EXHIBIT 10.112
NOTE PURCHASE AGREEMENT
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This NOTE PURCHASE AGREEMENT (this "Agreement") is dated as of November 17,
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1999, by and between (i) IMPAC Group, Inc., a Delaware corporation (the
"Company"), and (ii) Heritage Fund II Investment Corporation, a Delaware
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corporation (the "Investor").
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WHEREAS, the Company wishes to sell and the Investor wishes to buy certain
securities of the Company on the terms and subject to the restrictions contained
in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the Company and the Investor agree as follows:
1. DEFINITIONS.
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For all purposes of this Agreement, the following terms shall have the
meanings set forth herein or elsewhere in the provisions hereof:
"Affiliate" of any specified Person shall mean any other Person that
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directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified.
"Agent" shall have the meaning given such term in the Loan Agreement.
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"Certificate of Incorporation" shall mean the Company's Fourth Amended and
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Restated Certificate of Incorporation.
"Closing" shall have the meaning specified in Section 2.2 hereof.
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"Closing Date" shall have the meaning specified in Section 2.2 hereof.
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"Commission" shall mean the Securities and Exchange Commission.
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"Company" shall have the meaning specified in the introductory paragraph
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hereof.
"Default" shall mean an event or condition which with the passage of time
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or giving of notice, or both, would become an Event of Default.
"Event of Default" shall have the meaning specified in Section 7.1 hereof.
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"Heritage Rate" shall mean the rate of interest payable from time to time
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by the Investor on its line of credit with BankBoston, N.A. or any successor, or
any other rate of interest agreed to by the Company and the holder of the Note
if the Note is
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transferred. At the request of the Company the Investor will provide
documentation in reasonable detail evidencing the Heritage Rate.
"Indebtedness" shall have the meaning given such term in the Indenture.
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"Indenture" shall mean the Indenture dated as of March 12, 1998 among the
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Company, certain of the Company's Subsidiaries and State Street Bank and Trust
Company, as trustee thereunder, as supplemented to by the First Supplemental
Indenture, dated as of July 21, 1998 and as further supplemented by the Second
Supplemental Indenture dated as of January 31, 1999.
"Investor" shall have the meaning specified in the introductory paragraph
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hereof.
"Loan Agreement" shall mean the Amended and Restated Multi-currency Credit
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Agreement, dated as of March 12, 1998, and amended and restated as of July 7,
1998, as further amended by that certain First Amendment dated as of September
11, 1998, as further amended by that certain Second Amendment dated as of
November 13, 1998, as further amended by that certain Third Amendment dated as
of November 16, 1998, as further amended by that certain Fourth Amendment dated
as of December 10, 1998, as further amended by that certain Fifth Amendment
dated as of January 11, 1999, and as further amended by that certain Sixth
Amendment dated as of November 2, 1999, among the Company, certain of its
Subsidiaries and Bank of America National Trust and Savings Association and the
other lenders party thereto, as such Loan Agreement may be amended, restated,
modified, supplemented, extended, renewed or refinanced and in effect from time
to time.
"Maximum Rate" shall have the meaning specified in Section 3.4(b).
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"Note" shall mean the Note of the Company in the form of Exhibit A hereto
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issued to the Investor pursuant to Section 2.1 hereof and any other Notes
transferred to any other holders pursuant to Section 8 hereof.
"Obligations" shall have the meaning given to such term in the Indenture.
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"Person" shall mean an individual, partnership, corporation, limited
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liability company, association, trust, joint venture, unincorporated
organization, or any government, governmental department or agency or political
subdivision thereof.
"Preferred Stock" shall mean the Company's Series A Redeemable Preferred
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Stock, $0.001 par value per share.
"Purchase Price" shall have the meaning set forth in Section 2.1 hereof.
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"Representative" shall have the meaning given to such term in the
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Indenture.
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"Securities Act" shall mean the Securities Act of 1933, as amended, or any
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successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Senior Debt" shall mean any amounts outstanding or that could be drawn by
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the Company from time to time under the Loan Agreement and any other debt that
constitutes Senior Debt under the Indenture.
"Senior Subordinated Notes" shall mean the Company's 10-1/8% Senior
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Subordinated Notes due 2008 issued pursuant to the Indenture.
