Restricted Subsidiary
to, permit to exist, create, assume or incur, directly or indirectly, any Lien
on its properties or assets, whether now owned or hereafter acquired except:
(a) Liens for taxes, assessments or governmental charges not then due
and payable or the nonpayment of which is permitted by Section 9.4;
(b) Liens incidental to the conduct of business or the ownership of
properties and assets (including landlords', lessors', carriers',
warehousemen's, mechanics', materialmen's and other similar liens) and
Liens to secure the performance of bids, tenders, leases or trade
contracts, or to secure statutory obligations (including obligations
under workers compensation, unemployment insurance and other social
security
22
legislation), surety or appeal bonds or other Liens of like general
nature incurred in the ordinary course of business and not in connection
with the borrowing of money;
(c) any attachment or judgment Lien, unless the judgment it secures
has not, within 60 days after the entry thereof, been discharged or
execution thereof stayed pending appeal, or has not been discharged
within 60 days after the expiration of any such stay;
(d) Liens securing Indebtedness of a Restricted Subsidiary to the
Company or to another Wholly-Owned Restricted Subsidiary;
(e) Liens existing on property or assets of the Company or any
Restricted Subsidiary as of the date of this Agreement that are described
in Schedule 10.3;
(f) encumbrances in the nature of leases, subleases, zoning
restrictions, easements, rights of way and other rights and restrictions
of record on the use of real property, minor survey exceptions and
defects in title incidental to the ownership of property or assets or to
the ordinary conduct of business, which, individually and in the
aggregate, do not materially impair the use or value of the property or
assets subject thereto;
(g) Liens (i) existing on property at the time of its acquisition by
the Company or a Restricted Subsidiary and not created in contemplation
thereof, whether or not the Indebtedness secured by such Lien is assumed
by the Company or a Restricted Subsidiary; or (ii) on property created
contemporaneously with its acquisition or construction or within 180 days
of the acquisition or completion of construction thereof to secure or
provide for all or a portion of the purchase price or cost of
construction of such property after the date of Closing; or (iii)
existing on property of a Person at the time such Person is merged or
consolidated with, or becomes a Restricted Subsidiary of, or
substantially all of its assets are acquired by, the Company or a
Restricted Subsidiary and not created in contemplation thereof; provided
--------
that, in the case of clauses (i), (ii) and (iii), such Liens do not
extend to additional property of the Company or any Restricted Subsidiary
and that the aggregate principal amount of Indebtedness secured by each
such Lien does not exceed the lesser of the cost of acquisition or
construction or the fair market value (as determined in good faith by one
or more officers to whom authority to enter into the transaction has been
delegated by the Board of Directors of the Company) of the property
subject thereto;
(h) Liens resulting from extensions, renewals or replacements of
Liens permitted by paragraphs (e) and (g), provided that (i) there is no
increase in the principal amount or decrease in maturity of the
Indebtedness secured thereby at the time of such extension, renewal or
replacement, (ii) any new Lien attaches only to the same property
theretofore subject to such earlier Lien and (iii) immediately after such
extension, renewal or replacement no Default or Event of Default would
exist; and
(i) Additional Liens securing Indebtedness not otherwise permitted by
paragraphs (a) through (h) above, provided that, at the time of creation,
assumption or
23
incurrence thereof and immediately after giving effect thereto and to the
application of the proceeds therefrom, such Indebtedness is permitted by
Section 10.2(d)(iii).
10.4. Sale of Assets.
Except as permitted by Section 10.5, the Company will not, and will
not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise
dispose of, including by way of merger (collectively a "Disposition"), any
assets, including capital stock of Restricted Subsidiaries, in one or more
transactions, to any Person, other than (a) Dispositions in the ordinary course
of business, (b) Dispositions by the Company to a Restricted Subsidiary or by a
Restricted Subsidiary to the Company or another Restricted Subsidiary or (c)
Dispositions not otherwise permitted by this Section 10.4, provided that the
aggregate net book value of all assets so disposed of in any fiscal year
pursuant to this Section 10.4(c) does not exceed 10% of Consolidated Total
Assets as of the end of the immediately preceding fiscal year. Notwithstanding
the foregoing, the Company may, or may permit any Restricted Subsidiary to, make
a Disposition and the assets subject to such Disposition shall not be subject to
or included in the foregoing limitation and computation contained in clause (c)
of the preceding sentence to the extent that (x) such assets are leased back by
the Company or any Restricted Subsidiary, as lessee, within 180 days of the
original acquisition or construction thereof by the Company or such Restricted
Subsidiary, or (y) the net proceeds from such Disposition are within 180 days of
such Disposition (A) reinvested in productive assets by the Company or a
Restricted Subsidiary consistent with Section 10.8 or (B) applied to the payment
or prepayment of any outstanding Indebtedness of the Company or any Restricted
Subsidiary that is not subordinated to the Notes. Any prepayment of Notes
pursuant to this Section 10.4 shall be in accordance with Sections 8.2 and 8.3,
without regard to the minimum prepayment requirements of Section 8.2.
10.5. Mergers, Consolidations, etc.
The Company will not, and will not permit any Restricted Subsidiary
to, consolidate with or merge with any other Person or convey, transfer, sell or
lease all or substantially all of its assets in a single transaction or series
of transactions to any Person except that:
(a) The Company may consolidate or merge with any other Person or
convey, transfer, sell or lease all or substantially all of its assets in
a single transaction or series of transactions to any Person, provided
that:
(i) the successor formed by such consolidation or the survivor
of such merger or the Person that acquires by conveyance, transfer,
sale or lease of all or substantially all of the assets of the Company
as an entirety, as the case may be, shall be a solvent corporation
organized and existing under the laws of the United States or any
State thereof (including the District of Columbia), and, if the
Company is not such corporation, such corporation (x) shall have
executed and delivered to each holder of any Notes its assumption of
the due and punctual performance and observance of each covenant and
condition of this Agreement and the Notes and (y) shall have caused to
be delivered to each holder of any Notes an opinion of independent
counsel reasonably satisfactory to the Required
24
Holders, to the effect that all agreements or instruments effecting
such assumption are enforceable in accordance with their terms and
comply with the terms hereof;
(ii) the successor formed by such consolidation or the survivor
of such merger or the Person that acquires by conveyance, transfer,
sale or lease all or substantially all of the assets of the Company as
an entirety, as the case may be, could incur immediately thereafter
$1.00 of additional Indebtedness pursuant to Section 10.2(d);
(iii) immediately before and after giving effect to such
transaction, no Default or Event of Default shall exist; and
(b) Any Restricted Subsidiary may (x) merge into the Company
(provided that the Company is the surviving corporation) or another
Wholly-Owned Restricted Subsidiary or (y) sell, transfer or lease all or
any part of its assets to the Company or another Wholly-Owned Restricted
Subsidiary, or (z) merge or consolidate with, or sell, transfer or lease
all or substantially all of its assets to, any Person in a transaction
that is permitted by Section 10.4 or, as a result of which, such Person
becomes a Restricted Subsidiary; provided in each instance set forth in
--------
clauses (x) through (z) that, immediately before and after giving effect
thereto, there shall exist no Default or Event of Default;
No such conveyance, transfer, sale or lease of all or substantially all of the
assets of the Company shall have the effect of releasing the Company or any
successor corporation that shall theretofore have become such in the manner
prescribed in this Section 10.5 from its liability under this Agreement or the
Notes.
10.6. Disposition of Stock of Restricted Subsidiaries.
The Company (i) will not permit any Restricted Subsidiary to issue its
capital stock, or any warrants, rights or options to purchase, or securities
convertible into or exchangeable for, such capital stock, to any Person other
than the Company or another Wholly-Owned Restricted Subsidiary, and (ii) will
not, and will not permit any Restricted Subsidiary to, sell, transfer or
otherwise dispose of any shares of capital stock of a Restricted Subsidiary if
such sale would be prohibited by Section 10.4. If a Restricted Subsidiary at any
time ceases to be such as a result of a sale or issuance of its capital stock,
any Liens on property of the Company or any other Restricted Subsidiary securing
Indebtedness owed to such Restricted Subsidiary, which is not contemporaneously
repaid, together with such Indebtedness, shall be deemed to have been incurred
by the Company or such other Restricted Subsidiary, as the case may be, at the
time such Restricted Subsidiary ceases to be a Restricted Subsidiary.
10.7. Designation of Unrestricted and Restricted Subsidiaries.
The Company may designate any Restricted Subsidiary as an Unrestricted
Subsidiary and any Unrestricted Subsidiary as a Restricted Subsidiary; provided
that, (a) if such Subsidiary initially is a Restricted Subsidiary, then such
Restricted Subsidiary may be subsequently designated as an Unrestricted
Subsidiary and such Unrestricted Subsidiary may be
25
subsequently designated as a Restricted Subsidiary, but no further changes in
designation may be made, (b) if such Subsidiary initially is an Unrestricted
Subsidiary, then such Unrestricted Subsidiary may be subsequently designated as
a Restricted Subsidiary and such Restricted Subsidiary may be subsequently
designated as an Unrestricted Subsidiary, but no further changes in designation
may be made, and (c) immediately before and after designation of a Restricted
Subsidiary as an Unrestricted Subsidiary there exists no Default or Event of
Default.
10.8. Nature of Business.
The Company will not, and will not permit any Restricted Subsidiary
to, engage in any business if, as a result, the general nature of the business
in which the Company and its Restricted Subsidiaries, taken as a whole, would
then be engaged would be substantially changed from the general nature of the
business in which the Company and its Restricted Subsidiaries, taken as a whole,
are engaged on the date of this Agreement.
10.9. Transactions with Affiliates.
The Company will not and will not permit any Restricted Subsidiary to
enter into directly or indirectly any Material transaction or Material group of
related transactions (including the purchase, lease, sale or exchange of
properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or another Restricted Subsidiary), except upon fair and
reasonable terms no less favorable to the Company or such Restricted Subsidiary
than would be obtainable in a comparable arm's-length transaction with a Person
not an Affiliate.
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions
or events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or Make-
Whole Amount, if any, on any Note when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration
or otherwise; or
(b) the Company defaults in the payment of any interest on any Note
for more than five Business Days after the same becomes due and payable;
or
(c) the Company defaults in the performance of or compliance with any
term contained in Sections 10.2, 10.4 or 10.5; or
(d) the Company defaults in the performance of or compliance with any
term contained herein (other than those referred to in paragraphs (a),
(b) and (c) of this Section 11) and such default is not remedied within
30 days after the earlier of (i) a Responsible Officer obtaining actual
knowledge of such default and (ii) the Company receiving written notice
of such default from any holder of a Note; or
(e) any representation or warranty made in writing by or on behalf of
the Company or by any officer of the Company in this Agreement or in any
writing furnished
26
in connection with the transactions contemplated hereby proves to have
been false or incorrect in any material respect on the date as of which
made; or
(f) (i) the Company or any Significant Subsidiary is in default (as
principal or as guarantor or other surety) in the payment of any
principal of or premium or make-whole amount or interest aggregating
$100,000 or more on any Indebtedness that is outstanding in an aggregate
principal amount in excess of 5% of Adjusted Consolidated Net Worth (as
of the end of the most recently completed fiscal period of the Company)
beyond any period of grace provided with respect thereto or (ii) the
Company or any Significant Subsidiary is in default in the performance of
or compliance with any term of any evidence of any Indebtedness that is
outstanding in an aggregate principal amount in excess of 5% of Adjusted
Consolidated Net Worth (as of the end of the most recently completed
fiscal period of the Company) or of any mortgage, indenture or other
agreement relating thereto or any other condition exists, and as a
consequence of such default or condition such Indebtedness has become, or
has been declared, due and payable before its stated maturity or before
its regularly scheduled dates of payment; or
(g) the Company or any Significant Subsidiary (i) is generally not
paying, or admits in writing its inability to pay, its debts as they
become due, (ii) files, or consents by answer or otherwise to the filing
against it of, a petition for relief or reorganization or arrangement or
any other petition in bankruptcy, for liquidation or to take advantage of
any bankruptcy, insolvency, reorganization, moratorium or other similar
law of any jurisdiction, (iii) makes an assignment for the benefit of its
creditors, (iv) consents to the appointment of a custodian, receiver,
trustee or other officer with similar powers with respect to it or with
respect to any substantial part of its property, (v) is adjudicated as
insolvent or to be liquidated, or (vi) takes corporate action for the
purpose of any of the foregoing; or
(h) a court or governmental authority of competent jurisdiction
enters an order appointing, without consent by the Company or any
Significant Subsidiary, a custodian, receiver, trustee or other officer
with similar powers with respect to it or with respect to any substantial
part of its property, or constituting an order for relief or approving a
petition for relief or reorganization or any other petition in bankruptcy
or for liquidation or to take advantage of any bankruptcy or insolvency
law of any jurisdiction, or ordering the dissolution, winding-up or
liquidation of the Company or any Significant Subsidiary, or any such
petition shall be filed against the Company or any Significant Subsidiary
and such petition shall not be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money
aggregating 5% or more of Adjusted Consolidated Net Worth (as of the end
of the most recently completed fiscal period of the Company) are rendered
against one or more of the Company and its Significant Subsidiaries,
which judgments are not, within 60 days after entry thereof, bonded,
discharged or stayed pending appeal, or are not discharged within 60 days
after the expiration of such stay; or
(j) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or
27
extension of any amortization period is sought or granted under section
412 of the Code, (ii) a notice of intent to terminate any Plan shall have
been or is reasonably expected to be filed with the PBGC or the PBGC
shall have instituted proceedings under ERISA section 4042 to terminate
or appoint a trustee to administer any Plan or the PBGC shall have
notified the Company or any ERISA Affiliate that a Plan may become a
subject of any such proceedings, (iii) the aggregate "amount of unfunded
benefit liabilities" (within the meaning of section 4001(a)(18) of ERISA)
under all Plans, determined in accordance with Title IV of ERISA, shall
equal or exceed 5% of Adjusted Consolidated Net Worth (as of the end of
the most recently completed fiscal period of the Company), (iv) the
Company or any ERISA Affiliate shall have incurred or is reasonably
expected to incur any liability pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to employee benefit
plans, (v) the Company or any ERISA Affiliate withdraws from any
Multiemployer Plan, or (vi) the Company or any Subsidiary establishes or
amends any employee welfare benefit plan that provides post-employment
welfare benefits in a manner that would increase the liability of the
Company or any Subsidiary thereunder; and any such event or events
described in clauses (i) through (vi) above, either individually or
together with any other such event or events, would reasonably be
expected to have a Material Adverse Effect.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. Acceleration.
