THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN
STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT
AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE
INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED TO THE PRIOR
INDEFEASIBLE CASH PAYMENT IN FULL OF THE SENIOR OBLIGATIONS IN RESPECT OF ALL
SENIOR DEBT (AS DEFINED HEREIN) IN ACCORDANCE WITH THE TERMS HEREOF. THE ISSUER
OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER
OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
ALLTRISTA CORPORATION
(A Delaware corporation)
Amount: $10,000,000 April 24, 2002
UNSECURED SUBORDINATED PROMISSORY NOTE
For value received, ALLTRISTA CORPORATION, a Delaware corporation ("PAYOR"),
with its principal offices at 555 Theodore Fremd Avenue, Suite B302, Rye, New
York 10580, unconditionally promises to pay Tilia International, Inc. or its
assigns ("PAYEE"), the principal sum of Ten Million Dollars ($10,000,000). The
outstanding principal amount shall be due and payable on March 31, 2003 (the
"MATURITY DATE").
1. INTEREST. The outstanding principal amount on this Unsecured Subordinated
Promissory Note (this "NOTE") shall bear no interest until this Note is paid in
full in accordance with SECTION 2. Notwithstanding the foregoing, any amount
outstanding under this Note shall bear interest from and after the Maturity Date
at the rate of eight (8%) per annum. Any interest on this Note accruing after
the Maturity Date shall accrue and be compounded daily until the obligation of
Payor with respect to the payment of such interest and principal has been
discharged (whether before or after judgment).
2. PAYMENTS. Subject to the provisions of SECTION 4, Payor may prepay all or
any portion of this Note at any time without penalty. All payments shall be made
to Payee at its offices at, or at such other address as Payee may specify in
writing, and all such payments shall be accompanied by a certificate from an
officer of Payor certifying that Payor is not prohibited from making payments
under Sections 4.2(b)(i) and (ii). All payments received from Payor hereunder
shall be applied first, to the payment of any expenses due to Payee pursuant to
the terms of this Note, and second, to reduce the principal balance hereunder.
Any payments of expenses, principal or interest, if any, shall be made in U.S.
dollars.
3. PURCHASE AGREEMENT. This Note is issued pursuant to the Asset Purchase
Agreement, dated as of March 27, 2002, among Tilia International, Inc., a Cook
Islands corporation, Tilia, Inc, a California corporation, Tilia Canada, Inc., a
corporation organized
under the Canada Business Corporation Act, Alexander Schilling and Payor (the
"PURCHASE AGREEMENT"), and is subject to the provisions thereof, including,
without limitation, Section 13.2(a) of the Purchase Agreement. Capitalized terms
used herein shall the same meanings set forth in the Purchase Agreement unless
otherwise specifically defined herein.
4. SUBORDINATION. By accepting this Note, Payee expressly agrees to
discharge its obligations under this SECTION 4.
4.1. AGREEMENT TO SUBORDINATE. Payor and Payee agree that this Note is and
shall be subordinate, to the extent and in the manner hereinafter set forth, in
right of payment to the prior indefeasible cash payment in full of all of
Payor's payment obligations now or hereafter existing in respect of any Senior
Debt, whether for principal, interest (including, without limitation, interest,
accruing after the filing of a petition initiating any proceeding referred to in
SECTION 4.2 hereof whether or not such interest accrues after the filing of such
petition or is an allowed claim in such proceeding), fees, expenses or otherwise
(such payment obligations being the "SENIOR OBLIGATIONS").
4.2. EVENTS OF SUBORDINATION.
(a) Senior Debt Holders will be entitled to receive payment in full of all
Senior Obligations due in respect of Senior Debt (including interest after the
commencement of any bankruptcy proceeding at the rate specified in the
applicable Senior Debt) before Payee will be entitled to receive any payment
with respect to this Note, in the event of any distribution to creditors of
Payor: (i) in a liquidation or dissolution of Payor; (ii) in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to Payor
or its property; (iii) in an assignment for the benefit of creditors; or (iv) in
any marshaling of Payor's assets and liabilities.