"Subsidiary" shall mean, with respect to the Company, any corporation a
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majority (by number of votes) of the outstanding shares of any class or classes
of which shall at the time be owned by the Company or by a Subsidiary of the
Company, if the holders of the shares of such class or classes (a) are
ordinarily, in the absence of contingencies, entitled to vote for the election
of a majority of the directors (or persons performing similar functions) of the
issuer thereof, even though the right so to vote has been suspended by the
happening of such a contingency, or (b) are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the issuer thereof, whether or not the right so
to vote exists by reason of the happening of a contingency.
"Transfer Notice" shall have the meaning specified in Section 8.2 hereof.
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2. SALE AND PURCHASE OF PURCHASED SECURITIES.
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2.1. Sale and Purchase of Note. The Company agrees to issue and sell to
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the Investor, and, subject to all of the terms and conditions hereof and in
reliance on the representations and warranties set forth or referred to herein,
the Investor agrees to purchase a Note of the Company in the form of Exhibit A
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hereto in the principal amount of $4,900,000 (the "Purchase Price").
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2.2. Closing. The closing of the purchase and sale of a Note pursuant to
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this Section 2 (the "Closing") will take place at the offices of the Company on
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November 17, 1999 or such date as the parties hereto may agree upon (the
"Closing Date"). At the Closing, the Company will deliver to the Investor the
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Note against payment by the Investor of the Purchase Price by wire transfer or
by check. The Note purchased by the Investor will be issued to the Investor on
or before the Closing Date and registered in the Investor's name in the
Company's records.
2.3. Use of Proceeds. The Company agrees that it will use the proceeds
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from the sale of the Note hereunder solely for working capital and general
corporate purposes, and in no event for the prepayment of the Senior
Subordinated Notes or to redeem any of the Preferred Stock.
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3. PRINCIPAL AND INTEREST PAYMENTS ON NOTES.
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3.1. Mandatory Principal Repayments. The Company agrees to repay the
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principal amount of the Note, together with all accrued and unpaid interest
thereon, in one installment on March 31, 2006.
3.2. Prepayments. Subject to compliance with the Loan Agreement, the
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Company shall be permitted to prepay all or any portion of the Note, together
with all accrued and unpaid interest thereon, at any time without premium or
penalty.
3.3. No Reborrowing. No amount repaid pursuant to Section 3.1 may be
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reborrowed under the Notes.
3.4. Interest Payments.
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(a) The unpaid principal amount of the Note outstanding from time to time
(including during the continuance of a Default or Event of Default of the type
described in Section 7.1(a) or 7.1(b) hereof) shall bear interest at a rate per
annum equal to the Heritage Rate; provided, that in no event shall such interest
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rate be greater than 12% per annum (including all capitalized fees and
expenses). Interest on the Note shall be calculated on the basis of the actual
number of days elapsed and a 360 day year, shall accrue and be compounded semi-
annually in arrears on June 30 and December 31, commencing on June 30, 2000,
until paid pursuant to Section 3.1 hereof. All interest will be paid semi-
annually in arrears on June 30 and December 31, commencing on June 30, 2000.
(b) It is not intended by the holder of the Note, and nothing contained
in this Agreement or the Note shall be deemed, to establish or require the
payment of a rate of interest in excess of the maximum rate permitted by
applicable federal, state or other law (the "Maximum Rate") and, to prevent such
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an occurrence, any agreement which may now or hereafter be in effect between the
Company and the holder of the Note regarding the payment of fees or interest to
such holder is hereby limited by the provisions of this Section 3.4(b). If, in
any month, the effective interest rate applicable to the principal outstanding
under the Note, absent the Maximum Rate limitation contained herein, would have
exceeded the Maximum Rate, then the effective interest rate applicable to the
Note for that month shall be the Maximum Rate, and, if in any subsequent month,
the effective interest rate would otherwise be less than the Maximum Rate, then
the effective interest rate applicable to the Note for such month shall be
increased to the Maximum Rate until such time as the amount of interest paid
hereunder equals the amount of interest which would have been paid in respect of
the Note if the same had not been limited by the Maximum Rate. In the event
that, upon payment in full of the principal outstanding under the Note, the
total amount of interest paid or accrued in respect of the Note under the terms
of this Agreement is less than the total
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amount of interest which would have been paid or accrued in respect of the Note
had the interest not been limited hereby to the Maximum Rate, then the Company
shall, to the extent permitted by such applicable federal, state or other law,
pay to the holder of the Note an amount equal to the excess, if any, of (i) the
lesser of (A) the amount of interest which would have been charged in respect of
the Note if the Maximum Rate had, at all times, been in effect with respect to
the Note and (B) the amount of interest which would have accrued in respect of
the Note had the effective interest rate applicable with respect to the Note at
all times not been limited hereunder by the Maximum Rate over (ii) the amount of
interest actually paid or accrued in respect of the Note held by such holder
under this Agreement. In the event that the holder of the Note receive, collect
or apply as interest any sum in excess of the Maximum Rate, such excess or part
thereof remaining, shall be paid to the Company.