(a) If an Event of Default with respect to the Company described in
paragraph (g) or (h) of Section 11 (other than an Event of Default
described in clause (i) of paragraph (g) or described in clause (vi) of
paragraph (g) by virtue of the fact that such clause encompasses clause
(i) of paragraph (g)) has occurred, all the Notes then outstanding shall
automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any
holder or holders of more than 50% in principal amount of the Notes at
the time outstanding may at any time at its or their option, by notice or
notices to the Company, declare all Notes then outstanding to be
immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing, any holder or holders of Notes
at the time outstanding affected by such Event of Default may at any
time, at its or their option, by notice or notices to the Company,
declare all the Notes held by it or them to be immediately due and
payable.
Upon any Notes becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Notes will forthwith mature and
the entire unpaid principal amount of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) the Make-Whole Amount determined in respect of
such principal amount (to the full extent permitted by
28
applicable law), shall all be immediately due and payable, in each and every
case without presentment, demand, protest or further notice, all of which are
hereby waived. The Company acknowledges, and the parties hereto agree, that each
holder of a Note has the right to maintain its investment in the Notes free from
repayment by the Company (except as herein specifically provided for) and that
the provision for payment of a Make-Whole Amount by the Company in the event
that the Notes are prepaid or are accelerated as a result of an Event of
Default, is intended to provide compensation for the deprivation of such right
under such circumstances.
12.2. Other Remedies.
If any Default or Event of Default has occurred and is continuing, and
irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 12.1, the holder of any Note at the time
outstanding may proceed to protect and enforce the rights of such holder by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any Note, or for an
injunction against a violation of any of the terms hereof or thereof, or in aid
of the exercise of any power granted hereby or thereby or by law or otherwise.
12.3. Rescission.
At any time after any Notes have been declared due and payable
pursuant to clause (b) or (c) of Section 12.1, the holders of more than 50% in
principal amount of the Notes then outstanding, by written notice to the
Company, may rescind and annul any such declaration and its consequences if (a)
the Company has paid all overdue interest on the Notes, all principal of and
Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid
other than by reason of such declaration, and all interest on such overdue
principal and Make-Whole Amount, if any, and (to the extent permitted by
applicable law) any overdue interest in respect of the Notes, at the Default
Rate, (b) all Events of Default and Defaults, other than non-payment of amounts
that have become due solely by reason of such declaration, have been cured or
have been waived pursuant to Section 17, and (c) no judgment or decree has been
entered for the payment of any monies due pursuant hereto or to the Notes. No
rescission and annulment under this Section 12.3 will extend to or affect any
subsequent Event of Default or Default or impair any right consequent thereon.
12.4. No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of any
Note in exercising any right, power or remedy shall operate as a waiver thereof
or otherwise prejudice such holder's rights, powers or remedies. No right, power
or remedy conferred by this Agreement or by any Note upon any holder thereof
shall be exclusive of any other right, power or remedy referred to herein or
therein or now or hereafter available at law, in equity, by statute or
otherwise. Without limiting the obligations of the Company under Section 15, the
Company will pay to the holder of each Note on demand such further amount as
shall be sufficient to cover all costs and expenses of such holder incurred in
any enforcement or collection under this Section 12, including, without
limitation, reasonable attorneys' fees, expenses and disbursements.
29
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1. Registration of Notes.
The Company shall keep at its principal executive office a register
for the registration and registration of transfers of Notes. The name and
address of each holder of one or more Notes, each transfer thereof and the name
and address of each transferee of one or more Notes shall be registered in such
register. Prior to due presentment for registration of transfer, the Person in
whose name any Note shall be registered shall be deemed and treated as the owner
and holder thereof for all purposes hereof, and the Company shall not be
affected by any notice or knowledge to the contrary. The Company shall give to
any holder of a Note that is an Institutional Investor, promptly upon request
therefor, a complete and correct copy of the names and addresses of all
registered holders of Notes.
13.2. Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office of the
Company for registration of transfer or exchange (and in the case of a surrender
for registration of transfer, duly endorsed or accompanied by a written
instrument of transfer duly executed by the registered holder of such Note or
his attorney duly authorized in writing and accompanied by the address for
notices of each transferee of such Note or part thereof), the Company shall
execute and deliver, at the Company's expense (except as provided below), one or
more new Notes (as requested by the holder thereof) of the same series in
exchange therefor, in an aggregate principal amount equal to the unpaid
principal amount of the surrendered Note. Each such new Note shall be payable to
such Person as such holder may request and shall be substantially in the form of
the Note established for such series. Each such new Note shall be dated and bear
interest from the date to which interest shall have been paid on the surrendered
Note or dated the date of the surrendered Note if no interest shall have been
paid thereon. The Company may require payment of a sum sufficient to cover any
stamp tax or governmental charge imposed in respect of any such transfer of
Notes. Notes shall not be transferred in denominations of less than $500,000,
provided that if necessary to enable the registration of transfer by a holder
- --------
of its entire holding of Notes, one Note may be in a denomination of less than
$500,000. Any transferee, by its acceptance of a Note registered in its name (or
the name of its nominee), shall be deemed to have made the representation set
forth in Section 6.2.
13.3. Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from
such Institutional Investor of such ownership and such loss, theft, destruction
or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note
--------
is, or is a nominee for, an original Purchaser or another Institutional
Investor holder of a Note with a minimum net worth of at least
$50,000,000, such Person's own unsecured agreement of indemnity shall be
deemed to be satisfactory), or
30
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a new
Note of the same series, dated and bearing interest from the date to which
interest shall have been paid on such lost, stolen, destroyed or mutilated Note
or dated the date of such lost, stolen, destroyed or mutilated Note if no
interest shall have been paid thereon.
14. PAYMENTS ON NOTES.
14.1. Place of Payment.
Subject to Section 14.2, payments of principal, Make-Whole Amount, if
any, and interest becoming due and payable on the Notes shall be made in
Chicago, Illinois at the principal office of Bank of America in such
jurisdiction. The Company may at any time, by notice to each holder of a Note,
change the place of payment of the Notes so long as such place of payment shall
be either the principal office of the Company in such jurisdiction or the
principal office of a bank or trust company in such jurisdiction.
14.2. Home Office Payment.
So long as you or your nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note for principal,
Make-Whole Amount, if any, and interest by the method and at the address
specified for such purpose below your name in Schedule A, or by such other
method or at such other address as you shall have from time to time specified to
the Company in writing for such purpose, without the presentation or surrender
of such Note or the making of any notation thereon, except that upon written
request of the Company made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, you shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its
principal executive office or at the place of payment most recently designated
by the Company pursuant to Section 14.1. Prior to any sale or other disposition
of any Note held by you or your nominee you will, at your election, either
endorse thereon the amount of principal paid thereon and the last date to which
interest has been paid thereon or surrender such Note to the Company in exchange
for a new Note or Notes pursuant to Section 13.2. The Company will afford the
benefits of this Section 14.2 to any Institutional Investor that is the direct
or indirect transferee of any Note purchased by you under this Agreement and
that has made the same agreement relating to such Note as you have made in this
Section 14.2.
15. EXPENSES, ETC.
15.1. Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated,
the Company will pay all reasonable costs and expenses (including reasonable
attorneys' fees of a special counsel and, if reasonably required, local or other
counsel) incurred by you and each Other Purchaser or holder of a Note in
connection with such transactions and in connection with any amendments, waivers
or consents under or in respect of this Agreement or the Notes
31
(whether or not such amendment, waiver or consent becomes effective), including,
without limitation: (a) the reasonable costs and expenses incurred in enforcing
or defending (or determining whether or how to enforce or defend) any rights
under this Agreement or the Notes or in responding to any subpoena or other
legal process or informal investigative demand issued in connection with this
Agreement or the Notes, or by reason of being a holder of any Note, and (b) the
reasonable costs and expenses, including financial advisors' fees, incurred in
connection with the insolvency or bankruptcy of the Company or any Subsidiary or
in connection with any work-out or restructuring of the transactions
contemplated hereby and by the Notes. The Company will pay, and will save you
and each other holder of a Note harmless from, all claims in respect of any
fees, costs or expenses if any, of brokers and finders (other than those
retained by you).
15.2. Survival.
The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement or the Notes, and the termination of this Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or transfer
by you of any Note or portion thereof or interest therein and the payment of any
Note, and may be relied upon by any subsequent holder of a Note, regardless of
any investigation made at any time by or on behalf of you or any other holder of
a Note. All statements contained in any certificate or other instrument
delivered by or on behalf of the Company pursuant to this Agreement shall be
deemed representations and warranties of the Company under this Agreement.
Subject to the preceding sentence, this Agreement and the Notes embody the
entire agreement and understanding between you and the Company and supersede all
prior agreements and understandings relating to the subject matter hereof.
17. AMENDMENT AND WAIVER.
17.1. Requirements.
This Agreement and the Notes may be amended, and the observance of any
term hereof or of the Notes may be waived (either retroactively or
prospectively), with (and only with) the written consent of the Company and the
Required Holders, except that (a) no amendment or waiver of any of the
provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it
is used therein), will be effective as to you unless consented to by you in
writing, and (b) no such amendment or waiver may, without the written consent of
the holder of each Note at the time outstanding affected thereby, (i) subject to
the provisions of Section 12 relating to acceleration or rescission, change the
amount or time of any prepayment or payment of principal of, or reduce the rate
or change the time of payment or method of computation of interest or of the
Make-Whole Amount on, the Notes, (ii) change the percentage of the principal
amount of the Notes the
32
holders of which are required to consent to any such amendment or waiver, or
(iii) amend any of Sections 8, 11(a), 11(b), 12, 17 or 20.
17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
------------
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is
required, to enable such holder to make an informed and considered
decision with respect to any proposed amendment, waiver or consent in
respect of any of the provisions hereof or of the Notes. The Company will
deliver executed or true and correct copies of each amendment, waiver or
consent effected pursuant to the provisions of this Section 17 to each
holder of outstanding Notes promptly following the date on which it is
executed and delivered by, or receives the consent or approval of, the
requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or cause
-------
to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, or grant any security, to any holder of Notes
as consideration for or as an inducement to the entering into by any
holder of Notes or any waiver or amendment of any of the terms and
provisions hereof unless such remuneration is concurrently paid, or
security is concurrently granted, on the same terms, ratably to each
holder of Notes then outstanding even if such holder did not consent to
such waiver or amendment.
17.3. Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17
applies equally to all holders of Notes and is binding upon them and upon each
future holder of any Note and upon the Company without regard to whether such
Note has been marked to indicate such amendment or waiver. No such amendment or
waiver will extend to or affect any obligation, covenant, agreement, Default or
Event of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder or under any Note shall operate as
a waiver of any rights of any holder of such Note. As used herein, the term
"this Agreement" or "the Agreement" and references thereto shall mean this
Agreement as it may from time to time be amended or supplemented.
17.4. Notes held by Company, etc.
Solely for the purpose of determining whether the holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this
Agreement or the Notes, or have directed the taking of any action provided
herein or in the Notes to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or any of its
Affiliates shall be deemed not to be outstanding.
33
18. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other
address as you or it shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such
address as such other holder shall have specified to the Company in
writing, or
(iii) if to the Company, to the Company at its address set forth
at the beginning hereof to the attention of Senior Financial Officer,
or at such other address as the Company shall have specified to the
holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to you by or on behalf of the Company or any Subsidiary in
connection with the transactions contemplated by or otherwise pursuant to this
Agreement that is proprietary in nature and that was clearly marked or labeled
or otherwise adequately identified in writing when received by you as being
confidential information of the Company or such Subsidiary, provided that such
--------
term does not include information that (a) was publicly known or otherwise known
to you prior to the time of such disclosure, (b) subsequently becomes publicly
known through no act or omission by you or any person acting on your behalf, (c)
otherwise becomes
34
known to you other than through disclosure by the Company or any Subsidiary or
(d) constitutes financial statements delivered to you under Section 7.1 that are
otherwise publicly available. You will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by you in good
faith to protect confidential information of third parties delivered to you,
provided that you may deliver or disclose Confidential Information to (i) your
directors, trustees, officers, employees, agents, attorneys and affiliates (to
the extent such disclosure reasonably relates to the administration of the
investment represented by your Notes), (ii) your financial advisors and other
professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this Section 20, (iii)
any other holder of any Note, (iv) any Institutional Investor to which you sell
or offer to sell such Note or any part thereof or any participation therein (if
such Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 20), (v) any Person
from which you offer to purchase any security of the Company (if such Person has
agreed in writing prior to its receipt of such Confidential Information to be
bound by the provisions of this Section 20), (vi) any federal or state
regulatory authority having jurisdiction over you, (vii) the National
Association of Insurance Commissioners or any similar organization, or any
nationally recognized rating agency that requires access to information about
your investment portfolio or (viii) any other Person to which such delivery or
disclosure may be necessary or appropriate (w) to effect compliance with any
law, rule, regulation or order applicable to you, (x) in response to any
subpoena or other legal process, (y) in connection with any litigation to which
you are a party or (z) if an Event of Default has occurred and is continuing, to
the extent you may reasonably determine such delivery and disclosure to be
necessary or appropriate in the enforcement or for the protection of the rights
and remedies under your Notes and this Agreement. Each holder of a Note, by its
acceptance of a Note, will be deemed to have agreed to be bound by and to be
entitled to the benefits of this Section 20 as though it were a party to this
Agreement. On reasonable request by the Company in connection with the delivery
to any holder of a Note of information required to be delivered to such holder
under this Agreement or requested by such holder (other than a holder that is a
party to this Agreement or its nominee), such holder will enter into an
agreement with the Company embodying the provisions of this Section 20.