(b) Payor may not make any payment in respect of the Note:
(i) in the event any default in the payment of principal of, interest
or premium, if any, on any Designated Senior Debt occurs and is continuing
beyond any applicable period of grace in the agreement, indenture or other
document governing such Designated Senior Debt (a "PAYMENT EVENT OF
DEFAULT"), or
(ii) in the event any other default occurs and is continuing beyond any
applicable period of grace with respect to any Designated Senior Debt (the
"NON-PAYMENT EVENT OF DEFAULT") which permits Designated Senior Debt Holders
as to which such default relates to accelerate its maturity and Payor
receives notice of such default (a "PAYMENT BLOCKAGE NOTICE") from the
Designated Senior Debt Holders (or their representative).
(iii) Payments on this Note may and shall be resumed (x) in the case of
a Payment Event of Default, upon the date on which such default is cured or
waived and (y) in case of a Non-payment Event of Default, the earlier of the
date on which such Non-payment Event of Default is cured or waived or 179
days after the date on which the applicable Payment Blockage Notice is
received unless a Payment Event of Default has occurred and is continuing
with respect to the applicable Designated Senior Debt. No
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new period of payment blockage may be commenced by a Payment Blockage
Notice unless and until (i) 360 days have elapsed since the first day of the
effectiveness of the immediately prior Payment Blockage Notice and (ii) all
scheduled payments of principal and interest on the Note that have come due
have been paid in full in cash. No Nonpayment Event of Default that existed
or was continuing on the date of delivery of any Payment Blockage Notice to
Payor may be, or may be made, the basis for a subsequent Payment Blockage
Notice.
(c) Upon the occurrence of an Event of Default hereunder, Payor will
promptly notify the Senior Debt Holders of the Event of Default.
(d) In the event that Payee receives any payment with respect to the Note at
a time when such payment is prohibited by SECTION 4.2 hereof and Payee, has
actual knowledge that such payment is prohibited by SECTION 4.2 hereof, such
payment (the "UNPERMITTED PAYMENT") shall be held by Payee, in trust for the
benefit of the Senior Debt Holders. Upon written request of a Designated Senior
Debt Holder (the "PAYMENT INSTRUCTION NOTICE"), Payee shall deliver the
Unpermitted Payment in trust to the senior most Designated Senior Debt Holder in
accordance with the instructions contained in the Payment Instruction Notice of
such Designated Senior Debt Holder, without regard to any other conflicting
instructions received by Payee. Under no circumstances shall Payee be liable to
Payor or to any Senior Debt Holders, or any other person, (i) for its delivery
to the senior most Designated Senior Debt Holder of any Unpermitted Payment upon
its receipt of a Payment Instruction Notice from a Designated Senior Debt Holder
as provided in this Section 4.2(d), or (ii) for its failure to deliver any
amounts pursuant to this paragraph to any other Designated Senior Debt Holder.
Payee shall not be required to determine the existence of any Senior Debt or the
existence or validity of any Designated Senior Debt Holder, or decide any
questions of law.
(e) Payor shall promptly notify Payee in writing of any facts known to Payor
that would cause a payment of any amounts under this Note to violate this
SECTION 4.2, but failure to give such notice shall not affect the subordination
of this Note to the Senior Debt as provided in this SECTION 4.2, except as
specifically provided in Section 4.2(M).
(f) After all Senior Debt is paid in full and until this Note is paid in
full, Payee shall be subrogated (equally and ratably with the holders of all
Indebtedness of Payor which by its express terms is subordinated to Senior Debt
of Payor to the same extent as the Note is subordinated and which is entitled to
like rights of subrogation) to the rights of Senior Debt Holders to receive
distributions applicable to Senior Debt to the extent that distributions
otherwise payable to Payee have been applied to the payment of Senior Debt. A
distribution made under this SECTION 4.2 to Senior Debt Holders that otherwise
would have been made to Payee is not, as between Payor and Payee, a payment by
Payor on this Note.