3.5. Senior Subordinated Notes. All Indebtedness of the Company evidenced
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by the Note shall be pari passu in right of payment to the Indebtedness of the
Company evidenced by the Senior Subordinated Notes.
4. SUBORDINATION.
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4.1. Agreement to Subordinate. The Company agrees, and any holder of the
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Note by accepting the Note agrees, that the Indebtedness, interest and other
Obligations of any kind evidenced by the Note and this Agreement is subordinated
in right of payment, to the extent and in the manner provided in this Section 4,
to the prior payment in full in cash of all Senior Debt (whether outstanding on
the date hereof or hereafter created, incurred, assumed or guaranteed), and that
the subordination is for the benefit of the holders of Senior Debt.
4.2. Certain Definitions.
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"Designated Senior Debt" means (i) any Indebtedness outstanding under the
New Credit Facility (as defined in the Indenture) and (ii) any other Senior Debt
permitted under the Indenture the principal amount of which is $10.0 million or
more and that has been designated by the Company as "Designated Senior Debt";
provided, however, that so long as the New Credit Facility remains in effect,
lenders holding a majority in aggregate amount of the loan commitments
thereunder shall have consented, in writing, to such designation of additional
Indebtedness as Designated Senior Debt.
"Permitted Junior Securities" means Equity Interests (as defined in the
Indenture) in the Company or debt securities that are unsecured and subordinated
to all Senior Debt (and any debt securities issued in exchange for Senior Debt)
to at least the same extent as, or to a greater extent than, the Note is
subordinated to Senior Debt pursuant to this Agreement (without limiting the
foregoing, such Permitted Junior Securities shall have no required principal
payments or equity redemption requirements until after the final maturity of all
Senior Debt).
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4.3. Liquidation; Dissolution; Bankruptcy. Upon any distribution to
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creditors of the Company whether in cash, properties, securities or otherwise,
in a liquidation or dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company, or its property, an assignment for the benefit of creditors or any
marshaling of the Company's assets and liabilities, the holders of Senior Debt
shall be entitled to receive payment in full in cash of all Obligations due in
respect of such Senior Debt (including interest after the commencement of any
such proceeding at the rate specified in the applicable Senior Debt whether or
not allowed as a claim in any such proceeding) before the holder of the Note
will be entitled to receive any payment with respect to the Note, and until all
Obligations with respect to Senior Debt are paid in full in cash, any
distribution to which the holder of the Note would be entitled shall be made to
the holders of Senior Debt (except that the holder of the Note may receive and
retain Permitted Junior Securities).
To the extent any payment of Senior Debt (whether by or on behalf of the
Company or any Subsidiary, as proceeds of security or enforcement of any right
of setoff or otherwise) is declared to be fraudulent or preferential, set aside
or required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then if such payment is
recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, the Senior Debt or part thereof
originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred. To the extent the obligation to
repay any Senior Debt is declared to be fraudulent, invalid, or otherwise set
aside under any bankruptcy, insolvency, receivership, fraudulent conveyance or
similar law, then the obligations so declared fraudulent, invalid or otherwise
set aside (and all other amounts that would come due with respect thereto had
such obligation not been affected) shall be deemed to be reinstated and
outstanding as Senior Debt for all purposes hereof as if such declaration,
invalidity or setting aside had not occurred.