21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as
the purchaser of the Notes that you have agreed to purchase hereunder, by
written notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you" is used in this Agreement (other than in
this Section 21), such word shall be deemed to refer to such Affiliate in lieu
of you. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the Company of notice of such transfer,
wherever the word "you" is used in this Agreement (other than in this Section
21), such word shall no longer be deemed to refer to such Affiliate, but shall
refer to you, and you shall have all the rights of an original holder of the
Notes under this Agreement.
35
22. MISCELLANEOUS.
22.1. Successors and Assigns.
All covenants and other agreements contained in this Agreement by or
on behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of a Note) whether so expressed or not.
22.2. Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Make-Whole Amount or interest on
any Note that is due on a date other than a Business Day shall be made on the
next succeeding Business Day without including the additional days elapsed in
the computation of the interest payable on such next succeeding Business Day.
22.3. Severability.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.4. Construction.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained
herein, so that compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be taken by any Person,
or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
22.5. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
22.6. Governing Law.
This Agreement shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
36
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Company, whereupon the foregoing shall become a binding agreement between you
and the Company.
Very truly yours,
APTARGROUP, INC.
By: /s/ Stephen J. Hagge
----------------------------------
Name: Stephen J. Hagge
--------------------------------
Title: Executive Vice President and
--------------------------------
CFO, Secretary and Treasurer
--------------------------------
S-1
The foregoing is agreed
to as of the date thereof.
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Mary Ann McCarthy
----------------------------
Name: Mary Ann McCarthy
----------------------------
Title: Managing Director
----------------------------
C.M. LIFE INSURANCE COMPANY
By: /s/ Mary Ann McCarthy
----------------------------
Name: Mary Ann McCarthy
----------------------------
Title: Investment Officer
----------------------------
GENERAL AMERICAN LIFE INSURANCE
COMPANY
BY: CONNING ASSET MANAGEMENT COMPANY
By: /s/ Laura R. Caro
----------------------------
Name: Laura R. Caro
----------------------------
Title: Senior Vice President
----------------------------
GENERAL AMERICAN LIFE INSURANCE
COMPANY SEPARATE ACCOUNT 9
BY: CONNING ASSET MANAGEMENT COMPANY
By: /s/ Laura R. Caro
----------------------------
Name: Laura R. Caro
----------------------------
Title: Senior Vice President
----------------------------
RGA REINSURANCE COMPANY
BY: CONNING ASSET MANAGEMENT
COMPANY
By: /s/ Laura R. Caro
----------------------------
S-2
Name: Laura R. Caro
----------------------------
Title: Senior Vice President
----------------------------
COVA FINANCIAL LIFE INSURANCE
COMPANY
BY: CONNING ASSET MANAGEMENT
COMPANY
By: /s/ Laura R. Caro
----------------------------
Name: Laura R. Caro
----------------------------
Title: Senior Vice President
----------------------------
COVA FINANCIAL SERVICES LIFE
INSURANCE COMPANY
BY: CONNING ASSET MANAGEMENT
COMPANY
By: /s/ Laura R. Caro
----------------------------
Name: Laura R. Caro
----------------------------
Title: Senior Vice President
----------------------------
WASHINGTON UNIVERSITY
BY: CONNING ASSET MANAGEMENT
COMPANY
By: /s/ Laura R. Caro
----------------------------
Name: Laura R. Caro
----------------------------
Title: Senior Vice President
----------------------------
SUN LIFE ASSURANCE COMPANY OF
CANADA
By: /s/ John N. Whelihan
----------------------------
Name: John N. Whelihan
----------------------------
Title: Vice President, U.S. Private
----------------------------
Placements - for President
----------------------------
S-3
By: /s/ Julia H. Holloway
------------------------------
Name: Julia H. Holloway
------------------------------
Title: Senior Counsel - for Secretary
------------------------------
STATE FARM LIFE INSURANCE COMPANY
By: /s/ Lyle Triebwasser By: /s/ Larry Rottunda
------------------------------ ------------------------------
Name: Lyle Triebwasser Name: Larry Rottunda
------------------------------ ------------------------------
Title: Senior Investment Officer Title: Assistant Secretary
------------------------------ ------------------------------
NATIONWIDE INDEMNITY COMPANY
By: /s/ Mark W. Poeppelman
------------------------------
Name: Mark W. Poeppelman
------------------------------
Title: Authorized Signatory
------------------------------
AMCO INSURANCE COMPANY
By: /s/ Mark W. Poeppelman
------------------------------
Name: Mark W. Poeppelman
------------------------------
Title: Authorized Signatory
------------------------------
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Mark W. Poeppelman
------------------------------
Name: Mark W. Poeppelman
------------------------------
Title: Authorized Signatory
------------------------------
LUTHERAN BROTHERHOOD
By: /s/ Mark O. Swenson
------------------------------
Name: Mark O. Swenson
------------------------------
Title: Assistant Vice President
------------------------------
S-4
MUTUAL TRUST LIFE INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Dianne Orbison
------------------------------
Name: Dianne Orbison
------------------------------
Title: Vice President
------------------------------
NATIONAL TRAVELERS LIFE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Dianne Orbison
------------------------------
Name: Dianne Orbison
------------------------------
Title: Vice President
------------------------------
GUARANTEE RESERVE LIFE INSURANCE
COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Dianne Orbison
------------------------------
Name: Dianne Orbison
------------------------------
Title: Vice President
------------------------------
PIONEER MUTUAL LIFE INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Dianne Orbison
------------------------------
Name: Dianne Orbison
------------------------------
Title: Vice President
------------------------------
THE CATHOLIC AID ASSOCIATION
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Loren Haugland
------------------------------
Name: Loren Haugland
------------------------------
Title: Vice President
------------------------------
S-5
GREAT WESTERN INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Loren Haugland
------------------------------
Name: Loren Haugland
------------------------------
Title: Vice President
------------------------------
PROTECTED HOME MUTUAL LIFE INSURANCE
COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Loren Haugland
------------------------------
Name: Loren Haugland
------------------------------
Title: Vice President
------------------------------
AMERICAN FAMILY LIFE INSURANCE COMPANY
By: /s/ Phillip Hannifan
------------------------------
Name: Phillip Hannifan
------------------------------
Title: Investment Director
------------------------------
TMG LIFE INSURANCE COMPANY
By: /s/ Constance L. Keller
------------------------------
Name: Constance L. Keller
------------------------------
Title: Director, Private Placements
------------------------------
By: /s/ Michael J. Steppe
------------------------------
Name: Michael J. Steppe
------------------------------
Title: Senior Vice President
------------------------------
S-6
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY $15,500,000
Register Notes in the name of: Massachusetts Mutual Life Insurance Company
(1) All payments on account of the Note shall be made by crediting in the form
of bank wire transfer of Federal or other immediately available funds
(identifying each payment as AptarGroup, Inc., 6.62% Series 1999-A Senior
Notes due 2011, interest and principal) to:
Citibank, N.A.
111 Wall Street
New York, NY 10043
ABA No. 021000089
For MassMutual Long-Term Pool
Account No. 4067-3488
Re: AptarGroup, Inc. 6.62% Series 1999-A Senior Notes due 2011, principal
and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of Massachusetts Mutual Life Insurance Company at (413) 744-3561
(2) All notices and communications (except notices with respect to payments)
to:
Massachusetts Mutual Life
Insurance Company
1295 State Street
Springfield, MA 01111
Attn: Securities Investment Division
(3) Notices with respect to payments:
Massachusetts Mutual Life
Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Securities Custody
and Collection Department F 381
Tax ID #04-1590850
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY $2,500,000
Register Notes in the name of: Massachusetts Mutual Life Insurance Company
(1) All payments on account of the Note shall be made by crediting in the form
of bank wire transfer of Federal or other immediately available funds
(identifying each payment as AptarGroup, Inc., 6.62% Series 1999-A Senior
Notes due 2011, interest and principal) to:
Chase Manhattan Bank, N.A.
4 Chase MetroTech Center
New York, NY 10081
ABA No. 021000021
For MassMutual Pension Management
Account No. 910-2594018
Re: AptarGroup, Inc. 6.62% Series 1999-A Senior Notes due 2011, principal
and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of Massachusetts Mutual Life Insurance Company at (413) 744-3561
(2) All notices and communications (except notices with respect to payments)
to:
Massachusetts Mutual Life
Insurance Company
1295 State Street
Springfield, MA 01111
Attn: Securities Investment Division
(3) Notices with respect to payments:
Massachusetts Mutual Life
Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Securities Custody
and Collection Department F 381
Tax ID #04-1590850
2
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
C.M. LIFE INSURANCE COMPANY $2,000,000
Register Notes in the name of: C.M. Life Insurance Company
(1) All payments on account of the Note shall be made by crediting in the form
of bank wire transfer of Federal or other immediately available funds
(identifying each payment as AptarGroup, Inc., 6.62% Series 1999-A Senior
Notes due 2011, interest and principal) to:
Citibank, N.A.
111 Wall Street
New York, NY 10043
ABA No. 021000089
For Segment 43 - Universal Life
Account No. 4068-6561
Re: AptarGroup, Inc. 6.62% Series 1999-A Senior Notes due 2011, principal
and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of Massachusetts Mutual Life Insurance Company at (413) 744-3561
(2) All notices and communications (except notices with respect to payments)
to:
C.M. Life Insurance Company
c/o Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
Attn: Securities Investment Division
(3) Notices with respect to payments:
C.M. Life Insurance Company
c/o Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Securities Custody
and Collection Department F 381
Tax ID #06-1041383
3
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
GENERAL AMERICAN LIFE INSURANCE COMPANY $3,000,000
Register Notes in the name of: GALICO
(1) Wire transfer information:
General American Life Insurance Company
c/o The Bank of New York
ABA #021000018 BNF: IOC566
Attn: P&I Department
(2) Notices regarding payments:
Conning Asset Management GALICO
Attn: Investment Accounting AND c/o The Bank of New York
P.O. Box 418 P.O. Box 19266
St. Louis, MO 63166 Newark, NJ 07195
(3) All other notices:
Conning Asset Management GALICO
Attn: Securities Division AND c/o The Bank of New York
P.O. Box 396 P.O. Box 19266
St. Louis, MO 63166 Newark, NJ 07195
(4) Deliver original Note to:
The Bank of New York
Attn: Free Receive
One Wall Street, 5th Floor
New York, NY 10004
For the account of General American Life
Insurance Company, General Account #128800
If there is a problem, call Lucille Del Terzo at The Bank of New York (212)
495-2404.
Tax I.D. #43-0285930
4
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
GENERAL AMERICAN LIFE INSURANCE COMPANY, $1,000,000
SEPARATE ACCOUNT 9
Register Notes in the name of: General American Life Insurance Company, Separate
Account 9
(1) Wire transfer information:
General American Life Insurance Company
c/o The Bank of New York
ABA #021000018 BNF: IOC566
Attn: P&I Department
(2) Notices regarding payments:
Conning Asset Management General American Life Insurance Company
Attn: Investment Accounting AND c/o The Bank of New York
P.O. Box 418 P.O. Box 19266
St. Louis, MO 63166 Newark, NJ 07195
(3) All other notices:
Conning Asset Management General American Life Insurance Company
Attn: Securities Division AND c/o The Bank of New York
P.O. Box 396 P.O. Box 19266
St. Louis, MO 63166 Newark, NJ 07195
(4) Deliver original Note to:
The Bank of New York
Attn: Free Receive
One Wall Street, 5th Floor
New York, NY 10004
For the account of General American Life
Insurance Company, Separate Account 9, Account #127703
If there is a problem, call Lucille Del Terzo at The Bank of New York (212)
495-2404.
Tax I.D. #43-0285930
5
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
RGA REINSURANCE COMPANY $5,000,000
Register Notes in the name of: RGA Reinsurance Company
(1) Wire transfer information:
General American Life Insurance Company
c/o The Bank of New York
ABA #021000018 BNF: IOC566
Attn: P&I Department
(2) Notices regarding payments:
Conning Asset Management General American Life Insurance Company
Attn: Investment Accounting AND c/o The Bank of New York
P.O. Box 418 P.O. Box 19266
St. Louis, MO 63166 Newark, NJ 07195
(3) All other notices:
Conning Asset Management General American Life Insurance Company
Attn: Securities Division AND c/o The Bank of New York
P.O. Box 396 P.O. Box 19266
St. Louis, MO 63166 Newark, NJ 07195
(4) Deliver original Note to:
The Bank of New York
Attn: Free Receive
One Wall Street, 5th Floor
New York, NY 10004
For the account of RGA Reinsurance Company, Account #127709
If there is a problem, call Lucille Del Terzo at The Bank of New York (212)
495-2404.
Tax I.D. #43-1235868
6
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
COVA FINANCIAL LIFE INSURANCE COMPANY $1,000,000
Register Notes in the name of: ELL & CO.
(1) Wire transfer information:
NORTHERN CHGO/Trust
ABA #071000152
Credit wire account #5186041000
Account 26-88761/COVA Financial
(2) Notices regarding payments:
Conning Asset Management COVA Financial Life Insurance Co.