(g) This SECTION 4.2 defines the relative rights of Payee and Senior Debt
Holders. Nothing in this Note shall:
(i) impair, as between Payor and Payee, the obligation of Payor, which
is absolute and unconditional, to pay principal of and interest on this Note
in accordance with its terms;
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(ii) affect the relative rights of Payee and creditors of Payor other
than their rights in relation to Senior Debt Holders; or
(iii) prevent the Payee from exercising its available remedies upon a
Default or Event of Default, subject to the rights of Senior Debt Holders to
receive distributions and payments otherwise payable to Payee.
(h) If Payor fails because of this SECTION 4.2 to pay principal of or
interest on this Note on the due date, the failure is still a Default or Event
of Default.
(i) No right of any holder of Senior Debt to enforce the subordination of
the Indebtedness evidenced by this Note shall be impaired by any act or failure
to act by Payor or Payee or by the failure of Payor or Payee to comply with the
terms of this Note (subject to Section 4.2(m) hereof.
(j) Whenever a distribution is to be made or a notice given to Senior Debt
Holders, the distribution may be made and the notice given to their
representative.
(k) Upon any payment or distribution of assets of Payor referred to in this
SECTION 4.2, Payee shall be entitled to rely upon any order or decree made by
any court of competent jurisdiction or upon any certificate of a representative
or of the liquidating trustee or agent or other Person making any distribution
to Payee of this Note for the purpose of ascertaining the Persons entitled to
participate in such distribution, the Senior Debt Holders and other Indebtedness
of Payor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this SECTION
4.2.
(l) For the purposes of this Note, the Senior Obligations shall not be
deemed to have been paid in full unless the Senior Debt Holders shall have
received indefeasible cash payment in full of the Senior Obligations (whether
matured or unmatured).
(m) Any payment under this Note is permitted and shall not be subject to
Section 4.2(d) hereof, unless such payment is specifically prohibited by Section
4.2(b) hereof and Payee has actual notice of such prohibition.
5. RIGHT OF SETOFF. Subject to the limitations of and compliance with the
provisions set forth in Section 13 of the Purchase Agreement (including, without
limitation, Section 13.2(a) of the Purchase Agreement), and notwithstanding the
provisions of SECTION 4 above, if an indemnification claim is made against
Sellers under SECTION 13 of the Purchase Agreement for Buyer Losses and
indemnification is payable to the Buyer in accordance with the terms of Section
13 thereof (the "INDEMNIFIABLE AMOUNT"), Payor is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, and until the
Maturity Date, to set off and apply any and all such Indemnifiable Amounts
against any of and all the obligations of the Payor under this Note, provided
that Payor shall provide Payee with a minimum of ten (10) days advance written
notice to the address set forth on the signature page hereto (in accordance with
the notice provisions of the Purchase Agreement) of any intended setoff under
this Note irrespective of whether or not Payor shall have made any demand under
the Purchase Agreement. The rights of Payor under this SECTION 5 are in addition
to other rights and remedies (including other rights of setoff) which Payor may
have.
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6. NO VOTING RIGHTS. This Note shall not entitle Payee to any voting rights
or other rights as a stockholder of Payor.
7. TRANSFERS. This Note may be transferred or assigned in whole or in part
by Payee to any other person or entity without the prior written consent of
Payor, provided that such transfer is in compliance with applicable federal and
state securities laws, if any, and Payee surrenders the original Note (or an
affidavit of lost promissory note containing appropriate indemnification) for
registration of transfer, duly endorsed, or accompanied by a duly executed
written instrument of transfer in form reasonably satisfactory to Payor.
Thereupon, a new promissory note for like principal amount will be issued to,
and registered in the name of, the transferee. Interest, if any, and principal
are payable only to the registered holder of this Note. Payee agrees to provide
a form W-8 to Payor on request.
8. ASSIGNS. This Note shall inure to the benefit of and bind the successors,
permitted assigns, heirs, executors, and administrators of Payor and Payee.
Failure of Payee to assert any right herein shall not be deemed to be a waiver
thereof.
9. EVENT OF DEFAULT. This Note shall become immediately due and payable upon
the occurrence of an Event of Default (as defined below), whereupon (i) this
Note and any interest shall become and be immediately due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by Payor; and (ii) Payee, at its option, may proceed to
enforce all other rights and remedies available to Payee under applicable law.
For purposes hereof, the occurrence of any of the following shall constitute an
"EVENT OF DEFAULT" under this Note:
(a) the failure to make any payment of principal or any other amount payable
hereunder when due under this Note (whether or not prohibited by the
subordination provisions of SECTION 4) or the breach of any other condition or
obligation under this Note; or
(b) the filing of a petition by or against Payor under any provision of
applicable bankruptcy or similar law; or appointment of a receiver, trustee,
custodian or liquidator of or for all or any part of the assets or property of
Payor; or the insolvency of Payor; or the making of a general assignment for the
benefit of creditors by Payor.
10. DEFINITIONS.
10.1. "CAPITAL LEASE OBLIGATION" means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet in accordance with
GAAP.
10.2. "DEFAULT" shall mean any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
10.3. "DESIGNATED SENIOR DEBT" shall mean (1) any Indebtedness outstanding
under the Senior Credit Facility, (2) any Indebtedness under the Senior
Subordinated Debt, and (3) after payment in full of all Senior Obligations under
the Senior Credit Facility and the Senior Subordinated Debt, any other Senior
Debt permitted under the Indenture the outstanding
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principal amount of which is $25 million or more and that has been designated by
Payor as "Designated Senior Debt".
10.4. "DESIGNATED SENIOR DEBT HOLDER" shall mean the trustee under the
Indenture, and the administrative agent under the Senior Credit Facility, and
any successors or assigns thereto, and any other Senior Debt Holder specifically
designated in writing by Payor. Any notice to a Specified Senior Debt Holder
shall be given in accordance with the notice provisions set forth in the
Indenture, Senior Credit Facility, or at the address set forth in the
designation provided by Payor with respect to any other Senior Debt Holder, as
applicable.
10.5. "GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
10.6. "GUARANTEE" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
10.7. "GUARANTOR" means: (i) each of Payor's direct and indirect domestic
subsidiaries existing on the date of the Indenture, and (ii) any other
Subsidiary that executes a Guarantee in accordance with the provisions of the
Indenture.
10.8. "HEDGING OBLIGATIONS" means the obligations of Payor under: (i)
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements; and (ii) other agreements or arrangements designed to protect
Payor against fluctuations in interest rates.
10.9. "INDEBTEDNESS" shall mean any indebtedness of Payor, whether or not
contingent, (1) in respect of borrowed money; (2) evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof); (3) in respect of banker's acceptances; (4)
representing Capital Lease Obligations; (5) representing the balance deferred
and unpaid of the purchase price of any property, except any such balance that
constitutes an accrued expense or trade payable; or (6) representing any Hedging
Obligations, if and to the extent any of the preceding items (other than letters
of credit and Hedging Obligations) would appear as a liability upon a balance
sheet of Payor prepared in accordance with GAAP. In addition, the term
"INDEBTEDNESS" includes all Indebtedness of others secured by a Lien on any
asset of Payor (whether or not such Indebtedness is assumed by Payor) and, to
the extent not otherwise included, a Guarantee by Payor of any Indebtedness of
any other Person. The amount of any Indebtedness outstanding as of any date will
be: (1) the accreted value of the Indebtedness, in the case of any Indebtedness
issued with original issue discount; (2) the principal amount of the
Indebtedness, together with any interest on the Indebtedness that is more than
30 days past due, in the case of any other Indebtedness; (3) the lesser of the
Indebtedness and the fair market value of the collateral asset, in the case of
any Indebtedness of others secured by a Lien on any asset of Payor; and (4) the
lesser of the primary Indebtedness and any stated
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limit on recourse under the Guarantee, in the case of Indebtedness of others
secured by a guarantee of the specified Person.