4.4. Default on Designated Senior Debt. The Company also may not make any
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payment upon or in respect of the Note (except in Permitted Junior Securities)
if (i) a default in the payment of the principal of, premium, if any, or
interest on Senior Debt occurs and is continuing or (ii) any other default
occurs and is continuing with respect to Designated Senior Debt that currently,
or with the passage of time or giving of notice, permits holders of the
Designated Senior Debt as to which such default relates to accelerate its
maturity and, in the case of any such default described in this clause (ii), the
holder of the Note receives a notice of such default of the type referred to in
this clause (ii) (a "Payment Blockage Notice") from the Company or the holders
of any Designated Senior Debt. Payments on the Note may and shall be resumed (a)
in the case of a payment default, upon the date on which such default is cured
or waived in
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writing by the holders of the applicable Senior Debt and (b) in case of a
nonpayment default, the earlier of the date on which such nonpayment default is
cured or waived in writing by the holders of Designated Senior Debt or 179 days
after the date on which the applicable Payment Blockage Notice is received by
the holder of the Note, unless the maturity of any Designated Senior Debt has
been accelerated. No new period of payment blockage may be commenced under
clause (ii) above unless and until (i) 360 days have elapsed since the initial
effectiveness of the immediately prior Payment Blockage Notice and (ii) all
scheduled payments of principal of, premium, if any, and interest on the Note
that have come due have been paid in full in cash. No nonpayment default that
existed and was continuing on the date of delivery of any Payment Blockage
Notice to the holder of the Note shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall have been waived in
writing or cured for a period of not less than 90 days. In the event that the
Company makes any payment to any holder of the Note prohibited by the foregoing,
such payment will be required to be held in trust for and paid over to the
holders of Senior Debt (or the representative thereof). The holder of the Note
will not challenge or contest the enforceability or validity of the New Credit
Facility or any obligation, Lien (as defined in the Indenture) or encumbrance
thereunder.
4.5. Acceleration of Securities. If payment of the Note is accelerated
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because of an Event of Default, the Company shall promptly notify holders of
Senior Debt of the acceleration.
4.6. When Distribution Must Be Paid Over. In the event that the holder of
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the Note receives any payment of any Obligations with respect to the Note at a
time when such payment is prohibited by Section 4.4 hereof, and, if such holder
is not an Affiliate of the Company, such holder had actual knowledge at the time
that such payment is prohibited by Section 4.4 hereof, such payment shall be
held by such holder, in trust for the benefit of, and shall be paid forthwith
over and delivered, upon written request, to, the holders of Senior Debt as
their interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in cash in accordance with their terms, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Debt.
With respect to the holders of Senior Debt, any holder of the Note
undertakes to perform only such obligations on the part of any holder of the
Note as are specifically set forth in this Section 4, and no implied covenants
or obligations with respect to the holders of Senior Debt shall be read into
this Agreement against any holder of the Note.
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4.7. Notice by Company. The Company shall promptly notify the holder of
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the Note of any facts known to the Company that would cause a payment of any
Obligations with respect to the Note to violate this Section 4, but failure to
give such notice shall not affect the subordination of the Note to the Senior
Debt as provided in this Section 4.
4.8. Subrogation. After all Senior Debt is paid in full in cash and until
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the Note is paid in full, the holder of the Note shall be subrogated (equally
and ratably with all other Indebtedness pari passu with the Note, including the
Senior Subordinated Notes) to the rights of holders of Senior Debt to receive
distributions applicable to Senior Debt to the extent that distributions
otherwise payable to the holder of the Note have been applied to the payment of
Senior Debt. A distribution made under this Section 4 to holders of Senior Debt
that otherwise would have been made to the holder of the Note is not, as between
the Company and the holder of the Note, a payment by the Company on the Note.
4.9. Relative Rights. This Section 4 defines the relative rights of any
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holder of the Note and holders of Senior Debt. Nothing in this Section 4 shall:
(a) impair, as between the Company and any holder of the Note, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Note in accordance with its terms;
(b) affect the relative rights of any holder of the Note and
creditors of the Company other than their rights in relation to holders of
Senior Debt; or
(c) prevent the holder of the Note from exercising its available
remedies upon a Default or Event of Default, subject to the rights of
holders and owners of Senior Debt to receive distributions and payments
otherwise payable to the holder of the Note.
If the Company fails because of this Section 4 to pay principal of or interest
on the Note on the due date, the failure is still a Default or Event of Default;
provided, that, notwithstanding anything to the contrary set forth above, such
Default or Event of Default shall be deemed to be cured under the circumstances
set forth, and as provided, in Section 7.5 herein.
4.10. Subordination May Not Be Impaired by Company. No right of any
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holder of Senior Debt to enforce the subordination of the Indebtedness evidenced
by the Note shall be impaired by any act or failure to act by the Company the
holder of the
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Note or by the failure of the Company the holder of the Note to comply with this
Agreement.