Attn: Investment Accounting AND c/o The Northern Trust Company
P.O. Box 418 P.O. Box 92996
St. Louis, MO 63166 Chicago, IL 60675
(3) All other notices:
Conning Asset Management COVA Financial Life Insurance Co.
Attn: Securities Division AND c/o The Northern Trust Company
P.O. Box 396 P.O. Box 92996
St. Louis, MO 63166 Chicago, IL 60675
(4) Deliver original Note to:
The Northern Trust Company
40 Broad Street, 8th Floor
New York, NY 10004
For the account of COVA Financial Life
Insurance Company, Account #26-88761
Tax I.D. #36-6412623
7
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
COVA FINANCIAL SERVICES LIFE INSURANCE COMPANY $6,000,000
Register Notes in the name of: ELL & CO.
(1) Wire transfer information:
NORTHERN CHGO/Trust
ABA #071000152
Credit wire account #5186041000
Account 26-02881/COVA Financial
(2) Notices regarding payments:
Conning Asset Management COVA Financial Services Life Insurance Co.
Attn: Investment Accounting AND c/o The Northern Trust Company
P.O. Box 418 P.O. Box 92996
St. Louis, MO 63166 Chicago, IL 60675
(3) All other notices:
Conning Asset Management COVA Financial Services Life Insurance Co.
Attn: Securities Division AND c/o The Northern Trust Company
P.O. Box 396 P.O. Box 92996
St. Louis, MO 63166 Chicago, IL 60675
(4) Deliver original Note to:
The Northern Trust Company
40 Broad Street, 8th Floor
New York, NY 10004
For the account of COVA Financial Services
Life Insurance Company, Account #26-02881
Tax I.D. #36-6412623
8
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
WASHINGTON UNIVERSITY $2,000,000
Register Notes in the name of: PITT & CO.
(1) Wire transfer information:
Bankers Trust Company
ABA 221 001 033
For account 99-401-399
Reference: 038336 A@ 2, Washington University,
for Account 190146
Attn: Veatrice Parker/Asset Collection
(2) Notices regarding payments:
Conning Asset Management Joel Collier
Attn: Investment Accounting AND BT Services Tennessee, Inc.
P.O. Box 418 648 Grassmere Park Rd.
St. Louis, MO 63166 Nashville, TN 37211
(3) All other notices:
Conning Asset Management Joel Collier
Attn: Securities Division AND BT Services Tennessee, Inc.
P.O. Box 396 648 Grassmere Park Rd.
St. Louis, MO 63166 Nashville, TN 37211
(4) Deliver original Note to:
Bankers Trust Company
Attn: Receive Cage
16 Wall Street, 4th Floor, Window 44
New York, NY 10015
For the account of Washington University, Account 190146
Tax I.D. #13-6064419
9
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
SUN LIFE ASSURANCE COMPANY OF CANADA $6,000,000
4,000,000
2,500,000
2,000,000
500,000
1,000,000
1,000,000
Register Notes in the name of: Sun Life Assurance Company of Canada
(1) Wire transfers of principal and interest with regard to the Notes:
Bank of New York
P&I Department
ABA #021-000-018
Account #: IOC 566
Re: AptarGroup, Inc.
For Further Credit: IOC 566
All wire transfers are to be accompanied by the PPN (038336 A@ 2) and by
the source and the principal and interest application of the funds.
(2) Written notice of each routine payment and any audit confirmation is to be
sent to:
Sun Life Assurance Company of Canada
Three Sun Life Executive Park
Wellesley Hills, MA 02481
Attention: Manager, Securities Accounting, SC 3327
(3) All other notices and correspondence, including notices of non-routine
payments, are to be forwarded to:
Sun Life Assurance Company of Canada
One Sun Life Executive Park
Wellesley Hills, MA 02481
Attention: Investment Division/Private Placements, SC 1303
10
Schedule A
(4) Deliver Notes to:
Linda R. Guillette
Sun Life Assurance Company of Canada
One Sun Life Executive Park, SC 1303
Wellesley Hills, MA 02481
Tax I.D. #38-1082080
11
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
STATE FARM LIFE INSURANCE COMPANY $15,000,000
Register Notes in the name of: State Farm Life Insurance Company
(1) Wire Transfer Instructions:
The Chase Manhattan Bank
ABA No. 021000021
SSG Private Income Processing
A/C #900-9-000200
For Credit To Account Number G 06893
Ref. PPN: 038336 A@ 2
Rate: 6.62%
Maturity Date: May 30, 2011
(2) Send notices (as well as a photocopy of the original security) to:
State Farm Life Insurance Company
Investment Dept. E-10
One State Farm Plaza
Bloomington, IL 61710
(3) Send confirms to:
State Farm Life Insurance Company
Investment Accounting Dept. D-3
One State Farm Plaza
Bloomington, IL 61710
(4) Send the original security (via registered mail) to:
Chase Manhattan Bank
Attn: Barbara Walsh
(North America Insurance)
3 Chase Metrotech Center-6th Floor
Brooklyn, New York 11245
(5) Send an additional copy of the original security plus an original set of
closing documents and two conformed copies of the Note Purchase Agreement
to:
12
Schedule A
State Farm Insurance Companies
One State Farm Plaza E-8
Bloomington, Illinois 61710
Attn: Investment Legal E-8
Larry Rottunda, Investment Counsel
Tax I.D. #37-0533090
13
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
NATIONWIDE INDEMNITY COMPANY $7,000,000
Register Notes in the name of: Nationwide Indemnity Company
(1) Wiring instructions:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Indemnity Company
Attn: P&I Department
PPN: 038336 A@ 2
AptarGroup, Inc. 6.62% Senior Notes, Series 1999-A, due May 30, 2011
(2) All notices of payment on or in respect to the security should be sent to:
Nationwide Indemnity Company Nationwide Indemnity Company
c/o The Bank of New York With a Attn: Investment Accounting
P.O. Box 19266 copy to: One Nationwide Plaza (1-32-05)
Attn: P&I Department Columbus, Ohio 43215-2220
Newark, NJ 07195
(3) Send notices and communications to:
Nationwide Indemnity Company
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
(4) Deliver original note to:
The Bank of New York
One Wall Street
3rd Floor - Window A
New York, NY 10286
F/A/O Nationwide Indemnity Company Acct. #264234
Tax I.D. #31-1399201
14
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
AMCO INSURANCE COMPANY $1,000,000
Register Notes in the name of: AMCO Insurance Company
(1) Wiring instructions:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O AMCO Insurance Company
Attn: P&I Department
PPN: 038336 A@ 2
AptarGroup, Inc. 6.62% Senior Notes, Series 1999-A, due May 30, 2011
(2) All notices of payment on or in respect to the security should be sent to:
AMCO Insurance Company AMCO Insurance Company
c/o The Bank of New York With a Attn: Investment Accounting
P.O. Box 19266 copy to: One Nationwide Plaza (1-32-05)
Attn: P&I Department Columbus, Ohio 43215-2220
Newark, NJ 07195
(3) Send notices and communications to:
AMCO Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
(4) Deliver original note to:
The Bank of New York
One Wall Street
3rd Floor - Window A
New York, NY 10286
F/A/O AMCO Insurance Co. Acct. #000611
Tax I.D. #42-6054959
15
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
NATIONWIDE LIFE INSURANCE COMPANY $2,000,000
Register Notes in the name of: Nationwide Life Insurance Company
(1) Wiring instructions:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attn: P&I Department
PPN: 038336 A@ 2
AptarGroup, Inc. 6.62% Senior Notes, Series 1999-A, due May 30, 2011
(2) All notices of payment on or in respect to the security should be sent to:
Nationwide Life Insurance Company Nationwide Life Insurance Company
c/o The Bank of New York With a Attn: Investment Accounting
P.O. Box 19266 copy to: One Nationwide Plaza (1-32-05)
Attn: P&I Department Columbus, Ohio 43215-2220
Newark, NJ 07195
(3) Send notices and communications to:
Nationwide Life Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
(4) Deliver original note to:
The Bank of New York
One Wall Street
3rd Floor - Window A
New York, NY 10286
F/A/O Nationwide Life Insurance Co. Acct. #267829
Tax I.D. #31-4156830
16
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
LUTHERAN BROTHERHOOD $10,000,000
Register Notes in the name of: Lutheran Brotherhood
(1) Payments to:
By wire:
Norwest Bank Minnesota, N.A.
ABA #091000019
For Credit to Trust Clearing Account #0000840245
Attn: Sarah Corcoran
For Credit to: Lutheran Brotherhood
Acct. No.: 12651300
By mail:
Lutheran Brotherhood
Norwest Bank Minnesota, N.A.
P.O. Box 1450
NW9919
Minneapolis, MN 55485
All payments must include the following information:
A/C Lutheran Brotherhood
Account No.: 12651300
AptarGroup, Inc. 6.62% Senior Notes, Series 1999-A, due May 30, 2011
Private Placement Number: 038336 A@ 2
Reference Purpose of Payment
Interest and/or Principal Breakdown
(2) Notices of payments and written confirmation of such wire transfers to:
Lutheran Brotherhood
Attn: Investment Accounting/Trading Administrator
625 Fourth Avenue South
10th Floor
Minneapolis, MN 55415
17
Schedule A
(3) All other communications to:
Lutheran Brotherhood
Attn: Investment Division
625 Fourth Avenue South
Minneapolis, MN 55415
Telecopier: (612) 340-5776
(4) Deliver original note to:
Norwest Bank Minnesota, N.A.
733 Marquette Avenue
Attn: Client Services - Sarah Corcoran
5th Floor, Window 1
Investors Building
Minneapolis, MN 55479-0051
Telecopier: (612) 667-0550
With a copy to the Lutheran Brotherhood in-house attorney.
Tax I.D. #41-0385700
18
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
MUTUAL TRUST LIFE INSURANCE COMPANY $2,000,000
Register Notes in the name of: ELL & CO.
(1) All payments on account of the Notes shall be made by wire transfer of
immediately available funds to:
The Northern Chgo/Trust
ABA #071-000-152
For credit to: Account Number 5186041000
For further credit to: Mutual Trust Life Insurance Company
Account Number: 26-00621
Attn: Income Collections
Reference sufficient information to identify the source and application of
such funds.
(2) All notices and statements should be sent to the following address:
Mutual Trust Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
(3) Deliver original Note to:
Northern Trust Company of New York
40 Broad Street, 8th Floor
New York, NY 10004
Attn: Settlements for Account #26-00621,
Mutual Trust Life Ins. Company
Tax I.D. #36-1516780
19
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
NATIONAL TRAVELERS LIFE COMPANY $1,000,000
Register Notes in the name of: VAR & CO.
(1) All payments on account of the Notes shall be made by wire transfer of
immediately available funds to:
U.S. Bank, N.A.
Minneapolis, MN
ABA #091-000-022
For credit to: U.S. Bank Trust, N.A.
Account Number: 180121167365,
TSU: 47300050
For further credit to: National Travelers Life Company
Account Number: 12609110
Attn: Juleah Foss (651) 244-5958
Reference sufficient information to identify the source and application of
such funds.
(2) All notices and statements should be sent to the following address:
National Travelers Life Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
(3) Deliver original Note to:
U.S. Bank Trust, N.A.
180 East Fifth Street
St. Paul, MN 55101
Attn: Connie Kemp (SPFT 0901)
Tax I.D. #42-0432940
20
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
GUARANTEE RESERVE LIFE INSURANCE COMPANY $1,000,000
Register Notes in the name of: GANT & CO.
(1) All payments on account of the Notes shall be made by wire transfer of
immediately available funds to:
Mercantile National Bank of Indiana
Hammond, IN
ABA #071-912-813
For credit to: Guarantee Reserve Life Insurance Company
Attn: Trust Department, Geneva DeVine
Account Number: 287000
Reference sufficient information to identify the source and application of
such funds.
(2) All notices and statements should be sent to the following address:
Guarantee Reserve Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
(3) Deliver original Note to:
Mercantile National Bank of Indiana
Ref: Guarantee Reserve Life Insurance Company
5243 Hohman Avenue
Hammond, IN 46320
Tax I.D. #35-0815760
21
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
PIONEER MUTUAL LIFE INSURANCE COMPANY $1,000,000
Register Notes in the name of: POLLY & CO.
(1) All payments on account of the Notes shall be made by wire transfer of
immediately available funds to:
Polly & Co.
c/o The Bank of New York
ABA #021-000-018 BNF: IOC566
Attn: P&I Dept., Robert Hoover
Reference sufficient information to identify the source and application of
such funds.
(2) All notices and statements should be sent to the following address:
Pioneer Mutual Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
(3) Deliver original Note to:
The Bank of New York
One Wall Street - 3rd Floor - Window A
New York, NY 10005
Account: NCT & Co. Fargo, #270576
Attention: Christine Burke
Telephone: (212) 635-4549
With reference to "FREE DELIVERY"
Tax I.D. #45-0220640
22
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
THE CATHOLIC AID ASSOCIATION $1,000,000
Register Notes in the name of: VAR & CO.
(1) All payments on account of the Notes shall be made by wire transfer of
immediately available funds to:
U.S. Bank, N.A.
Minneapolis, MN
ABA #091-000-022
For credit to: U.S. Bank Trust, N.A.
Account Number: 180121167365,
TSU: 47300050
For further credit to: Catholic Aid Association (The)
Account Number: 12614950
Attn: Juleah Foss (651) 244-5958
Reference sufficient information to identify the source and application of
such funds.
(2) All notices and statements should be sent to the following address:
Catholic Aid Association (The)
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
(3) Deliver original Note to:
U.S. Bank Trust, N.A.