10.10. "INDENTURE" shall mean that certain Indenture, dated as of April 24,
2002, among Payor, the Guarantors and The Bank of New York, as trustee, as in
effect on the date hereof, together with such modifications and amendments as
may be consented to by Payor and Payee.
10.11. "LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in any asset.
10.12. "PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
10.13. "SENIOR CREDIT FACILITY" shall mean that certain Credit Agreement,
dated as of April 24, 2002, by and among Payor, Bank of America, N.A., as
administrative agent, Banc of America Securities LLC, as co-lead arranger, and
CIBC World Markets Corp., as co-lead arranger, providing for $50.0 million of
term loan borrowings and up to $50.0 million of revolving credit borrowings,
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended,
amended and restated, supplemented, modified, renewed, refunded, replaced or
refinanced from time to time.
10.14. "SENIOR DEBT" shall mean: (i) the Senior Credit Facility and the
Senior Subordinated Debt, (ii) other Indebtedness of Payor permitted to be
incurred under the terms of the Indenture that is specifically identified in the
terms of such Indebtedness to rank in parity or senior to the Senior
Subordinated Debt, and (iii) all Senior Obligations with respect to the items
listed in the preceding clauses (i) and (ii). Notwithstanding anything to the
contrary in the preceding, Senior Debt shall not include: (i) any intercompany
Indebtedness of Payor or any of its subsidiaries to Payor or any of its
Affiliates, (ii) any liability for federal, state, local or other taxes owed or
owing, (iii) any trade payables, (iv) the portion of any Indebtedness that is
incurred in violation of the terms of any Senior Debt or (v) Indebtedness which,
when incurred and without respect to any election under Section 1111(b) of Title
11, United States Code, is without recourse to Payor or any Guarantor.
10.15. "SENIOR DEBT HOLDERS" shall mean the beneficial owners of Senior Debt
and shall include any representatives thereof, including, but not limited to, in
the case of an indenture, the trustee under such indenture, or in the case of a
credit facility, the agent of the lender.
10.16. "SENIOR OBLIGATIONS" shall have the meaning set forth in Section 4.1
hereof.
10.17. "SENIOR SUBORDINATED DEBT" shall mean the senior subordinated notes
issued under the Indenture.
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10.18. "SUBSIDIARY" means, with respect to Payor: any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees of
the corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by Payor or one or more of the other
Subsidiaries of Payor (or a combination thereof); and any partnership (a) the
sole general partner or the managing general partner of which is Payor or a
Subsidiary of Payor or (b) the only general partners of which are Payor or one
or more Subsidiaries of Payor (or any combination thereof).
11. USURY SAVINGS CLAUSE. Payor and Payee intend to comply at all times with
applicable usury laws. If at any time such laws would render usurious any
amounts due under this Note under applicable law, then it is Payor's and Payee's
express intention that Payor not be required to pay interest on this Note at a
rate in excess of the maximum lawful rate, that the provisions of this SECTION
11 shall control over all other provisions of this Note which may be in apparent
conflict hereunder, that such excess amount shall be immediately credited to the
principal balance of this Note, and the provisions hereof shall immediately be
reformed and the amounts thereafter decreased, so as to comply with the then
applicable usury law, but so as to permit the recovery of the fullest amount
otherwise due under this Note.
12. COSTS. Payor agrees to pay all reasonable costs of collection of any
amounts due hereunder arising as a result of any default hereunder, including
without limitation, reasonable attorneys' fees and expenses.
13. GOVERNING LAW. This Note is made in accordance with and shall be
construed under the laws of the State of Delaware, other than the conflicts of
law principles thereof.
14. WAIVER. Payor hereby expressly waives presentment, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other
formality.
ALLTRISTA CORPORATION
By: /s/ Ian G.H. Ashken
--------------------------------
Name: Ian G.H. Ashken
Title: Vice Chariman, Chief Financial
Officer and Secretary
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