The holder of the Note agrees that it will not challenge the validity,
enforceability or perfection of any Senior Debt or the liens, guarantees and
security interests securing the same and that as between the holders of the
Senior Debt on the one hand and the holder of the Note on the other, the terms
hereof shall govern even if all or part of the Senior Debt or such liens and
security interests are avoided, disallowed, subordinated, set aside or otherwise
invalidated in any judicial proceeding or otherwise, regardless of the theory
upon which such action is premised.
Without in any way limiting the generality of this Section 4.10, the
holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the holder of the Note, without incurring responsibility
to the holder of the Note and without impairing or releasing the subordination
provided in this Section 4 or the obligations hereunder of the holder of the
Note to the holders of Senior Debt, do any one or more of the following: (a)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Debt, the New Credit Facility or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding or
secured: (b) sell, exchange, release, foreclose against or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Debt; (c) release
any Person liable in any manner for the collection of Senior Debt; and (d)
exercise or refrain from exercising any rights against the Company, any
Subsidiary thereof or any other Person.
4.11. Distribution or Notice to Representative. Whenever a distribution
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is to be made or a notice given to holders of any Senior Debt, the distribution
may be made and the notice given to their Representative.
Upon any payment or distribution of assets of the Company referred to in
this Section 4, the holder of the Note shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction or upon any certificate of
such Representative(s) or of the liquidating trustee or agent or other Person
making any distribution to the holder of the Note for the purpose of
ascertaining the Persons entitled to participate in such distribution, all
holders of the Senior Debt and other Indebtedness of the Company, 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.
4.12. Authorization to Effect Subordination. If the holder of the Note
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does not file a proper proof of claim or proof of debt in the form required in
any proceeding
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related to the Company, its creditors or its property or otherwise of the type
referred to in Section 6.09 of the Indenture at least 30 days before the
expiration of the time to file such claim, the Representative is hereby
authorized to file an appropriate claim for and on behalf of the holder of the
Note.
4.13. Amendments. The provisions of this Section 4 shall not be amended
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or modified without the written consent of the Agent.
5. REPRESENTATIONS AND WARRANTIES.
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In order to induce the Investor to enter into this Agreement and to
purchase the Note, the Company hereby represents and warrants that, both before
and immediately after the date of this Agreement:
5.1. Organization and Good Standing. The Company and each of its
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Subsidiaries is duly organized and existing in good standing in its jurisdiction
of incorporation, is duly qualified as a foreign corporation and authorized to
do business in all other jurisdictions in which the nature of its business or
property makes such qualification necessary, except where the failure to so
qualify would not have a material adverse effect on the business of the Company
or such Subsidiary, and has the corporate power to own its properties and to
carry on its business as now conducted and as proposed to be conducted.
5.2. Authorization. The execution, delivery and performance by the
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Company of this Agreement and the issuance and sale by the Company of the Note
hereunder, (a) are within the Company's corporate power and authority, (b) have
been duly authorized by all necessary corporate proceedings, and (c) do not
conflict with or result in any breach of any provision of or the creation of any
lien upon any of the property of the Company or require any consent or approval
pursuant to the Certificate of Incorporation or bylaws of the Company, or any
law, regulation, order, judgment, writ, injunction, license, permit, agreement
or instrument.
5.3. Enforceability. The execution and delivery by the Company of this
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Agreement to which it is a party, and the issuance and sale by the Company of
the Note hereunder, will result in legally binding obligations of the Company,
enforceable against the Company in accordance with the respective terms and
provisions hereof and thereof, except to the extent that (a) such enforceability
is limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and (b)
the availability of the remedy of specific performance or injunctive or other
equitable relief will be subject to the discretion of the court before which any
proceeding therefor may be brought.
5.4. Governmental Approvals. The execution, delivery and performance by
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the Company of this Agreement to which it is a party, and the issuance and sale
by the
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Company of the Note hereunder, do not require the approval or consent of, or any
filing with, any governmental authority or agency prior to the date of this
Agreement other than those already obtained or filed.
6. INVESTMENT REPRESENTATIONS.
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(a) The Investor represents and warrants to the Company that (i) the
Investor is an "accredited investor" as such term is defined in Rule 501
promulgated under the Securities Act and (ii) the Investor is acquiring the Note
for investment, and not with a view to selling or otherwise distributing the
Note; provided, however, that the disposition of the Investor's property shall
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at all times be and remain in the Investor's control, subject to the provisions
of Section 8 hereof.
(b) The Investor understands that the Note has not been registered under
the Securities Act on the grounds that the offer and sale of the Note to the
Investor are exempt from the registration requirements of the Securities Act
under Section 4(2) thereof as a transaction not involving any public offering of
the Note. The Investor understands that the Company's reliance on such
exemption is predicated in part on the representations of the Investor which are
contained herein.