180 East Fifth Street
St. Paul, MN 55101
Attn: Marilyn Goldberg (SPFT 0901)
Tax I.D. #41-0182070
23
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
GREAT WESTERN INSURANCE COMPANY $500,000
Register Notes in the name of: Zions First National Bank for Great Western
Insurance Company
(1) All payments on account of the Notes shall be made by wire transfer of
immediately available funds to:
Zions First National Bank
Salt Lake City, UT
ABA #124-0000-54
For credit to: Great Western Insurance Company, Account Number: 80-
00005-2
Reference sufficient information to identify the source and application of
such funds.
Any checks (in lieu of wire transfer) should be sent to the following
address:
Zions First National - Bank Trust Department
P.O. Box 30880
Salt Lake City, UT 84130
Ref: Great Western Insurance Company
(2) All notices and statements should be sent to the following address:
Great Western Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
(3) Deliver original Note to:
Great Western Insurance Company
Attn: Fred Meese
3434 Washington Boulevard
Ogden, UT 84401
Tax I.D. #87-0395954
24
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
PROTECTED HOME MUTUAL LIFE INSURANCE COMPANY $500,000
Register Notes in the name of: Norwest Bank MN as Custodian for Protected Home
Mutual Life Insurance Co.
(1) All payments on account of the Notes shall be made by wire transfer of
immediately available funds to:
Norwest Bank Minnesota, N.A.
ABA No. 091-000-019
BNF=Norwest Trust Clearing Mpls
BNFA=0840245
OBI=FFC to: Norwest Client Acct. No. 13371700
Norwest Client Account Name: Protected Home Mutual Life Insurance Company
Reference sufficient information to identify the source and application of
such funds.
(2) All notices and statements should be sent to the following address:
Protected Home Mutual Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
(3) Deliver original Note to:
Norwest Bank MN, N.A.
733 Marquette Ave. Lower Level 1
Security Control and Transfer
Minneapolis, MN 55479-0051
Attn: Terrie Loosen (612) 667-0540
Tax I.D. #25-0740310
25
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
AMERICAN FAMILY LIFE INSURANCE COMPANY $5,000,000
Register Notes in the name of: BAND & CO.
(1) All payments in respect of the Notes to be by bank wire transfer of Federal
or other immediately available funds to:
Firstar Bank Milwaukee, N.A.
Account of Firstar Trust Company
ABA #075000022
For Credit to Account #112-950-027
Trust Account 000018012500 for AFLIC-Traditional Portfolio
Attn: Accounting Department
Each such wire transfer shall set forth the name of the Company, the full
title (including the coupon rate and final maturity date) of the Notes, and
the due date and application among principal and interest of the payment
-------------------------------------------------------
being made.
----------
(2) All notices and communications, including notices with respect to payments
and written confirmation of each such payment as well as quarterly and
annual financial statements to:
American Family Life Insurance Company
6000 American Parkway
Madison, WI 53783-0001
Attn: Investment Division-Private Placements
(3) Delivery of Notes to:
Firstar Bank Milwaukee
Robin Brahm, Manager Services
11th Floor, (414) 765-5177
777 East Wisconsin Avenue
Milwaukee, WI 53202
A specimen copy of each Note to be sent to American Family Life Insurance
Company
Tax I.D. #39-6040365
26
Schedule A
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- ----------------------------- ---------------------
TMG LIFE INSURANCE COMPANY $5,000,000
Register Notes in the name of: TMG Life Insurance Company
(1) All payments on account of the Notes shall be made by wire transfer of
immediately available funds to:
ABA Routing Transit Number: Norwest Bank Minnesota,
*(field 3400) 091000019
Beneficiary Account Number: 0000840245 (Must be 10 digits in length)
Beneficiary Account Name: Trust Wire Clearing (Must be on line 2)
*(field 4200)
OBI FFC: I.C. 12250600 AptarGroup, Inc.
PPN: 038336 A@ 2
*(field 6000) P= I=
End Balance=
*Federal Reserve Field Tag Numbers
(2) All notices in respect of payment shall be delivered to:
TMG Life Insurance Company
c/o The Mutual Group (U.S.), Inc.
Attn: Tamie Greenwood
401 North Executive Drive, Suite 300
Brookfield, WI 53008-0503
Telephone: (414) 641-4027
Facsimile: (414) 641-4055
(3) All other communications shall be delivered to:
TMG Life Insurance Company
c/o The Mutual Group (U.S.), Inc.
Attn: Connie Keller
401 North Executive Drive, Suite 300
Brookfield, WI 53008-0503
Telephone: (414) 641-4027
Facsimile: (414) 641-4055
Tax I.D. #45-0208990
27
Schedule A
SCHEDULE B
----------
DEFINED TERMS
-------------
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"Adjusted Consolidated Net Worth" means, as of any date, Consolidated
Net Worth on such date, but excluding the cumulative amount reflected in
"accumulated other comprehensive income" reported in the consolidated total
stockholders' equity of the Company and its Restricted Subsidiaries as
determined in accordance with GAAP.
"Affiliate" means, at any time, and with respect to any Person, (a)
any other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, and (b) any Person beneficially owning or holding, directly
or indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary or any corporation of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly,
10% or more of any class of voting or equity interests. As used in this
definition, "Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an "Affiliate"
is a reference to an Affiliate of the Company.
"Business Day" means (a) for the purposes of Section 8.6 only, any day
other than a Saturday, a Sunday or a day on which commercial banks in New York
City are required or authorized to be closed, and (b) for the purposes of any
other provision of this Agreement, any day other than a Saturday, a Sunday or a
day on which commercial banks in Chicago, Illinois or New York City are required
or authorized to be closed.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the rules and regulations promulgated thereunder from time to time.
"Company" means AptarGroup, Inc., a Delaware corporation.
"Confidential Information" is defined in Section 20.
"Consolidated Indebtedness" means, as of any date, Indebtedness of the
Company and its Restricted Subsidiaries as of such date determined on a
consolidated basis in accordance with GAAP.
Schedule B
"Consolidated Net Worth" means, as of any date, consolidated total
stockholders' equity of the Company and its Restricted Subsidiaries on such
date, determined in accordance with GAAP, less the amount by which outstanding
Restricted Investments on such date exceed 25% of consolidated total
stockholders equity of the Company and its Restricted Subsidiaries determined in
accordance with GAAP.
"Consolidated Total Assets" means, as of any date, the assets and
properties of the Company and its Restricted Subsidiaries as of such date
determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Capitalization" means, as of any date, the sum of
Consolidated Indebtedness and Consolidated Net Worth as of such date.
"Default" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"Default Rate" means that rate of interest that is the greater of (i)
2% per annum above the rate of interest stated in clause (a) of the first
paragraph of the Notes or (ii) 2% over the rate of interest publicly announced
by Bank of America in Chicago, Illinois as its "base" or "prime" rate.
"Disposition" is defined in Section 10.4.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States of America.
2
Schedule B
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or other political
subdivision thereof, or
(ii) any jurisdiction in which the Company or any Subsidiary
conducts all or any part of its business, or which asserts
jurisdiction over any properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory
or administrative functions of, or pertaining to, any such government.
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such
indebtedness or obligation, or (ii) to maintain any working capital or
other balance sheet condition or any income statement condition of any
other Person or otherwise to advance or make available funds for the
purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such indebtedness or
obligation of the ability of any other Person to make payment of the
indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation
against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration
3
Schedule B
of which is or shall be restricted, prohibited or penalized by any applicable
law (including, without limitation, asbestos, urea formaldehyde foam insulation
and polychlorinated biphenyls).
"holder" means, with respect to any Note, the Person in whose name
such Note is registered in the register maintained by the Company pursuant to
Section 13.1.
"Indebtedness" with respect to any Person means, at any time, without
duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable and other accrued
liabilities arising in the ordinary course of business, but including all
liabilities created or arising under any conditional sale or other title
retention agreement with respect to any such property);
(c) all liabilities appearing on its balance sheet in accordance with
GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has assumed
or otherwise become liable for such liabilities); and
(e) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (d) hereof.
Indebtedness of any Person shall include all obligations of such Person of the
character described in clauses (a) through (e) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP.
"Institutional Investor" means (a) any original purchaser of a Note,
(b) any holder of a Note holding more than $2,000,000 in aggregate principal
amount of the Notes, and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"Investments" means all investments made, in cash or by delivery of
property, directly or indirectly, by any Person, in any other Person or
property, whether by acquisition of shares of capital stock, indebtedness or
other obligations or securities or by loan, advance, capital contribution or
otherwise.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person
4
Schedule B
(including in the case of stock, stockholder agreements, voting trust agreements
and all similar arrangements).
"Make-Whole Amount" is defined in Section 8.6.
"Material" means material in relation to the business, operations,
affairs, financial condition, assets or properties of the Company and its
Restricted Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Restricted Subsidiaries taken as a whole, or (b) the ability of
the Company to perform its obligations under this Agreement and the Notes, or
(c) the validity or enforceability of this Agreement or the Notes.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"Notes" is defined in Section 1.1.
"Officer's Certificate" means a certificate of a Senior Financial
Officer or of any other officer of the Company whose responsibilities extend to
the subject matter of such certificate.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any liability.
"property" or "properties" means, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, choate
or inchoate.
"Purchaser" means each purchaser listed in Schedule A.
5
Schedule B
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Required Holders" means, at any time, the holders of more than 50% in
principal amount of the Notes at the time outstanding (exclusive of Notes then
owned by the Company or any of its Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this agreement.
"Restricted Investments" means all Investments of the Company and its
Restricted Subsidiaries, other than:
(a) property or assets to be used or consumed in the ordinary course
of business;
(b) assets arising from the sale of goods or services in the ordinary
course of business;
(c) Investments in Restricted Subsidiaries or in any Person that, as a
result thereof, becomes a Restricted Subsidiary;
(d) Investments existing as of the date of this Agreement that are
listed in the attached Schedule B-1;
(e) Investments in treasury stock;
(f) Investments in:
(i) obligations, maturing within one year from the date of
acquisition, of or fully guaranteed by (A) the United States of
America or an agency thereof or (B) Canada or a province thereof;
(ii) state or municipal securities having an effective maturity
within one year from the date of acquisition that are rated in one of
the top two rating classifications by at least one nationally
recognized rating agency;
(iii) certificates of deposit or banker's acceptances maturing
within one year from the date of acquisition of or issued by
commercial banks whose long-term unsecured debt obligations (or the
long-term unsecured debt obligations of the bank holding company
owning all of the capital stock of such bank) are rated in one of the
top two rating classifications by at least one nationally recognized
rating agency;
6
Schedule B
(iv) commercial paper maturing within 270 days from the date of
issuance that, at the time of acquisition, is rated in one of the top
two rating classifications by at least one nationally recognized
rating agency;
(v) repurchase agreements, fully collateralized with obligations
of the type described in clause (i), with a bank satisfying the
requirements of clause (iii);
(vi) money market instrument programs that are properly
classified as current assets in accordance with GAAP; and
(g) loans or advances made in the ordinary course of business to
officers and employees (including moving expenses related to relocation)
incidental to carrying on the business of the Company or a Restricted
Subsidiary.
"Restricted Subsidiary" means any Subsidiary (a) of which at least a
majority of the voting securities are owned by the Company and/or one or more
Wholly-Owned Restricted Subsidiaries and (b) that the Company has not designated
an Unrestricted Subsidiary.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Senior Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or comptroller of the Company.
"Series 1999-A Notes" is defined in Section 1.2.
"Significant Subsidiary" means, as of the date of determination, any
Restricted Subsidiary the assets or revenues of which account for more than 10%
of Consolidated Total Assets at the end of the most recently ended fiscal period
or more than 10% of the consolidated revenues of the Company and its Restricted
Subsidiaries for the most recently completed four fiscal quarters.
"Source" is defined in Section 6.2
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any reference to
a "Subsidiary" is a reference to a Subsidiary of the Company.
7
Schedule B
"Supplement" is defined in Section 1.1.
"this Agreement" or "the Agreement" is defined in Section 17.3.
"Unrestricted Subsidiary" means any Subsidiary of the Company so
designated an Unrestricted Subsidiary by notice in writing given to the holders
of the Notes.
"Wholly-Owned Subsidiary" or "Wholly-Owned Restricted Subsidiary"
mean, at any time, any Subsidiary, or Restricted Subsidiary, as the case may be,
100% of all of the equity interests (except directors' qualifying shares) and
voting interests of which are owned by any one or more of the Company and the
Company's other Wholly-Owned Subsidiaries or Wholly-Owned Restricted
Subsidiaries, as the case may be, at such time.
8
Schedule B
SCHEDULE B-1
------------
EXISTING INVESTMENTS
Equity investments:
Seaplast (50%) 1,585,681
TES (40%) 74,923
CosterSeaquist LLC (50%) 2,624,757
---------
Subtotal 4,285,361
Other:
Fadeva loan 500,000
---------
Grand Total 4,785,361
=========
Schedule B-1
SCHEDULE 4.9
------------
CHANGES IN CORPORATE STRUCTURE
NONE
Schedule 4.9
SCHEDULE 5.3
------------
DISCLOSURE MATERIALS
NONE
Schedule 5.3
SCHEDULE 5.4
------------
SUBSIDIARIES OF THE COMPANY
AND OWNERSHIP OF SUBSIDIARY STOCK
State or Other
Jurisdiction of Percentage
Incorporation Owned
--------------- ----------
AptarGroup International L.L.C. Delaware 100%
AptarGroup Foreign Sales Corporation Barbados 100%
AptarGroup Holding S.A. France 100%
Aptar GmbH Germany 100%
Erich Pfeiffer GmbH Germany 100%
Pfeiffer Vaporisateurs France S.a.r.L. France 100%
P & S Japan Ltd. Japan 100%
Pfeiffer (U.K.) Limited United Kingdom 100%
P&P Promotion of German Manufacturing
Technologies GmbH Germany 100%
Vallis Leasobjekt Gesellschaft GmbH Germany 51%
Loeffler Beteilugungs GmbH Germany 100%
Seaplast S.A. * Spain 50%
Seaquist-Loeffler GmbH Germany 100%
Loffler Stet Spol. S.R.O. Czech Republic 100%
SeaquistPerfect Dispensing GmbH Germany 100%
Valois Deutschland GmbH Germany 100%
AptarGroup S.A. France 100%
Aptar South Europe SARL France 100%
Novares S.p.A. Italy 100%
SAR S.p.A Italy 100%
SAR France SCA France 100%
AptarGroup SAR Finance Unlimited Ireland 100%
Sar GmbH Germany 100%
SAR (U.K.) Limited United Kingdom 100%
Tes S.p.A. * Italy 35%
Caideil M.P. Teoranta Ireland 100%
General Plastics S.A. France 100%
Graphocolor France 60%
Moulage Plastique de Normandie S.A. France 100%
Perfect-Valois U.K. Limited United Kingdom 100%
Seaquist-Loeffler Limited United Kingdom 100%
Valois S.A France 100%
Valois Dispray S.A. Switzerland 100%
Valois Espana S.A. Spain 100%
Valois Italiana S.r.l. Italy 100%
Inairic S.A. Argentina 100%
Sar Dispensing Systems Ltd. Hong Kong 100%
SAR Do Brasil Ltda. Brazil 100%
Schedule 5.4
SCHEDULE 5.4
------------
SUBSIDIARIES OF THE COMPANY
AND OWNERSHIP OF SUBSIDIARY STOCK
Seaquist Canada Ltd. Canada 100%
Seaquist Finance Unlimited Ireland 100%
Seaquist-Valois Australia Pty. Ltd. Australia 100%
Seaquist-Valois do Brasil Ltda. Brazil 100%
Seaquist-Valois Japan, Inc. Japan 100%
Aptar Suzhou Dispensing Ltd. P.R. China 100%
CosterSeaquist L.L.C.* Illinois 50%
Emson Research, Inc. Connecticut 100%
Emson Europe Ltd. United Kingdon 100%
Emson Foreign Sales Corporation U.S. Virgin Islands 100%
Emson, Inc. Connecticut 100%
Emson Ventures, Inc. Connecticut 100%
Emson Ventures II, Inc. Connecticut 100%
P.T. Emson Ongko Indonesia Indonesia 100%
Emson Ventures III, Inc. Connecticut 100%
Emson Spraytech India Private Ltd. India 51%
Emson Ventures IV, Inc. Connecticut 100%
Global Precision, Inc. Florida 100%
Liquid Molding Systems, Inc. Delaware 100%
Philson, Inc. Connecticut 100%
Pfeiffer of America, Inc. Delaware 100%
P Merger Corporation Connecticut 100%
R.P.M. Manufacturing Company Connecticut 100%
SAR U.S.A. Inc. Delaware 100%
Seaquist Closures L.L.C. Delaware 100%
Seaquist Closures Foreign, Inc. Delaware 100%
Seaquist de Mexico, S.A. de C.V. Mexico 75%
SeaquistPerfect Dispensing L.L.C. Delaware 100%
SeaquistPerfect Dispensing Foreign, Inc. Delaware 100%
Valois of America, Inc. Connecticut 100%
* Indicates affiliate of the Company
See the FORM 10-K for the fiscal year ended December 31, 1998 for the executive
officers and the PROXY STATEMENT dated April 7, 1999 for directors.
Schedule 5.4
SCHEDULE 5.5
------------
FINANCIAL STATEMENTS
AptarGroup, Inc. 10-Q for the quarter ended March 31, 1999
Schedule 5.5
SCHEDULE 5.8
------------
CERTAIN LITIGATION
None
Schedule 5.8
SCHEDULE 5.11
-------------
LICENSES, PERMITS, ETC.
None
Schedule 5.11
SCHEDULE 5.14
-------------
USE OF PROCEEDS
Repay a portion of indebtedness under Credit Agreement dated as of February 12,
1999 between AptarGroup, Inc. and Bank of America National Trust and Savings
Association
$107,000,000
============
Schedule 5.14
SCHEDULE 5.15
-------------
EXISTING INDEBTEDNESS
Description Secured by Rate - fixed Interest Issue Maturity
Bank name of Debt Assets or variable? Rate Date Date
--------- ----------- ---------- ------------ -------- ----- --------
ST NOTES PAYABLE
AptarGroup ABN Amro Bank No V 5.35% 01/11/99 04/11/99
AptarGroup Society General Bank No V 5.60% 03/31/99 04/01/99
AptarGroup WLB Bank No V 5.17% 03/30/99 04/06/99
AptarGroup BOA Bank No V 5.42% 2/19/99 04/30/99
China IBPS Bank No V 5.90% 7/16/98 7/15/99
China Bank of China Bank No V 5.77% 7/14/98 7/13/99
China Bank of China Bank No V 6.52% 7/24/98 7/13/99
Elims Reclass ST
Emson Foreign Sales Corp. Fleet Bank No V 0.00% 03/31/99 04/05/99
Emson, Inc. Fleet Bank No V 0.00% 03/31/99 04/05/99
Emson, Inc. Fleet Bank No V 0.00% 03/31/99 04/05/99
Emson, Inc. Fleet Bank No V 0.00% 03/31/99 04/05/99
General plastics BNP Bank No V 3.88% 2/15/98 4/15/99
Novares S p A IMI-S PAOLO Bank N/A F 5.60% 2/98 8/99
Novares S p A IBM Semea Other N/A F 9.35% 10/98 12/99
S Loffler Ltd BOA Bank No V 6.00% 11/2/99 5/5/99
Sar France Groupe Soval Bank No V 10.90% 11/96 5/99
Seaquist Loffler Germany DM Eurokredit Bank No V 3.96% 2/15/99 5/15/99
Seaquist Loffler Germany DB Eurokredit Bank No V 3.96% 3/11/99 6/11/99
SV Australia ABN Amro Bank Yes V 5.35% 3/24/99 5/24/99
SV Australia ABN Amro Bank Yes V 5.38% 3/29/99 4/29/99
Valois CIN Bank No V 3.24% 3/18/99 4/1/99
Valois CIN Bank No V 3.24% 3/19/99 4/1/99
Valois CIN Bank No V 3.23% 3/22/99 4/1/99
DISCOUNTED NOTES
Valois Spain Bilbao Vizcaya Bank No V 7.00% 1/23/99 4/25/99
LC - ST LC - LT TOTAL - LC US$ - ST US$ - LT TOTAL $
------------------------------------------------------------------------------
OVERDRAFTS
0 0 0 0 0
AptarGroup 15,000,000 15,000,000 15,000,000 0 15,000,000
AptarGroup 600,000 600,000 600,000 0 600,000
AptarGroup 10,500,000 10,500,000 10,500,000 0 10,500,000
AptarGroup 123,000,000 123,000,000 123,000,000 0 123,000,000
China 828,000 828,000 100,022 0 100,022
China 15,000,000 15,000,000 1,812,000 0 1,812,000
China 10,000,000 10,000,000 1,208,000 0 1,208,000
Elims (25,000,000) (25,000,000) (25,000,000) (25,000,000)
Emson Foreign Sales Corp. 21,641 21,641 21,641 0 21,641
Emson, Inc. 1,084,366 1,084,366 1,084,366 0 1,084,366
Emson, Inc, 104,788 104,788 104,788 0 104,788
Emson, Inc. 45,608 45,608 45,608 0 45,608
General plastics 274,500 274,500 45,070 0 45,070
Novares S p A 5,000,000 5,000,000 2,781,000 0 2,781,000
Novares S p A 677,552 677,552 378,854 0 376,854
S Loffler Ltd 1,300,000 1,300,000 2,095,340 0 2,095,340
Sar France 17,573 17,573 2,885 0 2,885
Seaquist Loffler Germany 2,000,000 2,000,000 1,101,322 0 1,101,322
Seaquist Loffler Germany 2,000,000 2,000,000 1,101,322 0 1,101,322
SV Australia 100,000 100,000 63,430 0 63,430
SV Australia 100,000 100,000 63,430 0 63,430
Valois 2,800,000 2,800,000 459,726 0 459,726
Valois 9,200,000 9,200,000 1,510,530 0 1,510,530
Valois 3,500,000 3,500,000 574,658 0 574,658
---------------------------------------------
138,651,993 0 138,651,993
---------------------------------------------
DISCOUNTED NOTES
Valois Spain 1,005,662 1,005,662 6,510 0 6,510
---------------------------------------------
6,510 0 6,510
---------------------------------------------
Schedule 5.15
SCHEDULE 5.15
-------------
EXISTING INDEBTEDNESS
Description Secured by Rate--fixed Interest Issue Maturity
Bank name of Debt Assets or variable Rate Date Date
--------------- ----------- ---------- ----------- -------- -------- ---------
OVERDRAFTS
AAPTUS Other Bank No V 0.00%
Aptar GmbH West LB Bank No V 6.00% 3/31/99 4/1/99
Aptar GmbH ABN Amro Bank No V 6.00% 3/31/99 4/1/99
General Plastics Bred Bank No V 3.80% 3/31/99 3/31/99
General Plastics SG Bank No V 4.20% 3/31/99 3/31/99
Graphocolor Credit Lyonnais Bank No V 3.88% 3/31/99 4/15/99
Graphocolor BNP Bank No V 3.83% 3/31/99 4/15/99
Graphocolor SG Bank No V 0.04% 3/31/99 4/15/99
Inairic BNL Bank Y V 0.18% 2/25/99 2/25/00
Perfect-Valois UK Bank National De Paris Bank No V 7.00% 3/99 Revolving
Seaquist Japan Mitsubishi Bank Bank No V 3.50% 8/29/97 8/28/02
Seaquist Japan Mitsubishi Bank Bank No V 3.50% 6/23/98 6/2/03
Seaquist Japan BNP Bank No V 2.00% 12/18/98 12/31/05
Seaquist Japan Sumitomo Bank Bank No V 2.50% 12/18/98 12/17/03
Seaquist Loffler Germany Volksbank Bank No V 6.25% 3/30/99 4/30/99
SPD France BFCE Bank No V 3.79% 3/31/99 N/A
SPD France SG Bank No V 3.00% 3/31/99 N/A
SPD GmbH West LB Bank No V 6.00% 3/31/99 4/1/99
SPD GmbH ABN Amro Bank No V 6.00% 3/31/98 4/1/99
Valois Credit Lyonnais Bank No V 3.61% 3/31/99 N/A
Valois Credit Agricole Bank No V 3.61% 3/31/99 N/A
Valois SG Bank No V 3.61% 3/31/99 N/A
LC - ST LC - LT TOTAL - LC US$ - ST US$ - LT TOTAL $
---------- ------- ----------- ---------- -------- ----------
AAPTUS 2,326,589 2,326,589 2,326,589 0 2,326,589
Aptar GmbH 28,463 28,463 15,673 0 15,673
Aptar GmbH 3 3 2 0 2
General Plastics 339,171 339,171 55,688 0 55,688
General Plastics 1,444,434 1,444,434 237,159 0 237,159
Graphocolor 3,675,862 3,675,862 603,532 0 603,532
Graphocolor 2,456,989 2,456,989 403,408 0 403,408
Graphocolor 424,084 424,084 69,630 0 69,630
Inairic 592,253 592,253 592,549 0 592,549
Perfect-Valois UK 497,073 497,073 801,182 0 801,182
Seaquist Japan 13,673,000 13,673,000 115,045 0 115,045
Seaquist Japan 4,170,000 4,170,000 35,086 0 35,086
Seaquist Japan 306,262,705 306,262,705 2,576,894 0 2,576,894
Seaquist Japan 46,668,000 46,668,000 392,665 0 392,665
Seaquist Loffler Germany 729,348 729,348 401,623 0 401,623
SPD France 177,671 177,671 29,171 0 29,171
SPD France 230,157 230,157 37,789 0 37,789
SPD GmbH 846,377 846,377 466,067 0 466,067
SPD GmbH 1,440,778 1,440,778 793,380 0 793,380
Valois 246,688 246,688 40,503 0 40,503
Valois 2,008,643 2,008,643 329,795 0 329,795
Valois 468,959 468,959 76,997 0 76,997
------------------------------------------
TOTAL OVERDRAFTS 10,400,429 0 10,400,429
------------------------------------------
Schedule 5.15
SCHEDULE 5.15
-------------
EXISTING INDEBTEDNESS
Description Secured by Rate - fixed Interest Issue Maturity
Bank name of Debt Assets or variable? Rate Date Date LC - ST LC - LT
--------- ------- ------ ----------- ---- ---- ---- ------- -------
NOTES PAYABLE
AptarGroup Nationwide Life Other No F 7.08% 10/1/95 9/30/05 3,571,429 21,428,571
AptarGroup Reclass ST Other No 4/29/01 25,000,000
Enson, Inc. Bank Term Loan Bank No V 6.53% 4/15/98 5/1/03 800,000 2,466,667
Enson, Inc. Revolver Bank No V 5.56% 4/15/98 5/1/01 0 7,700,000
Enson, Inc. Revolver Bank No V 5.46% 4/15/98 5/1/01 0 10,000,000
Enson India Pavron Loan No V 0.00% 0 2,022,022
General Plastics BNP Bank No F 5.11% 8/98 7/03 372,739 1,389,120
General Plastics Bred Bank No F 4.90% 8/97 7/01 100,668 142,115
General Plastics Bred Bank No F 4.90% 8/97 7/01 251,670 355,287
General Plastics Credipar Bank No F 11.08% 11/95 10/99 14,674 0
General Plastics SNVB Codevi Bank No F 6.10% 7/96 7/00 257,500 128,750
General Plastics SNVB Codevi Bank No V 5.60% 8/96 8/00 198,750 99,375
Graphocolor Agency Bassin Other No F 0.50% 10/16/97 10/16/08 42,000 378,000
Graphocolor Agency Bassin Other No F 0.50% 3/26/91 3/16/00 0 106,400