(c) The Investor understands that it must bear the economic risk of the
investment in the Note contemplated hereby for an indefinite period of time
because the Note has not been registered under the Securities Act and,
therefore, cannot be sold unless they are subsequently registered under the
Securities Act or an exemption from such registration is available.
7. DEFAULTS.
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7.1. Events of Default. Subject to Section 4 hereof, the holders of the
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Note(s) will be entitled to exercise the remedies provided by Section 7.2 hereof
in accordance with the terms thereof if any one or more of the following events
("Events of Default") shall occur:
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(a) the Company defaults for 30 days in the payment when due of
interest on the Note;
(b) the Company defaults in the payment when due of principal of or
premium, if any, on the Note;
(c) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company (or the
payment of which is guaranteed by the Company), whether such Indebtedness
or guarantee now exists, or is created after the date of this Agreement,
which default results
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in the acceleration of such Indebtedness prior to its express maturity and,
in each case, the principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness the maturity of which has
been so accelerated, aggregates $5.0 million or more (other than Existing
Indebtedness (as defined in the Indenture) to the extent it is secured by
or paid by the drawing against a letter of credit permitted to be issued
under the Indenture);
(d) an Event of Default (as defined in the Indenture) specified in
Sections 6.01(f), (g) or (h) of the Indenture shall have occurred.
7.2. Remedies. Subject to Section 4 hereof, upon the occurrence and
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continuance of any of the Events of Default under Section 7.1 hereof, in each
and every such case, the holder of the Note may proceed to protect and enforce
its rights by suit in equity, action at law and/or other appropriate proceedings
either for specific performance of any covenant, provision or condition
contained or incorporated by reference in this Agreement or in the Note, or in
aid of the exercise of any power granted in this Agreement or in the Note, and
(unless there shall have occurred an Event of Default under Section 7.1(d)
hereof, in which case the unpaid balance of the Note shall automatically become
due and payable) may by notice to the Company, declare all or any part of the
unpaid principal amount of the Note then outstanding to be forthwith due and
payable, and thereupon such unpaid principal amount or part thereof, together
with interest accrued thereon and any applicable prepayment charge and all other
sums, if any, payable under this Agreement or the Note shall become so due and
payable without presentation, presentment, protest or further demand or notice
of any kind, all of which are hereby expressly waived, and such holder or
holders may proceed to enforce payment of such amount or part thereof in such
manner as it or they may elect.
7.3. Waivers. The Company hereby waives, to the extent not prohibited by
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applicable law, (a) all presentments, demands for performance and notices of
nonperformance (except to the extent specifically required by the provisions
hereof), (b) any requirement of diligence or promptness on the part of the
holder of Note in the enforcement of its rights under the provisions of this
Agreement, and (c) any and all notices of every kind and description which may
be required to be given by any statute or rule of law.
7.4. Course of Dealing. No course of dealing between the Company or any
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of its Subsidiaries on the one hand, and the Investor or the holder of Note, on
the other hand, shall operate as a waiver of any of the Investor's or such
holder's rights under this Agreement. No delay or omission in exercising any
right under this Agreement shall operate as a waiver of such right or any other
right. A waiver on any one occasion shall not be construed as a bar to or
waiver of any right or remedy on any other occasion.
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7.5. Default Waiver. If the Company fails to make any payment of principal
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and/or interest due and owing under or in respect of the Note at any time while
such payment is prohibited by the subordination provisions contained in Section
4 herein, and such amounts (excluding amounts due after acceleration of the
Note, if accelerated) are paid within 30 days after the date on which such
payment is no longer prohibited under such Section 4, any Default or Event of
Default resulting from such nonpayment shall be deemed to have been cured on the
date on which payment of such amounts has been received and any acceleration of
any payment obligations under the Note after such nonpayment shall be deemed to
have been rescinded provided no other Default or Event of Default is then
continuing, without requirement, in either case, of any further notice or
consent of the holder of the Note.
8. RESTRICTIONS ON TRANSFER.
------------------------
8.1. Transfer.
--------
(a) The Investor shall not sell, assign, pledge or otherwise transfer
("Transfer") the Note to any other Person other than a Transfer in full of the
--------
Note (or in such smaller principal amounts with the consent of the Agent) to (i)
an Affiliate of the Investor or (ii) any Person holding, at the time of such
Transfer, an aggregate principal amount of not less than $5,000,000 of the
Senior Subordinated Notes then outstanding.