Graphocolor Agency Bassin Other No F 0.50% 1/16/97 1/16/00 0 1,052,800
Graphocolor SDR Other No F 7.20% 1/1/90 1/1/99 190,214 0
Graphocolor CMT Other No V 3.80% 8/20/96 8/20/03 1,232,145 6,160,705
Graphocolor CMT Other No V 3.80% 8/20/96 8/20/03 375,000 1,875,000
MPN Credit General Bank F 0.00% 0 0 0 0
Industriel
MPN Societe General Bank No F 4.95% 8/98 1/00 245,725 646,442
MPN Societe General Bank Yes F 6.10% 6/96 5/00 88,043 109,721
MPN CIC Bank No F 5.40% 8/97 7/01 120,863 171,622
MPN Societe General Bank No V 5.14% 8/97 7/01 276,538 391,488
SAR Loan L Other No F 3.69% 1/13/95 7/29/09 0 1,392,973
SAR Loan I Other No F 0.00% 7/97 1/99 0 0
Seaquist de
Mexico Other Bank Yes F 0.00% 0 0 213,696 136,848
Seaquist
Loffler Germany GEFA 83165 Other No F 4.94% 3/1/97 1/1/99 0 0
Seaquist
Loffler Germany GEFA 83166 Other No F 4.74% 4/1/97 2/1/99 0 0
Seaquist
Loffler Germany GEFA 83167 Other No F 5.70% 12/1/97 10/1/99 101,500 0
Seaquist
Loffler Germany GEFA 83153 Other No F 5.79% 5/1/98 3/1/00 99,000 22,000
Seaquist
Loffler Germany GEFA 83154 Other No F 5.53% 5/1/98 3/1/00 174,150 77,400
Seaquist
Loffler Germany GEFA 83155 Other No F 5.53% 6/1/98 4/1/00 124,470 41,490
Seaquist
Loffler Germany GEFA 83152 Other No F 5.24% 10/1/97 8/1/99 27,500 0
Seaquist
Loffler Germany Loeffler Loan Other No F 4.90% 7/31/98 9/30/04 623,679 6,082,522
Valois ANVAR Bank No F 0.00% 9/4/92 6/30/00 200,000 200,000
Valois Participation Other No F 6.00% 4/1/93 4/1/03 5,406,901 28,744,466
Valois Italiana Mediocredito Bank No V 1.20% 12/31/98 6/30/08 40,000 360,786
Valois of
America CDA Other Yes F 4.50% 11/28/95 6/1/95 91,808 605,240
TOTAL - LC US$ - ST US$ - LT TOTAL $
-------------------------------------------------
NOTES PAYABLE
AptarGroup 25,000,000 3,571,429 21,428,571 25,000,000
AptarGroup 25,000,000 0 25,000,000 25,000,000
Enson, Inc. 3,266,661 800,000 2,466,667 3,266,667
Enson, Inc. 7,700,000 0 7,700,000 7,700,000
Enson, Inc. 10,000,000 0 10,000,000 10,000,000
Enson India 2,022,022 0 47,659 47,659
General Plastics 1,761,859 61,199 228,077 289,276
General Plastics 242,783 16,528 23,334 39,852
General Plastics 606,957 41,321 58,334 99,655
General Plastics 14,674 2,409 0 2,409
General Plastics 386,250 42,278 21,139 63,418
General Plastics 298,125 32,632 16,316 48,949
Graphocolor 420,000 6,896 62,063 68,959
Graphocolor 106,400 0 17,470 17,470
Graphocolor 1,052,800 0 172,857 172,857
Graphocolor 190,214 31,231 0 31,231
Graphocolor 7,392,850 202,303 1,011,514 1,213,817
Graphocolor 2,250,000 61,571 307,853 369,423
MPN 0 0 0 0
MPN 892,167 40,345 106,138 146,483
MPN 197,764 14,456 18,015 32,470
MPN 292,485 19,844 28,178 48,023
MPN 668,026 45,404 64,278 109,682
SAR 1,392,973 0 774,772 774,772
SAR 0 0 0 0
Seaquist de
Mexico 410,544 28,738 14,369 43,107
Seaquist
Loffler Germany 0 0 0 0
Seaquist
Loffler Germany 0 0 0 0
Seaquist
Loffler Germany 101,500 55,892 0 55,892
Seaquist
Loffler Germany 121,000 54,515 12,115 66,630
Seaquist
Loffler Germany 251,550 95,898 42,621 138,519
Seaquist
Loffler Germany 165,960 68,541 22,847 91,388
Seaquist
Loffler Germany 27,500 15,143 0 15,143
Seaquist
Loffler Germany 6,706,201 343,436 3,349,408 3,692,843
Valois 400,000 32,838 32,838 65,675
Valois 34,151,367 887,748 4,719,496 5,607,245
Valois Italiana 400,786 22,248 200,669 222,917
Valois of
America 697,048 91,808 605,240 697,048
ROUNDING (1) (1)
--------------------------------------
TOTAL NOTES PAYABLE 6,686,652 78,552,836 85,239,487
--------------------------------------
Schedule 5.15
SCHEDULE 5.15
EXISTING INDEBTEDNESS
Bank name Description Secured by Rate - fixed Interest Issue Maturity LC - ST
--------- of Debt Assets or Variable? Rate Date Date -------
------- ------ ----------- ---- ---- ----
MORTGAGES PAYABLE
General Plastics Credit Agricole Bank Yes F 5.90% 1/97 12/00 260,718
General Plastics Societe General Bank Yes V 4.65% 4/98 1/02 225,000
General Plastics Credit Agricole Bank Yes F 5.05% 8/98 7/02 153,886
General Plastics SNVB Bank Yes F 4.80% 8/98 7/02 199,094
General Plastics SNVB Bank Yes F 5.25% 8/98 7/02 188,740
General Plastics Bred Bank Yes F 4.80% 10/98 7/02 177,350
General Plastics BNP Bank Yes F 4.09% 3/99 9/03 91,066
General Plastics BNP Bank Yes F 4.09% 3/99 2/03 772,842
Novares S.p.A. Loan BNL Other No F 2.10% 12/22/98 6/30/08 269,260
Pfeiffer GmbH Commerzbank Bank Yes F 4.70% 06/96 3/99 0
Pfeiffer GmbH West LB Bank Yes F 5.00% 06/96 12/01 161,515
Pfeiffer GmbH Sparkasse Bank No F 4.95% 3/98 12/02 1,000,000
Pfeiffer GmbH BW Bank Bank No F 4.90% 11/97 12/02 1,000,000
Pfeiffer GmbH BW Bank Bank No F 5.00% 06/96 12/99 625,000
Sar Loan Other Yes F 5.25% 12/31/94 6/30/04 599,035
INDUSTRIAL REV BONDS
SPD US IRB IRB No V 6.05% 12/96 12/01 333,400
LC - LT TOTAL - LC US$ - ST US$ - LT TOTAL $
--------------------------------------------------------------
MORTGAGES PAYABLE
General Plastics 205,859 466,577 42,807 33,800 76,606
General Plastics 450,000 675,000 36,942 73,885 110,827
General Plastics 572,747 726,633 25,266 94,038 119,304
General Plastics 503,378 702,472 32,689 82,649 115,337
General Plastics 480,816 669,556 30,989 78,944 109,933
General Plastics 692,111 869,461 29,119 113,636 142,755
General Plastics 908,934 1,000,000 14,952 149,236 164,188
General Plastics 3,427,158 4,200,000 126,891 562,698 689,590
Novares S.p.A. 2,530,740 2,800,000 149,762 1,407,598 1,557,360
Pfeiffer GmbH 0 0 0 0 0
Pfeiffer GmbH 323,338 484,853 88,940 178,050 266,990
Pfeiffer GmbH 3,000,000 4,000,000 550,661 1,651,983 2,202,644
Pfeiffer GmbH 3,000,000 4,000,000 550,661 1,651,983 2,202,644
Pfeiffer GmbH 0 625,000 344,163 0 344,163
Sar 3,115,244 3,714,279 333,183 1,732,699 2,065,882
ROUNDING (1) (1)
-----------------------------------
TOTAL MORT PAYABLE 2,357,025 7,811,198 10,168,223
-----------------------------------
INDUSTRIAL REV BONDS
SPD US 582,450 915,850 333,400 582,450 915,850
-----------------------------------
Schedule 5.15
SCHEDULE 5.15
-------------
EXISTING INDEBETEDNESS
Description Secured by Rate - fixed Interest Issue Maturity
Bank name of Debt Assets or Variable? Rate Date Date
--------- ----------- --------- ----------- ------- ----- -------
CAPITAL LEASES
Dispray Capital Lease Building Yes F 2.50% 7/88 7/03
Dispray Capital Lease Building Yes F 6.62% 3/95 3/05
General Plastics Capital Lease Press Yes F 8.02% 3/15/95 3/15/00
General Plastics Capital Lease Press Yes F 8.32% 8/15/95 8/15/00
General Plastics Capital Lease Press Yes F 7.59% 4/1/96 11/26/00
Graphocolor Capital Lease Misc Equip No V 4.08% 12/30/96 12/30/08
MPN Capital Lease Sofinbail Yes F 7.49% 3/95 3/00
Pfeiffer-Valois UK Capital Lease Fork Lift Truc No F 12.43% 7/1/98 6/30/03
Rounding
Seaquist Loffler Czech Capital Lease Machine Yes F 7.00% 7/1/98 6/1/02
SVC Australia Capital Lease Volkswagon Yes F 7.24% 3/22/99 3/22/03
SVC Australia Capital Lease Subaru Yes F 6.99% 11/7/97 11/7/01
Valois Capital Lease Domibail Yes V 3.88% 6/30/90 6/30/05
Valois Capital Lease Domibail Yes V 3.85% 12/1/93 12/1/08
Valois Capital Lease Domibail Yes V 4.80% 1/10/90 7/4/05
LC - ST LC - LT TOTAL - LC US$ - ST US$ - LT TOTAL $
-------------------------------------------------------------------------
CAPITAL LEASES
Dispray 16,932 1,150,598 1,167,530 11,429 776,654 788,083
Dispray 16,418 1,190,101 1,206,519 11,082 803,318 814,400
General Plastics 372,964 0 372,964 61,236 0 61,236
General Plastics 99,557 48,564 148,121 16,346 7,974 24,320
General Plastics 101,831 79,678 181,509 16,719 13,082 29,802
Graphocolor 903,591 13,763,159 14,666,750 148,359 2,259,746 2,408,104
MPN 191,346 0 191,346 31,417 0 31,417
Pfeiffer-Valois UK 3,126 14,406 17,532 5,038 23,220 28,258
Rounding ROUNDING 2 2
Seaquist Loffler Czech 4,360,447 16,421,359 20,781,806 121,787 458,649 580,436
SVC Australia 6,226 42,608 48,834 3,949 27,026 30,975
SVC Australia 5,182 25,789 30,971 3,287 16,358 19,645
Valois 2,031,127 8,784,702 10,815,829 333,487 1,442,343 1,775,829
Valois 1,842,110 11,099,429 12,941,539 302,452 1,822,393 2,124,845
Valois 912,145 6,850,357 7,762,502 149,763 1,124,746 1,274,510
-----------------------------------
TOTAL CAPITAL LEASES 1,216,355 8,775,508 9,991,862
-----------------------------------
Schedule 5.15
SCHEDULE 5.15
-------------
EXISTING INDEBTEDNESS
Description Secured by Rate--fixed Interest Issue Maturity
Bank name of Debt Assets or Variable? Rate Date Date
--------------- ----------- ---------- ----------- -------- -------- ---------
LC - ST LC - LT TOTAL - LC US$ - ST US$ - LT TOTAL $
---------- ------- ----------- ---------- -------- -----------
GRAND TOTAL DEBT PER BOOKS 159,652,362 95,721,991 255,374,353
--------------------------
Add Guarantees:
DM based - 3/31/98
DM amt. FX rate $
Bechsteiner (former subsidiary) 3,600,000 0.550661 1,982,380
Bechsteiner (former subsidiary) 600,000 0.550661 330,397
Dollar based -
CoxxxxSeaquist LLC 3,750,000
-----------
TOTAL INDEBTEDNESS 261,437,130
===========
Schedule 5.15
SCHEDULE 10.3
-------------
EXISTING LIENS
See schedule 5.15 for debt secured by assets
Schedule 10.3
EXHIBIT 1.1-A
-------------
[FORM OF NOTE]
APTARGROUP, INC.
[____]% SENIOR NOTE, SERIES [___], DUE [__________, ____]
No. [_____] [Date]
$ [_______] PPN[______________]
FOR VALUE RECEIVED, the undersigned, APTARGROUP, INC. (herein called
the "Company"), a corporation organized and existing under the laws of the State
of Delaware, promises to pay to [______________________], or registered assigns,
the principal sum of $[_________________________] on [ ],
-------------
[_________], with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance thereof at the rate of [____]% per
annum from the date hereof, payable semiannually, on [______] [____] and
[______][____] in each year, commencing with the [______] [____] or [______]
[____] next succeeding the date hereof, until the principal hereof shall have
become due and payable, and (b) to the extent permitted by law on any overdue
payment (including any overdue prepayment) of principal, any overdue payment of
interest and any overdue payment of any Make-Whole Amount (as defined in the
Note Purchase Agreement referred to below), payable semiannually as aforesaid
(or, at the option of the registered holder hereof, on demand), at a rate per
annum from time to time equal to the greater of (i) [_____]% or (ii) 2% over the
rate of interest publicly announced by Bank of America from time to time in
Chicago, Illinois as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to a Note Purchase Agreement dated as of May 15, 1999
[and a Supplement thereto dated as of [ ], [ ]](as from time to time
further amended and supplemented, the "Note Purchase Agreement"), between the
Company and the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's
Exhibit 1.1-A
attorney duly authorized in writing, a new Note for a like principal amount will
be issued to, and registered in the name of, the transferee. Prior to due
presentment for registration of transfer, the Company may treat the person in
whose name this Note is registered as the owner hereof for the purpose of
receiving payment and for all other purposes, and the Company will not be
affected by any notice to the contrary.
[The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreement.] This Note is
[also] subject to optional prepayment, in whole or from time to time in part, at
the times and on the terms specified in the Note Purchase Agreements but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note will be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
APTARGROUP, INC.
By: ________________________________
Title: _____________________________
2
Exhibit 1.1-A
EXHIBIT 1.1-B
-------------
[FORM OF SUPPLEMENT]
SUPPLEMENT TO NOTE PURCHASE AGREEMENT
THIS SUPPLEMENT is entered into as of [ ], [ ] (this
"Supplement") between APTARGROUP, INC., a Delaware corporation (the "Company"),
and the Purchasers listed in the attached Schedule A (the "Purchasers").
R E C I T A L S
---------------
A. The Company has entered into a Note Purchase Agreement dated as of May
15, 1999 with the purchasers listed in Schedule A thereto [and one or more
supplements or amendments thereto] (as heretofore amended and supplemented, the
"Note Purchase Agreement"); and
B. The Company desires to issue and sell, and the Purchasers desire to
purchase, an additional series of Notes (as defined in the Note Purchase
Agreement) pursuant to the Note Purchase Agreement and in accordance with the
terms set forth below;
NOW, THEREFORE, the Company and the Purchasers agree as follows:
1. Authorization of the New Series of Notes. The Company has authorized
----------------------------------------
the issue and sale of $[ ] aggregate principal amount of Notes
to be designated as its [__]% Senior Notes, Series [ ], due [ ], [
] (the "Series [ ] Notes", such term to include any such Notes issued in
substitution therefor pursuant to Section 13 of the Note Purchase Agreement).
The Series [ ] Notes shall be substantially in the form set out in
Exhibit 1 to this Supplement, with such changes therefrom, if any, as may be
approved by you and the Company.
2. Sale and Purchase of Series [ ] Notes. Subject to the terms and
--------------------------------------
conditions of this Supplement and the Note Purchase Agreement, the Company will
issue and sell to each of the Purchasers, and the Purchasers will purchase from
the Company, at the Closing provided for in Section 3, Series [ ] Notes in
the principal amount specified opposite their respective names in the attached
Schedule A at the purchase price of 100% of the principal amount thereof. The
obligations of the Purchasers hereunder are several and not joint obligations
and no Purchaser shall have any liability to any Person for the performance or
non-performance by any other Purchaser hereunder.
3. Closing. The sale and purchase of the Series [ ] Notes to be
-------
purchased by the Purchasers shall occur at the offices of Gardner, Carton &
Douglas, Quaker Tower, Suite 3400,
Exhibit 1.1-B
321 North Clark Street, Chicago, Illinois 60610 at 9:00 a.m., Chicago time, at a
closing (the "Closing") on [ ], [ ] or on such other Business Day
thereafter on or prior to [ ], [ ] as may be agreed upon by the Company and the
Purchasers. At the Closing the Company will deliver to each Purchaser the
Series [ ] Notes to be purchased by it in the form of a single Note (or
such greater number of Series [ ] Notes in denominations of at least $500,000
as such Purchaser may request) dated the date of the Closing and registered in
its name (or in the name of its nominee), against delivery by such Purchaser to
the Company or its order of immediately available funds in the amount of the
purchase price therefor by wire transfer of immediately available funds for the
account of the Company to account number [__________] at [_________________]
Bank, [Insert Bank address, ABA number for wire transfers, and any other
-----------------------------------------------------------------
relevant wire transfer information]. If at the Closing the Company shall fail to
- -----------------------------------
tender such Series [ ] Notes to a Purchaser as provided above in this Section
3, or any of the conditions specified in Section 4 of the Note Purchase
Agreement, as modified or expanded by Section 4 hereof, shall not have been
fulfilled to such Purchaser's satisfaction, such Purchaser shall, at its
election, be relieved of all further obligations under this Agreement, without
thereby waiving any rights it may have by reason of such failure or such
nonfulfillment.
4. Conditions to Closing. Each Purchasers obligation to purchase and pay
---------------------
for the Series [ ] Notes to be sold to it at the Closing is subject to the
fulfillment to its satisfaction, prior to or at the Closing, of the conditions
set forth in Section 4 of the Note Purchase Agreement, as hereafter modified,
and to the following additional conditions:
[Set forth any modifications and additional conditions.]
5. Representations and Warranties of the Company. The Company represents
---------------------------------------------
and warrants to the Purchasers that each of the representations and warranties
contained in Section 5 of the Note Purchase Agreement is true and correct as of
the date hereof (i) except that all references to "Purchaser" and "you" therein
shall be deemed to refer to the Purchasers hereunder, all references to "this
Agreement" shall be deemed to refer to the Note Purchase Agreement as
supplemented by this Supplement, and all references to "Notes" therein shall be
deemed to include the Series [ ] Notes, and (ii) except for changes to such
representations and warranties or the Schedules referred to therein, which
changes are set forth in the attached Schedule 5.
6. Representations of the Purchasers. Each Purchaser confirms to the
---------------------------------
Company that the representations set forth in Section 6 of the Note Purchase
Agreement are true and correct as to such Purchaser.
2
Exhibit 1.1-B
7. Mandatory Prepayment of the Series [ ] Notes. [The Series [ ]
-----------------------------------------------
Notes are not subject to mandatory prepayment by the Company.] [On [ ],
[ ] and on each [ ] thereafter to and including [ ], [ ] the
Company will prepay $[ ] principal amount (or such lesser
principal amount as shall then be outstanding) of the Series [ ] Notes at par
and without payment of the Make-Whole Amount or any premium.]
8. Applicability of Note Purchase Agreement. Except as otherwise
----------------------------------------
expressly provided herein (and expressly permitted by the Note Purchase
Agreement), all of the provisions of the Note Purchase Agreement are
incorporated by reference herein and shall apply to the Series [ ] Notes as
if expressly set forth in this Supplement.
IN WITNESS WHEREOF, the Company and the Purchasers have caused this
Supplement to be executed and delivered as of the date set forth above.
APTARGROUP, INC.
By:________________________
Title:_____________________
[ADD PURCHASER SIGNATURE BLOCKS]
3
Exhibit 1.1-B
Schedule A
to Supplement
-------------
INFORMATION RELATING TO PURCHASERS
Principal Amount of Series
Name and Address of Purchaser [ ] Notes to be Purchased
- ----------------------------- --------------------------
[NAME OF PURCHASER] $
(1) All payments by wire transfer
of immediately available
funds to:
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
(3) All other communications:
4
Exhibit 1.1-B
Schedule 5
to Supplement
-------------
EXCEPTIONS TO REPRESENTATIONS
AND WARRANTIES
5
Exhibit 1.1-B
Exhibit 1 to
Supplement
----------
[FORM OF SERIES [ ] NOTE]
6
Exhibit 1.1-B
EXHIBIT 1.2
-----------
[FORM OF SERIES 1999-A NOTE]
APTARGROUP, INC.
6.62% Senior Note, Series 1999-A
due May 30, 2011
No. [_____] [Date]
$[________] $PPN[______________]
FOR VALUE RECEIVED, the undersigned, APTARGROUP, INC. (herein called
the "Company"), a corporation organized and existing under the laws of the State
of Delaware, promises to pay to [______________________], or registered assigns,
the principal sum of $[ ] on May 30, 2011, with interest (computed on
the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance
thereof at the rate of 6.62% per annum from the date hereof, payable
semiannually, on May 30 and November 30 in each year, commencing with November
30, 1999, until the principal hereof shall have become due and payable, and (b)
to the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note Purchase Agreement
referred to below), payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 8.62% or (ii) 2% over the rate of interest publicly
announced by Bank of America from time to time in Chicago, Illinois as its
"base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Notes (herein called the "Notes")
issued pursuant to a Note Purchase Agreement, dated as of May 15, 1999 as from
time to time amended and supplemented, the "Note Purchase Agreement"), between
the Company and the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance
hereof, (i) to have agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's
Exhibit 1.2(a)
attorney duly authorized in writing, a new Note for a like principal amount will
be issued to, and registered in the name of, the transferee. Prior to due
presentment for registration of transfer, the Company may treat the person in
whose name this Note is registered as the owner hereof for the purpose of
receiving payment and for all other purposes, and the Company will not be
affected by any notice to the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note will be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
APTARGROUP, INC.
By:_______________________
Title:____________________
2
Exhibit 1.2(a)
EXHIBIT 4.4(a)
FORM OF OPINION OF COUNSEL
TO THE COMPANY
The opinion of Sidley & Austin, counsel to the Company, shall be to the
effect that:
1. The Company is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, has the corporate power and
the corporate authority to execute and perform the Note Purchase Agreement and
to issue the Series 1999-A Notes and has the corporate power and the corporate
authority to own and operate its properties and to carry on its business as
described in the Company's Annual Report on Form 10-K for the year ended
December 31, 1998.
2. The Company is duly qualified and in good standing as a foreign
corporation in the States of California, Illinois, Indiana, Michigan, Minnesota,
New Jersey, North Carolina, Ohio and Wisconsin.
3. The Note Purchase Agreement and the Series 1999-A Notes have been duly
authorized by all necessary corporate action on the part of the Company, have
been duly executed and delivered by the Company and constitute the legal, valid
and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except to the extent enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws affecting the enforcement of
creditors' rights generally and by the effect of general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
4. The issuance, sale and delivery of the Series 1999-A Notes under the
circumstances contemplated by the Note Purchase Agreement do not, under existing
law, require the registration of the Series 1999-A Notes under the Securities
Act of 1933, as amended, or the qualification of an indenture in respect of the
Notes under the Trust Indenture Act of 1939, as amended.
5. No approval, consent or withholding of objection on the part of, or
filing, registration or qualification with, any Governmental Authority is
necessary or required in connection with the execution, delivery and performance
by the Company of the Note Purchase Agreement or the issuance and sale by the
Company of the Series 1999-A Notes.
6. The issuance and sale of the Series 1999-A Notes by the Company and
the execution, delivery and performance by the Company of the Note Purchase
Agreement do not violate the Amended and Restated Certificate of Incorporation
or By-Laws of the Company, do not result in any breach of any provisions of,
constitute a default under or result in the creation or imposition of any Lien
on any property of the Company pursuant to any agreement or other instrument
known to such counsel that is applicable to the Company and do not violate any
law or regulation or any order, writ, injunction or decree known to such counsel
of any court or Governmental Authority applicable to the Company.
Exhibit 4.4(a)
7. The Company is not (i) a "public utility company" or a "holding
company," or an "affiliate" or a "subsidiary company" of a "holding company," or
an "affiliate" of such a "subsidiary company," as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended, (ii) a "public utility"
as defined in the Federal Power Act, as amended, or (iii) an "investment
company" or an "affiliated person" thereof, as such terms are defined in the
Investment Company Act of 1940, as amended.
8. The use of the proceeds of the sale of the Series 1999-A Notes in
accordance with the terms of the Note Purchase Agreement do not violate or
conflict with Regulation T, U or X of the Board of Governors of the Federal
Reserve System.
The opinion of Sidley & Austin shall cover such other matters relating to the
sale of the Series 1999-A Notes as the Purchasers may reasonably request. With
respect to matters of fact on which such opinion is based, such counsel shall be
entitled to rely on appropriate certificates of public officials and officers of
the Company and with respect to matters governed by the laws of any jurisdiction
other than the United States of America, the Delaware General Corporation Law
and the laws of the State of Illinois, such counsel may rely upon the opinions
of counsel deemed (and stated in their opinion to be deemed) by it to be
competent and reliable.
2
Exhibit 4.4(a)
EXHIBIT 4.4(b)
FORM OF OPINION OF SPECIAL COUNSEL
TO THE PURCHASERS
The opinion of Gardner, Carton & Douglas, special counsel to the
Purchasers, shall be to the effect that:
1. The Company is a corporation organized and validly existing in good
standing under the laws of the State of Delaware, with all requisite corporate
power and authority to enter into the Agreement and to issue and sell the Series
1999-A Notes.
2. The Agreement and the Series 1999-A Notes have been duly authorized by
proper corporate action on the part of the Company, have been duly executed and
delivered by an authorized officer of the Company, and constitute the legal,
valid and binding agreements of the Company, enforceable in accordance with
their terms, except to the extent that enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application relating to or affecting the enforcement of the rights of
creditors or by equitable principles, regardless of whether enforcement is
sought in a proceeding in equity or at law.
3. Based upon the representations set forth in the Agreement, the
offering, sale and delivery of the Series 1999-A Notes do not require the
registration of the Series 1999-A Notes under the Securities Act of 1933, as
amended, nor the qualification of an indenture under the Trust Indenture Act of
1939, as amended.
4. The issuance and sale of the Series 1999-A Notes and compliance with
the terms and provisions of the Series 1999-A Notes and the Agreement will not
conflict with or result in any breach of any of the provisions of the
Certificate of Incorporation or By-Laws of the Company.
5. No approval, consent or withholding of objection on the part of, or
filing, registration or qualification with, any governmental body, Federal or
state, is necessary in connection with the execution and delivery of the
Agreement or the Series 1999-A Notes.
The opinion of Gardner, Carton & Douglas also shall state that the opinion of
Sidley & Austin, delivered to you pursuant to the Agreement, is satisfactory in
form and scope to Gardner, Carton & Douglas, and, in its opinion, the Purchasers
are justified in relying thereon and shall cover such other matters relating to
the sale of the Series 1999-A Notes as the Purchasers may reasonably request.