(b) In the event of any Transfer of the Note in breach of this Agreement,
commencing immediately upon the date of such attempted Transfer (a) such
Transfer shall be void and of no effect, (b) no interest payment of any kind or
any distribution pursuant to any liquidation, redemption or otherwise shall be
paid by the Company to the purported transferee in respect of such Note (all
such rights to payment by the transferor and/or the purported transferee being
deemed waived), and (c) neither the transferor nor the purported transferee
shall be entitled to exercise any rights with respect to such Note until such
Transfer in breach of this Agreement has been rescinded.
8.2. Notice of Transfer. Prior to any transfer of any Note, the holder
------------------
thereof shall be required to give written notice to the Company describing in
reasonable detail the manner and terms of the proposed transfer and the identity
of the proposed transferee (the "Transfer Notice"), accompanied by, if
---------------
reasonably determined by the Company to be necessary with respect to such
transfer, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP addressed to the Company, or other
counsel reasonably acceptable to the Company, that such transfer may be effected
without registration of such Notes under the Securities Act.
8.3. Restrictive Legends. Except as otherwise permitted by this Section
-------------------
8, each Security shall bear the following legend:
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"This Note has not been registered under the Securities Act of 1933, as
amended, and may not be sold or otherwise transferred in the absence of
such registration or an exemption therefrom under such Act or any
applicable state securities laws. Furthermore, this Note may be sold or
otherwise transferred only in compliance with the conditions specified in
the Note Purchase Agreement referred to hereinafter, a complete and correct
copy of which is available for inspection at the principal office of IMPAC
Group, Inc. and will be furnished without charge to the holder of this Note
upon written request."
9. NOTICES.
-------
Any notice provided for in this Agreement or the Note will be in writing
and will be deemed properly delivered if either personally delivered or sent by
telecopier, overnight courier or mailed certified or registered mail, return
receipt requested, postage prepaid, to the recipient at the address specified
below:
If to the Company, to ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
to the attention of the Chief Executive Officer, or at such other address
as such person shall have specified by notice actually received by the
addressor.
If to the Investor, then to the Investor at the address set forth on the
signature page hereto, or at such other address as the Investor shall have
specified by notice actually received by the addressor.
Any such notice shall be effective (a) if delivered personally or by telecopier
when received, (b) if sent by overnight courier, when receipted for, and (c) if
mailed, five (5) days after being mailed as described above.
10. AMENDMENTS AND WAIVERS.
----------------------
Any term of this Agreement or the Note may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the Company and the Investor and for amendments, the Agent under the
Loan Agreement, and any successor. Any amendment or waiver effected in
accordance with this Section 10 shall be binding upon the holder of the Note
sold pursuant to this Agreement and the Company. In connection with any
refinancing of the Loan Agreement, the parties hereto agree to execute any
amendments and/or restatements hereof as reasonably requested by any new
Lender(s) thereunder to evidence the continuing effect of the subordination
agreements hereunder.
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11. CONSTRUCTION.
------------
The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rule of strict
construction will be applied against any party.
12. MISCELLANEOUS.
-------------
This Agreement (including Exhibits and Schedules) sets forth the entire
understanding of the parties hereto with respect to the transactions
contemplated hereby and supersedes any prior written or oral understandings with
respect thereto. The parties hereto acknowledge and agree that in entering into
this Agreement they have not in any way relied upon any oral or written
agreements, statements, promises, information, arrangements, understandings,
representations or warranties, express or implied, not specifically set forth in
this Agreement. The invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of any other term or
provision hereof. The headings in this Agreement are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof. THIS
AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS WHICH TOGETHER SHALL
CONSTITUTE ONE INSTRUMENT, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE DOMESTIC SUBSTANTIVE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT
GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD
CAUSE THE APPLICATION OF THE DOMESTIC SUBSTANTIVE LAWS OF ANY OTHER STATE, AND
SHALL BIND AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS. ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION
OR PROCEEDING ARISING IN CONNECTION WITH ANY MATTER REFERRED TO IN THIS
AGREEMENT OR UNDER THIS AGREEMENT OR THE NOTE IS HEREBY WAIVED BY THE PARTIES
HERETO.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have caused this Agreement to be duly executed as of the date and year
first above written.
THE COMPANY:
-----------
IMPAC GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Title: Chief Financial Officer
THE INVESTOR:
------------
HERITAGE FUND II INVESTMENT
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Title: President
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-17-
List of Exhibits
----------------
Exhibit A Form of Note
Exhibit A
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Subordinated Note
This Note has not been registered under the Securities Act of 1933, as
amended, and may not be sold or otherwise transferred in the absence of
such registration or an exemption therefrom under such Act or any
applicable state securities laws. Furthermore, this Note may be sold or
otherwise transferred only in compliance with the conditions specified in
the Note Purchase Agreement referred to hereinafter, a complete and correct
copy of which is available for inspection at the principal office of IMPAC
Group, Inc. and will be furnished without charge to the holder of this Note
upon written request.
$4,900,000 November 17, 1999
IMPAC GROUP, INC., a Delaware corporation (hereinafter called the
"Company"), for value received, hereby promises to pay to HERITAGE FUND II
-------
INVESTMENT CORPORATION, a Delaware corporation ("Payee"), or its registered
-----
assigns, the entire principal amount of FOUR MILLION NINE HUNDRED THOUSAND
DOLLARS ($4,900,000), payable in the amounts and at the times specified in
Section 3 of the Note Purchase Agreement (as hereinafter defined) and with a
final maturity on March 31, 2006 (the "Maturity Date"), and to pay interest on
-------- ----
the unpaid principal amount hereof from the date hereof until and including the
payment in full of the unpaid principal amount hereof, such interest accruing
and compounding at the rate per annum set forth in Section 3.4(a) of the Note
Purchase Agreement (as hereinafter defined) (computed on the basis of actual
number of days elapsed and a 360-day year). The Company hereby promises to pay
such interest on the dates specified in the Note Purchase Agreement (as
hereinafter defined) until the obligation of the Company with respect to the
payment thereof shall be discharged. All payments of principal and interest
hereof shall be made in lawful money of the United States of America to the
account of the holder hereof upon presentation hereof at such address of the
holder hereof as such holder shall have designated to the Company in writing.
This Note is the Note of the Company issued pursuant to the Note Purchase
Agreement, dated as of November 17, 1999 (the "Note Purchase Agreement"),
---- -------- ---------
between the Company and the Payee. The holder of this Note is entitled to
enforce the provisions of
-2-
the Note Purchase Agreement and to enjoy the benefits thereof to the extent
provided therein and is subject to the obligations thereunder as a holder of a
Note.
The Company shall be permitted, at certain times and under certain
circumstances, to prepay all or any portion of this Note, together with all
accrued and unpaid interest thereon, and the maturity hereof may be accelerated
by the holder of the Note outstanding following an Event of Default (as defined
in the Note Purchase Agreement), all as provided in the Note Purchase Agreement,
to which reference is made for the terms and conditions of such provisions as to
prepayment and acceleration. No mandatory prepayments of this Note are required.
Any transfer of this Note permitted in accordance with the transfer
restriction provisions set forth in the Note Purchase Agreement is registrable
on the note register of the Company upon presentation at the principal office of
the Company accompanied by a written instrument of transfer in form satisfactory
to the Company duly executed by, or on behalf of, the holder hereof. This Note
may also be exchanged at such office for one or more Notes in any authorized
denominations, as requested by the holder, of a like aggregate unpaid principal
amount. Except as permitted in the Note Purchase Agreement, this Note may not be
transferred, negotiated or assigned.
Prior to due presentment for registration of transfer, the Company and any
agent of the Company may treat the person in whose name this Note is registered
as the owner hereof for the purpose of receiving payment of principal and
interest as herein provided and for all other purposes.
The holder of this Note, by acceptance hereof, agrees with the Company that
this Note and all payments hereunder shall be subordinate and junior in right of
payment to the prior payment in full in cash of all Senior Debt (as defined in
the Note Purchase Agreement) to the extent and in the manner provided in the
Note Purchase Agreement.
All indebtedness of the Company evidenced by this Note is a general
unsecured obligation of the Company and shall be pari passu in right of payment
---- -----
to the Indebtedness (as defined in the Note Purchase Agreement) of the Company
evidenced by the Senior Subordinated Notes (as defined in the Note Purchase
Agreement).
-3-
This Note shall be deemed to take effect as a sealed instrument under
the laws of the Commonwealth of Massachusetts and for all purposes shall be
construed in accordance with such laws.
IMPAC GROUP, INC.
By:
--------------------------------
Name:
Title: