<PAGE> 1
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended March 31, 1999 Commission File Number 33-60714
IVEX PACKAGING CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 76-0171625
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
100 Tri-State Drive 60069
Lincolnshire, Illinois (Zip Code)
(Address of Principal Executive Office)
Registrant's Telephone number, including area code: (847) 945-9100
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- -----
At April 30, 1999, there were 20,934,602 shares of common stock, par
value $0.01 per share, outstanding.
================================================================================
<PAGE> 2
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
IVEX PACKAGING CORPORATION
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
ASSETS MARCH 31, DECEMBER 31,
1999 1998
---- ----
<S> <C> <C>
Current Assets:
Cash and cash equivalents......................................... $ 6,111 $ 7,363
Accounts receivable trade, net of allowance....................... 81,927 76,699
Inventories....................................................... 84,784 77,509
Prepaid expenses and other........................................ 5,211 4,646
--------- ----------
Total current assets............................................ 178,033 166,217
--------- ----------
Property, Plant and Equipment:
Buildings and improvements........................................ 63,035 62,779
Machinery and equipment........................................... 313,958 308,549
Construction in progress.......................................... 32,599 22,705
--------- -----------
409,592 394,033
Less - accumulated depreciation................................... (173,623) (165,207)
--------- ----------
235,969 228,826
Land.............................................................. 12,432 12,538
--------- -----------
Total property, plant and equipment............................. 248,401 241,364
--------- ----------
Other Assets:
Goodwill, net of accumulated amortization......................... 87,429 85,823
Deferred income taxes............................................. 13,883 16,955
Management receivable............................................. 11,446 11,919
Miscellaneous..................................................... 35,523 33,867
--------- ----------
Total other assets.............................................. 148,281 148,564
--------- ----------
Total Assets......................................................... $ 574,715 $ 556,145
========= ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Current installments of long-term debt............................ $ 24,999 $ 23,312
Accounts payable and accrued invoices............................. 37,676 36,744
Accrued salary and wages.......................................... 10,794 11,789
Self insurance reserves........................................... 7,961 7,523
Accrued rebates and discounts..................................... 6,639 7,534
Accrued interest.................................................. 4,049 3,279
Other accrued expenses............................................ 16,123 13,959
--------- ----------
Total current liabilities....................................... 108,241 104,140
--------- ----------
Long-Term Debt....................................................... 417,949 409,071
--------- ----------
Other Long-Term Liabilities.......................................... 17,545 17,570
--------- ----------
Deferred Income Taxes................................................ 3,232 3,173
--------- ----------
Stockholders' Equity:
Common stock, $.01 par value - 45,000,000 shares authorized; 20,934,602 and
20,931,268 shares issued and outstanding at
March 31, 1999 and December 31, 1998 ........................... 209 209
Paid in capital in excess of par value............................ 339,152 339,098
Accumulated deficit............................................... (305,449) (311,642)
Accumulated other comprehensive income (loss)..................... (6,164) (5,474)
--------- -----------
Total stockholders' equity...................................... 27,748 22,191
--------- ----------
Total Liabilities and Stockholders' Equity........................... $ 574,715 $ 556,145
========= ==========
</TABLE>
The accompanying notes are an integral part of this statement.
2
<PAGE> 3
IVEX PACKAGING CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
1999 1998
---- ----
<S> <C> <C>
Net sales............................................................. $ 143,208 $ 136,168
Cost of goods sold.................................................... 106,016 104,671
-------------- ---------------
Gross Profit.......................................................... 37,192 31,497
-------------- ---------------
Operating expenses:
Selling............................................................... 9,367 7,286
Administrative........................................................ 10,538 8,538
Amortization of intangibles........................................... 645 316
-------------- ---------------
Total operating expenses 20,550 16,140
-------------- ---------------
Income from operations................................................ 16,642 15,357
Other income (expenses):
Interest expense.................................................... (7,250) (6,497)
Income from equity investments ..................................... 788
-------------- ---------------
Income before income taxes............................................ 10,180 8,860
Income tax provision.................................................. 3,987 3,545
-------------- ---------------
Net income............................................................ $ 6,193 $ 5,315
============== ===============
Earnings per share:
Basic:
Net income........................................................ $ 0.30 $ 0.26
============== ===============
Weighted average shares outstanding............................... 20,933,232 20,426,666
============== ===============
Diluted:
Net income........................................................ $ 0.29 $ 0.26
============== ===============
Weighted average shares outstanding............................... 21,041,258 20,651,819
============== ===============
</TABLE>
The accompanying notes are an integral part of this statement.
3
<PAGE> 4
IVEX PACKAGING CORPORATION
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
(DOLLARS IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
Paid In
Ivex Packaging Capital
Corporation in Excess of Accumulated
Common Stock Par Value Deficit
------------ --------- -------
Shares Amount
------ ------
<S> <C> <C> <C> <C>
Balance at December 31, 1997 20,426,666 $ 204 $ 328,322 $ (339,836)
Issuance of common stock 500,000 5 10,702
Exercise of common stock options 4,602 74
Net income 28,194
Other comprehensive loss (foreign currency
translation adjustment)
Comprehensive income (loss)
---------- ----------- ----------- -----------
Balance at December 31, 1998 20,931,268 209 339,098 (311,642)
Exercise of common stock options 3,334 54
Net income 6,193
Other comprehensive loss
Comprehensive income (loss)
---------- ----------- ----------- -----------
Balance at March 31, 1999 20,934,602 $ 209 $ 339,152 $ (305,449)
========== =========== =========== ===========
<CAPTION>
Accumulated
Other Stockholders'
Comprehensive Equity Comprehensive
Income (Loss) (Deficit) Income (Loss)
------------- --------- -------------
<S> <C> <C>
Balance at December 31, 1997 $ (859) $ (12,169)
Issuance of common stock 10,707
Exercise of common stock options 74
Net income 28,194 $ 28,194
Other comprehensive loss (foreign currency
translation adjustment) (4,615) (4,615) (4,615)
-----------
Comprehensive income (loss) $ 23,579
----------- ----------- ===========
Balance at December 31, 1998 (5,474) 22,191
Exercise of common stock options 54
Net income 6,193 $ 6,193
Other comprehensive loss (690) (690) (690)
-----------
Comprehensive income (loss) $ 5,503
----------- ----------- ===========
Balance at March 31, 1999 $ (6,164) $ 27,748
=========== ===========
</TABLE>
The accompanying notes are an integral part of this statement.
4
<PAGE> 5
IVEX PACKAGING CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31,
1999 1998
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net income...................................................................... $ 6,193 $ 5,315
Adjustments to reconcile net income to net cash from operating activities:
Depreciation of properties................................................. 8,620 6,904
Amortization of intangibles and debt issue costs........................... 860 494
Non-cash income from equity investments.................................... (788)
Non-cash interest (income) expense......................................... (375)
Deferred income taxes...................................................... 3,072 2,198
---------- ----------
17,582 14,911
Change in operating assets and liabilities:
Accounts receivable......................................................... (6,445) (5,007)
Inventories................................................................. (6,061) (6,798)
Prepaid expenses and other assets........................................... (563) 1,133
Accounts payable............................................................ 347 330
Accrued expenses and other liabilities...................................... (2,315) (912)
---------- ----------
Net cash from operating activities............................................ 2,545 3,657
---------- ----------
Cash flows from financing activities:
Payment of debt................................................................. (5,831) (4,125)
Proceeds from revolving credit facility......................................... 15,900 12,200
Management receivable........................................................... 473 (3,626)
Payment of debt issue costs..................................................... (140)
Other, net...................................................................... (272) (253)
---------- ----------
Net cash from financing activities............................................ 10,270 4,056
---------- ----------
Cash flows from investing activities:
Purchase of property, plant and equipment....................................... (12,255) (6,652)
Acquisitions.................................................................... (1,735)
Other, net...................................................................... (77) (301)
---------- ----------
Net cash used by investing activities......................................... (14,067) (6,953)
---------- ----------
Net increase (decrease) in cash and cash equivalents............................... (1,252) 760
Cash and cash equivalents at beginning of period................................... 7,363 5,989
---------- ----------
Cash and cash equivalents at end of period......................................... $ 6,111 $ 6,749
========== ==========
Supplemental cash flow disclosures:
Cash paid during the period for:
Interest...................................................................... $ 6,639 $ 6,474
Income taxes.................................................................. 1,631 1,875
</TABLE>
The accompanying notes are an integral part of this statement.
5
<PAGE> 6
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
NOTE 1 - ACCOUNTING AND REPORTING POLICIES
In the opinion of management, the information in the accompanying
unaudited consolidated financial statements reflects all adjustments necessary
for a fair statement of results for the interim periods. These interim financial
statements should be read in conjunction with the consolidated financial
statements and the notes thereto included in the Annual Report on Form 10-K for
the year ended December 31, 1998 (the "Form 10-K") of Ivex Packaging Corporation
("Ivex" or the "Company"). IPC, Inc. ("IPC") is the only direct subsidiary of
Ivex and is wholly owned.
The Company's accounting and reporting policies are summarized in Note 2
to the consolidated financial statements of the Ivex Form 10-K.
Accounts Receivable
Accounts receivable at March 31, 1999 and December 31, 1998 consisted of
the following:
<TABLE>
<CAPTION>
March 31, December 31,
1999 1998
---- ----
<S> <C> <C>
Accounts receivable................................... $ 85,079 $ 79,566
Less - Allowance for doubtful accounts................ (3,152) (2,867)
---------- ------------
$ 81,927 $ 76,699
========= ==========
</TABLE>
Inventories
Inventories at March 31, 1999 and December 31, 1998 consisted of the
following:
<TABLE>
<CAPTION>
March 31, December 31,
1999 1998
---- ----
<S> <C> <C>
Raw materials......................................... $ 34,661 $ 34,136
Finished goods........................................ 50,123 43,373
--------- ----------
$ 84,784 $ 77,509
========= ==========
</TABLE>
NOTE 2 - LONG TERM DEBT
At March 31, 1999 and December 31, 1998, the long-term debt of the
Company was as follows:
<TABLE>
<CAPTION>
March 31, December 31,
1999 1998
---- ----
<S> <C> <C>
Senior credit facility....................................... $ 401,450 $ 390,925
Industrial revenue bonds..................................... 39,648 39,667
Other ....................................................... 1,850 1,791
--------- ---------
Total debt outstanding................................. 442,948 432,383
Less - Current installments of long-term debt................ (24,999) (23,312)
---------- ---------
Long-term debt......................................... $ 417,949 $ 409,071
========== =========
</TABLE>
6
<PAGE> 7
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
NOTE 3 - REPORTING SEGMENTS
During 1999, Ivex realigned its operating segments in connection with
the formation of the Technical Packaging Group which is comprised of the
industrial packaging and medical & electronics product groups. The Company is
divided into the Consumer Packaging and Technical Packaging operating segments
based on the end use of the packaging product. All historical information has
been restated to reflect the realignment.
The reconciliation of the operating segment information to the Company's
consolidated financial statements is as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
----------------------
1999 1998
--------- ---------
<S> <C> <C>
Net Sales:
Consumer Packaging ..................... $ 88,463 $ 66,846
Technical Packaging .................... 54,745 69,322
--------- ---------
Total .............................. $ 143,208 $ 136,168
========= =========
Income Before Income Taxes:
EBITDA:
Consumer Packaging ................. $ 19,964 $ 13,468
Technical Packaging ................ 8,291 10,782
Corporate expenses ................. (2,348) (1,673)
--------- ---------
Total ......................... 25,907 22,577
Depreciation expense ................... (8,620) (6,904)
Amortization expense ................... (645) (316)
Income from equity investments.......... 788
Interest expense ....................... (7,250) (6,497)
--------- ---------
Income before income taxes ......... $ 10,180 $ 8,860
========= =========
Purchase of Property, Plant and Equipment:
Consumer Packaging ..................... $ 6,756 $ 3,435
Technical Packaging..................... 5,144 2,633
Corporate............................... 355 584
--------- ---------
Total .............................. $ 12,255 $ 6,652
========= =========
<CAPTION>
MARCH 31,
----------------------
1999 1998
<S> <C> <C>
Total Assets: --------- ---------
Consumer Packaging ..................... $ 363,488 $ 206,292
Technical Packaging .................... 168,288 167,737
Corporate .............................. 42,939 64,845
--------- ---------
Total .............................. $ 574,715 $ 438,874
========= =========
</TABLE>
7
<PAGE> 8
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
The Company's historical financial results for the following quarters of
1998 have been restated to reflect the Consumer Packaging and Technical
Packaging operating segments as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
----------------------------------------
DECEMBER 31, SEPTEMBER 30, JUNE 30,
1998 1998 1998
------------ ------------- ---------
<S> <C> <C> <C>
Net Sales:
Consumer Packaging ........................................................ $ 92,379 $ 92,681 $ 90,014
Technical Packaging ....................................................... 61,332 67,272 66,605
------------ ------------ ----------
Total ................................................................. $ 153,711 $ 159,953 $ 156,619
=========== ============ ==========
Income Before Income Taxes:
EBITDA:
Consumer Packaging .................................................... $ 18,815 $ 20,574 $ 20,870
Technical Packaging ................................................... 10,378 10,798 9,688
Corporate expenses .................................................... (1,738) (1,961) (2,250)
----------- ------------ ----------
Total ............................................................ 27,455 29,411 28,308
Depreciation expense ...................................................... (7,689) (8,593) (8,642)
Amortization expense ...................................................... (699) (644) (537)
Special benefit ........................................................... 2,766
Interest expense .......................................................... (7,609) (7,782) (7,673)
----------- ------------ ----------
Income before income taxes ...................................... $ 11,458 $ 12,392 $ 14,222
=========== ============ ==========
Purchase of Property, Plant and Equipment:
Consumer Packaging ........................................................ $ 6,343 $ 9,406 $ 5,354
Technical Packaging ....................................................... 4,512 3,076 3,873
Corporate ................................................................. 286 577 58
----------- ------------ ----------
Total ................................................................. $ 11,141 $ 13,059 $ 9,285
=========== ============ ==========
<CAPTION>
DECEMBER 31, SEPTEMBER 30, JUNE 30,
1998 1998 1998
----------- ------------ ----------
<S> <C> <C> <C>
Total Assets:
Consumer Packaging ........................................................ $ 347,660 $ 322,478 $ 312,202
Technical Packaging ....................................................... 160,838 164,021 163,556
Corporate ................................................................. 47,647 56,760 57,196
----------- ------------ ----------
Total ................................................................. $ 556,145 $ 543,259 $ 532,954
=========== ============ ==========
</TABLE>
NOTE 4-SUBSEQUENT EVENT
On April 20, 1999, Ivex acquired the electronics packaging business of
Pactuco, Inc., headquartered in Lompoc, California for a $21,000 initial payment
and payments of $1,000 per year for the next five years. Based on the operating
results of the business, the purchase price could be increased by as much as
$3,000 per year over the next three years. With manufacturing operations in
California, Malaysia and Hong Kong, this business provides technical packaging
solutions for the computer and electronics industries and has annual sales of
$35,000. The acquisition was financed through revolving credit borrowings under
the Senior Credit Facility, as hereinafter defined, and will be recorded using
the purchase method of accounting.
8
<PAGE> 9
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
The following discussion addresses the consolidated financial statements of the
Company. The Company owns 100% of the common stock of IPC. The Company is a
holding company with no operations of its own and IPC has no contractual
obligations to distribute funds to the Company. References to the Company or
Ivex herein reflect the consolidated results of Ivex Packaging Corporation.
RESULTS OF OPERATIONS - FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND 1998
Net Sales
The Company's net sales increased by 5.2% during the first quarter of
1999 over the Company's net sales during the corresponding period in 1998. The
increase primarily resulted from increased unit sales volume of extruded sheet
and film and increased sales of converted plastic and paper products for food,
medical and electronics applications. The increase in sales due to the second
quarter 1998 acquisition of Ultra Pac, Inc. ("Ultra Pac") and the fourth quarter
1998 acquisition of the paper packaging business of Bleyer Industries, Inc.
("Bleyer Paper") was substantially offset by the fourth quarter 1998 disposition
of the Company's Detroit paper mill ("Detroit"). See additional discussion in
"Operating Segments".
Gross Profit
The Company's gross profit increased 18.1% during the first quarter of
1999 compared to the corresponding period in the prior year primarily as a
result of the increased sales volume and reduced raw material costs in all
businesses, particularly OPS extrusion and thermoforming. The incremental
effects from Ultra Pac and Bleyer Paper were partially offset by the disposition
of Detroit. Gross profit margin increased to 26.0% during the first quarter of
1999 compared to 23.1% during the first quarter of 1998. The increase in gross
profit margin primarily resulted from the reduced raw material costs in all
businesses and a shift in product mix due to the addition of higher gross profit
margin Ultra Pac and Bleyer Paper products and the elimination of lower gross
profit margin Detroit products.
Operating Expenses
Selling and administrative expenses increased 25.8% during the first
quarter of 1999 primarily as a result of the Ultra Pac acquisition and increased
corporate expenses. As a percentage of net sales, selling and administrative
expenses increased to 13.9% during the first quarter of 1999 compared to 11.6%
during the same period in the prior year. This increase is primarily because of
the addition of Ultra Pac with higher selling expenses as a percentage of net
sales, the elimination of Detroit with lower operating expenses as a percentage
of net sales, and the lower net sales of the Technical Packaging segment.
Amortization of intangibles increased 104.1% during the first quarter of
1999 compared to the same period in 1998 primarily as a result of increased
goodwill and non-compete agreement amortization associated with the Ultra Pac
and Bleyer Paper acquisitions.
Income from Operations
Income from operations and operating margin were $16.6 million and
11.6%, respectively, during the first quarter of 1999 compared to income from
operations and operating margin of $15.4 million and 11.3%, respectively, during
the first quarter of 1998. The increase in operating income and margin was
primarily the result of the improved sales volume and decreased raw material
costs of the Company's extruded sheet and film business, converted plastic and
paper products for food applications, and converted plastic products for medical
and electronics applications.
9
<PAGE> 10
Interest Expense
Interest expense during the first quarter of 1999 was $7.3 million
compared to $6.5 million during the same period in 1998. The increase is
primarily due to greater indebtedness resulting from the Ultra Pac and Bleyer
Paper acquisitions in 1998 and increased working capital.
Income Taxes
The Company's effective tax rate for the first quarter of 1999
approximated 39% compared with 40% for the first quarter of 1998. The decrease
in effective tax rate reflects a lower aggregate effective rate for foreign
operations.
Net Income
Net income increased to $6.2 million during the first quarter of 1999
compared to net income of $5.3 million in the prior year. The increase in net
income is primarily the result of the improved income from operations.
Earnings Per Share
Diluted earnings per share increased to $0.29 during the first quarter
of 1999 compared to earnings per share of $0.26 during the first quarter of
1998. The increase is the result of the increased net income.
OPERATING SEGMENTS
Net Sales
The following table sets forth information with respect to net sales of
the Company's operating segments for the periods presented:
<TABLE>
<CAPTION>
Three Months Ended March 31,
----------------------------------------------------
(dollars in thousands)
% of % of
1999 Net Sales 1998 Net Sales
----------- --------- ----------- ---------
<S> <C> <C> <C> <C>
Consumer Packaging............................ $ 88,463 61.8 $ 66,846 49.1
Technical Packaging........................... 54,745 38.2 69,322 50.9
----------- ----- ----------- -----
Total................................... $ 143,208 100.0 $ 136,168 100.0
=========== ===== =========== =====
</TABLE>
Consumer Packaging net sales increased by 32.3% during the first quarter
of 1999 from the corresponding period in 1998. The increase primarily results
from incremental sales associated with the Ultra Pac and Bleyer Paper
acquisitions and increased sales of converted plastic and paper products for
food applications. During the first quarter of 1999, sales of converted plastic
and paper products in the U.S. (excluding the sales relating to Ultra Pac and
Bleyer Paper) increased approximately 4.0% while such sales outside of the U.S.
(Europe, Canada and Mexico) increased 21.3% compared to the first quarter of
1998. The largest increases in sales outside of the U.S. occurred in the United
Kingdom and Continental Europe.
Technical Packaging net sales decreased by 21.0% during the first
quarter of 1999 from the corresponding period in 1998, primarily due to the
disposition of Detroit. Additionally, the decrease is due to lower unit volume
of the Company's protective packaging and surface protection products as a
result of, among other things, increased competition for certain of these
products. As expected, the Company continues to experience significant unit
volume decreases in its coated and laminated products as a result of the
declining markets for these products. Sales unit volume
10
<PAGE> 11
and selling prices for the Company's recycled and specialty paper were
consistent during the first quarter of 1999 compared to the first quarter of
1998.
EBITDA
EBITDA includes income from operations adjusted to exclude depreciation
and amortization expenses. The Company believes that EBITDA provides additional
information for determining its ability to meet future debt service
requirements. However, EBITDA is not a defined term under Generally Accepted
Accounting Principles ("GAAP") and is not indicative of operating income or cash
flow from operations as determined under GAAP.
The following table sets forth information with respect to EBITDA of the
Company's operating segments for the periods presented.
<TABLE>
<CAPTION>
Three Months Ended March 31,
-------------------------------------------------
(dollars in thousands)
% of % of
1999 Net Sales 1998 Net Sales
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Consumer Packaging............................ $ 19,964 22.6 $ 13,468 20.1
Technical Packaging........................... 8,291 15.1 10,782 15.6
Corporate expenses............................ (2,348) - (1,673) -
--------- ---- --------- -----
Total................................... $ 25,907 18.1 $ 22,577 16.6
========= ==== ========= =====
</TABLE>
The Company's EBITDA increased 14.7% from $22.6 million to $25.9 million
and EBITDA margin increased from 16.6% to 18.1% during the first quarter of 1999
compared to the same period in 1998. The 48.2%, or $6.5 million, increase in
Consumer Packaging's EBITDA in the current quarter is primarily attributable to
the incremental EBITDA from Ultra Pac and Bleyer Paper, increased sales volume
and reduced raw material costs. The decrease in Technical Packaging's EBITDA of
23.1%, or $2.5 million is primarily due to the disposition of Detroit and
decreased net sales of the Company's protective packaging, coated and laminated
and surface protection product lines. The increase in Corporate expenses is
primarily the result of an increase in human resources required as a result of
the Company's growth.
LIQUIDITY AND CAPITAL RESOURCES
At March 31, 1999, the Company had cash and cash equivalents of $6.1
million and availability under the revolving credit portion of its Senior Credit
Facility (the "Senior Credit Facility") was $90.7 million. The Company's working
capital at March 31, 1999 was $69.8 million.
The Company's primary short-term and long-term operating cash
requirements are for debt service, working capital, acquisitions and capital
expenditures. The Company expects to rely on cash generated from operations
supplemented by revolving credit facility borrowings under the Senior Credit
Facility to fund the Company's principal short-term and long-term cash
requirements.
The Senior Credit Facility is comprised of a $150.0 million Term A Loan,
a $150.0 million Term B Loan and a $265.0 million revolving credit facility (up
to $65.0 million of which may be in the form of letters of credit). The Term A
Loan is required to be repaid in quarterly payments totaling $21.25 million in
1999, $25.0 million in 2000, $26.25 million in 2001, $31.25 million in 2002 and
$26.25 million in 2003, and the Term B Loan is required to be repaid in
quarterly payments totaling $1.5 million per annum through September 30, 2003
and four installments of $35.25 million on December 31, 2003, March 31, 2004,
June 30, 2004 and September 30, 2004. The interest rate of the Senior Credit
Facility can be, at the election of IPC, based upon LIBOR or the Adjusted Base
Rate, as defined therein, and is subject to certain performance pricing
adjustments. The Term A Loan and loans under the revolving credit facility bear
interest at rates up to LIBOR plus 1.625% or the Adjusted Base Rate plus 0.625%.
As of March 31, 1999, such rate
11
<PAGE> 12
was LIBOR plus 1.125%. The Term B Loan bears interest at rates up to LIBOR plus
2.0% or the Adjusted Base Rate plus 1.0%. As of March 31, 1999, such rate for
the Term B Loan was LIBOR plus 1.75%. Borrowings are secured by substantially
all the assets of the Company and its subsidiaries. The revolving credit
facility and Term A Loan will terminate on September 30, 2003 and the Term B
Loan will terminate on September 30, 2004. Under the Senior Credit Facility, IPC
is required to maintain certain financial ratios and levels of net worth and
future indebtedness and dividends are restricted, among other things. The
Company believes it is currently in compliance with the terms and conditions of
the Senior Credit Facility in all material respects.
IPC's industrial revenue bonds require monthly interest payments and are
due in varying amounts and dates through 2009. Certain letters of credit under
the Senior Credit Facility provide credit enhancement for IPC's industrial
revenue bonds.
In order to reduce the impact of changes in interest rates on its
variable rate debt, the Company entered into interest rate derivative
instruments discussed in "Quantitative and Qualitative Disclosures About Market
Risk".
The Company made capital expenditures of $12.3 million and $6.7 million
in the three months ended March 31, 1999 and 1998, respectively. At March 31,
1999, the Company has a significant number of capital projects ongoing in all
major business groups. Capital spending for 1999 is expected to be slightly
greater than $40.0 million.
On April 20, 1999, Ivex acquired the electronics packaging business of
Pactuco, Inc., headquartered in Lompoc, California for a $21.0 million initial
payment and payments of $1.0 million per year for the next five years. Based on
the operating results of the business, the purchase price could be increased by
as much as $3.0 million per year over the next three years. With manufacturing
operations in California, Malaysia and Hong Kong, this business provides
technical packaging for the computer and electronics industries and has annual
sales of $35.0 million. The acquisition was financed through revolving credit
borrowings under the Senior Credit Facility and will be recorded using the
purchase method of accounting.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In June 1998, the FASB issued FAS 133, "Accounting for Derivatives and
Similar Financial Instruments and Hedging Activities," which requires all
derivatives to be measured at fair value and recognized in the statement of
financial position as assets or liabilities. In addition, all hedges fall into
one of two categories - fair value and cash flow hedges - which determines
whether changes in fair value of the hedge are recorded in net income or in
other comprehensive income. The statement is effective for fiscal years
beginning after June 15, 1999. The Company is currently evaluating the impact of
the adoption of FAS 133 on the Company's financial position and results of
operations.
YEAR 2000
The Year 2000 issue refers to computer equipment which uses two digits
rather than four to define a given year and which therefore might read a date
using "00" as the year 1900 rather than the year 2000. As the Year 2000
approaches, such systems may be unable to process certain date based
information. This could result in system failure or miscalculations causing
disruptions of operations and the inability to engage in normal business
activities.
The Company initiated a company-wide program to prepare its computer
systems and applications for the year 2000. The initial focus of the Company's
compliance contained the following steps: assessment of the issue; planning the
conversion; plan implementation; and testing. Those systems determined to be at
risk were prioritized and plans were put in place to upgrade systems by
remediation, replacements or outsourcing. Through March 1999, the assessment and
planning phases have been completed for all systems. A majority of the Company's
facilities has already implemented or is in the process of implementing one
information technology system (the "IT system"). The implementation of the IT
system began in the mid-1990's as a strategic effort to upgrade the Company's
computer systems. Based on vendor representation and in-house testing, the
Company believes the IT system is Year 2000
12
<PAGE> 13
compliant. All facilities that are not implementing the IT system have
information technology systems that are believed to be Year 2000 compliant,
based on vendor representation and in-house testing. The Company's objective is
to become Year 2000 compliant with all mission critical activities and systems
by September 1999, allowing substantial time for further testing, verification
and the final completion of less important systems by fourth quarter 1999.
Contingency plans are currently being developed.
In addition to the information technology system review noted above, the
Company has initiated processes to review and to modify where appropriate, other
areas impacted by Year 2000. These areas include, but are not limited to,
personal computer hardware and software, remote location access to information
technology systems, facility management and certain non-information technology
issues, such as the extent to which embedded chips are used in machinery and
equipment used in operations. In relation to the Company's vendors, the Company
is in the process of communicating with its significant vendors to determine the
extent to which the Company is vulnerable to those third parties' failure to
remediate their own Year 2000 compliance issues. The Company expects to complete
its evaluation by September 1999. The Company cannot give any assurances that
another company's failure to become compliant will not have an effect on the
Company. However, the Company believes that any noncompliance by its vendors
should not have a material adverse effect on the Company, although there can be
no assurances that this will be the case.
The Company has determined that it has no exposure to contingencies
related to the Year 2000 issue for products it has sold.
The Company expects to incur internal and external expenses related to
its remediation of the Year 2000 issue. Testing and remediation efforts are
expected to cost approximately $180,000, of which $105,000 has already been
incurred. These costs will be treated as period costs and expensed as incurred.
Although no assurances can be given as to the Company's compliance,
particularly as it relates to third-parties, based upon the progress to date,
the Company does not expect that either future costs of modifications or the
consequences of any unsuccessful modifications will have a material adverse
effect on the Company's financial position or results of operations.
Accordingly, the Company feels that the most reasonably likely worst case Year
2000 scenario would not have a material adverse effect on the Company's
financial position or results of operations, although there can be no assurances
that this will be the case.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Foreign Exchange
The Company uses primarily foreign exchange forward contracts to hedge
its exposure from adverse changes in foreign exchange rates. A 10% unfavorable
movement in the foreign exchange rates would not expose the Company to material
losses in earnings or cash flows.
Interest Rates
The Company uses interest rate swaps and collars to modify its exposure
to interest rate movements and to reduce borrowing costs. The Company's net
exposure interest rate risk consists of floating rate debt instruments that are
benchmarked to LIBOR. As of March 31, 1999, the Company had $320 million
notional value of interest rate derivatives outstanding (described below). A 10%
unfavorable movement in LIBOR rates would not expose the Company to material
losses of earning or cash flows.
The Company has entered into interest rate swap agreements with a group
of banks having notional amounts totaling $160.0 million and various maturity
dates through November 5, 2002. These agreements effectively fix the Company's
LIBOR base rate for $160.0 million of the Company's indebtedness at rates from
5.33% to 6.12% during this period. The Company entered into no cost interest
rate collar agreements with a group of banks having notional amounts totaling
$100.0 million through November 5, 2002. These collar agreements effectively fix
the LIBOR base
13
<PAGE> 14
rate for $100.0 million of the Company's indebtedness at a maximum of 7.00% and
allow for the Company to pay the market LIBOR from a floor of 5.55% to the
maximum rate. If LIBOR falls below 5.55%, the Company is required to pay the
floor rate of 5.55%. The Company has also entered into no cost interest rate
collar agreements with a group of banks having notional amounts totaling $60.0
million through November 5, 2001. These collar agreements effectively fix the
LIBOR base rate for $60.0 million of the Company's indebtedness at a maximum of
5.31% and allow for the Company to pay the market LIBOR from a floor of 4.47% to
the maximum rate. If LIBOR falls below 4.47%, the Company is required to pay the
floor rate of 4.47%. Income or expense related to settlements under these
agreements is recorded as adjustments to interest expense in the Company's
financial statements. The fair market value of the Company's derivative
instruments outlined above approximates a loss of $3.0 million as of March 31,
1999 and is based upon the amount at which it could be settled with a third
party, although the Company has no current intention to trade any of these
instruments and plans to hold them as hedges for the Senior Credit Facility.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital Resources and -
Year 2000" constitute "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995 (the "Reform Act"). Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors which may cause the actual results, performance or achievements of
the Company to be materially different from any future results, performance or
achievements expressed or implied by such forward-looking statements. Such
factors include, among others, the Company's actual performance, highly
leveraged financial condition, exposure to market risk and readiness for the
Year 2000 issue (see "-- Liquidity and Capital Resources, Quantitative and
Qualitative Disclosures About Market Risk and - Year 2000" above).
14
<PAGE> 15
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
From time to time Ivex and its subsidiaries are involved in various
litigation matters arising in the ordinary course of business. Ivex believes
that none of the matters in which Ivex or its subsidiaries are currently
involved, either individually or in the aggregate, is material to Ivex or IPC.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS.
On February 10, 1999, the Corporation adopted a shareholder rights plan
pursuant to which each holder of a share of common stock of the Corporation was
distributed a right to purchase from the Company certain securities of the
Company in accordance with the terms of the Rights Agreement, dated as of
February 10, 1999, between Ivex Packaging Corporation and First Chicago Trust
Company of New York, as Rights Agent.
ITEM 5. OTHER INFORMATION.
On February 10, 1999, the Corporation adopted a shareholder rights plan
and executed the Rights Agreement, dated as of February 10, 1999 with First
Chicago Trust Company of New York, as Rights Agent.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) 10.55 Lease Agreement, dated as of April 16, 1999, between Pactuco
Acquisition, Inc. and Gowing Leasing Company.
(b) A Report on Form 8-K was filed with the Securities and Exchange
Commission on March 3, 1999 in connection with the adoption of the Corporation's
Shareholder Rights Plan.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
IVEX PACKAGING CORPORATION
By: /s/ Frank V. Tannura
---------------------------------
Frank V. Tannura
Executive Vice President and
Principal Financial Officer
April 30, 1999
(Date)
15
<PAGE> 1
EXHIBIT 10.55
L E A S E
This Lease is made and entered into as of the 16th day of
April, 1999, by and between GOWING LEASING COMPANY, a general partnership,
having an address at 1641 West Central Avenue, Lompoc, California 93436
("Landlord") and PACTUCO ACQUISITION, INC., a Delaware corporation, having an
address at 1641 West Central Avenue, Lompoc, California 93436 ("Tenant").
Landlord and Tenant mutually covenant and agree as follows:
ARTICLE I
GRANT AND TERM
I.1 Landlord, for and in consideration of the rents herein
reserved and the covenants and agreements herein contained which are to be
performed by Tenant, hereby leases to Tenant, and Tenant hereby leases from
Landlord, the real estate and improvements thereon commonly known as 1641 West
Central Avenue, Lompoc, California 93436 and more particularly described on
Exhibit A attached hereto and made a part hereof, together with all rights,
privileges and appurtenances thereto (collectively the "Demised Premises").
I.2 Subject to the terms and provisions of Section 1.3 hereof,
this Lease shall commence on the Commencement Date (as hereinafter defined) and
expire on April 30, 2004 (the "Expiration Date"), unless sooner terminated or
extended as hereinafter provided.
I.3 Reference is made to that certain Assets Purchase
Agreement, dated as of April 16, 1999, by and between Pactuco, Inc. ("Pactuco"),
as seller, and Tenant, as buyer (the "Assets Purchase Agreement"). This Lease is
contingent upon Tenant acquiring all of the assets of the plastic packaging
business of Pactuco pursuant to the Assets Purchase Agreement, and the
commencement date (the "Commencement Date") shall be the date of the closing of
the sale contemplated thereby (the "Closing"). Landlord shall be required to
deliver possession of the Demised Premises to Tenant at the Closing.
I.4 So long as Tenant is not in default under the covenants
and agreements of this Lease, Tenant's quiet and peaceable enjoyment of the
Demised Premises shall not be disturbed or interfered with by Landlord or by any
person claiming by, through or under Landlord.
I.5 So long as Tenant is not in default under the covenants
and agreements of this Lease, Tenant shall have the right to extend this Lease
for three (3) additional terms of five (5) years each (respectively, the "First
Extended Term", the "Second Extended Term" and the "Third Extended Term"), upon
the terms and conditions contained herein. Tenant shall give Landlord notice of
its intent to extend at least one hundred and twenty (120) days prior to the
expiration of the previous term.
<PAGE> 2
ARTICLE II
RENT
II.1 Throughout the term of this Lease, Tenant shall pay to or
upon the order of Landlord base rent ("Rent") as follows:
(a) for the period beginning on the Commencement
Date and ending on April 15, 2002, Rent shall be payable in monthly installments
of Forty Thousand Nine Hundred Ninety and 00/100 Dollars ($40,990.00); and
(b) from and after April 15, 2002 and on each one
(1) year anniversary of April 15, 2002 (including during the First Extended
Term, the Second Extended Term and the Third Extended Term) (the "Anniversary"),
Rent shall be adjusted in accordance with this Section 2.1(b). During such
period, Rent shall be an amount equal to $40,990.00 multiplied by the Escalation
Factor (hereinafter defined). For the purposes hereof, the Escalation Factor
shall be calculated by subtracting an amount equal to the Consumer Price Index
of the Bureau of Labor Statistics of the U.S. Department of Labor for Los
Angeles-Riverside-Orange County, California (the "CPI") for April, 1999 from the
CPI for the month and year of the Anniversary. The difference shall be added to
or subtracted from, as the case may be, the number one (1), which sum shall be
the Escalation Factor. The new Rent so calculated shall be payable in accordance
with this Article II.
The first monthly installment of Rent, or a prorated portion thereof in the
event the Commencement Date is not on the first day of the month, shall be paid
to Landlord on the Commencement Date. Thereafter, each monthly installment of
Rent shall be due and payable on the first day of each successive month during
the term.
II.2 All sums due Landlord hereunder (including Rent and
additional rent as herein provided) shall be paid at Landlord's address as first
above written, or at such other place as Landlord may designate in writing from
time to time. All sums due Landlord shall be paid without deduction, set-off,
discount or abatement, except as otherwise provided herein and as permitted
pursuant to the Assets Purchase Agreement, in lawful money of the United States.
Each payment of sums due Landlord hereunder which shall not be paid when due
shall bear
2
<PAGE> 3
interest, at the rate of eight percent (8%) per annum, from the due date until
the same shall be paid.
II.3 It is the purpose and intent of Landlord and Tenant that
the Rent (as may be adjusted as provided herein) to be paid to Landlord by
Tenant be absolutely net to Landlord, so that this Lease shall yield net to
Landlord all such amounts as hereinabove provided, and that all costs, expenses
and obligations of every kind or nature whatsoever, relating to the Demised
Premises (except as otherwise specifically provided herein), which may arise or
become due during the term of this Lease, shall be paid by Tenant, and that
Landlord shall be indemnified and saved harmless by Tenant from and against the
same. Nothing herein contained shall be deemed to require Tenant to pay or
discharge any liens or mortgages of any character whatever which may be placed
upon the Demised Premises by the affirmative act of Landlord.
II.4 No security deposit shall be required of Tenant.
ARTICLE III
IMPROVEMENTS; EQUIPMENT
III.1 Landlord hereby acknowledges that Tenant has title to
all machinery, equipment and trade fixtures on the Demised Premises and Tenant
shall have the right to remove such items prior to the expiration of the term of
this Lease or any extension thereof, or within sixty (60) days after an early
termination of the Lease resulting from Tenant's default or a condemnation of
the Demised Premises. The period of removal shall be extended for delays caused
without fault or neglect on the part of Tenant such as acts of God, strikes,
lockouts or other conditions beyond the control of Tenant. In the event Tenant
does not remove such items as aforesaid, the machinery, equipment and trade
fixtures shall become the property of Landlord without payment of any
consideration to Tenant.
III.2 Tenant shall retain title to all machinery, equipment
and trade fixtures which it places on the Demised Premises and shall have the
right to remove such items on the basis indicated in Section 3.1 hereof.
III.3 Landlord warrants to Tenant that all existing structural
elements and systems of, and improvements to, the Demised Premises including,
but not limited to, the plumbing, fire sprinkler system, lighting, air
conditioning, heating, electrical systems, boilers, pressures vessels, doors,
loading docks,
3
<PAGE> 4
windows, driveways, parking lots, fences and sidewalks shall be in good
operating condition on the Commencement Date and shall comply with all
applicable laws, rules, regulations, ordinances and building and zoning codes in
effect and applicable to the Demised Premises on the Commencement Date.
ARTICLE IV
PAYMENT OF TAXES
IV.1 Tenant shall pay, before any fine, penalty, interest or
cost may be added thereto, or become due or be imposed by operation of law for
the nonpayment thereof, all real property taxes, assessments, water and sewer
rents, charges for public utilities and permit fees and other governmental
charges applicable to the Demised Premises during the term hereof (all of which
are sometimes collectively referred to herein as the "Impositions"), which, for
any time during the term of this Lease may be assessed, levied, confirmed,
imposed upon or become due and payable out of, or in respect of, or become a
lien on, the Demised Premises or any improvements thereon, or any part thereof
or any appurtenance thereto.
IV.2 If any Impositions paid by Tenant shall cover any period
of time prior to or after the expiration of the term hereof, Tenant's share of
such Impositions shall be equitably prorated to cover only the period of time
within the tax fiscal year during which this Lease shall be in effect, and
Landlord shall reimburse Tenant to the extent required. Landlord and Tenant
agree to divide ratably any special assessments or installments of special
assessments paid by Tenant, which division shall reflect the unexpired term of
the Lease and the period during which any improvement or item for which a
special assessment is imposed may be expected to benefit the Demised Premises.
In addition, nothing herein contained shall require Tenant to pay municipal,
state or federal income taxes assessed against Landlord, municipal, state or
federal capital levy, estate, succession, inheritance or transfer taxes of
Landlord, or corporation or other franchise taxes imposed upon any owner of the
fee of the Demised Premises.
IV.3 The parties understand and agree that Tenant shall pay
the taxes and other charges as enumerated in this Article IV of the Lease at the
place at which tax payments are required to be made, each such payment of taxes
to be made at least five (5) days before the said tax itself would become
delinquent in accordance with the law then in force governing the payment of
such tax or taxes,
4
<PAGE> 5
and shall, upon request, promptly deliver official receipts evidencing such
payments to Landlord.
IV.4 Tenant shall have the right, at its own expense, to
contest the amount or validity of any tax or tax claim by appropriate
proceedings diligently conducted in good faith, but only after payment of such
tax unless such payment would operate as a bar to such contest or interfere
materially with the prosecution thereof, in which event payment of such tax
shall be postponed if and only so long as:
(a) neither the Demised Premises nor any part
thereof would by reason of such postponement be, in Landlord's reasonable
judgment, in danger of being forfeited or lost; and
(b) Landlord shall not, in its reasonable judgment,
be in danger of being subject to criminal liability or penalty by reason of such
postponement.
Any such contest may be made in the name of Landlord or Tenant or both as Tenant
shall determine, and Landlord agrees to cooperate reasonably with Tenant in any
such contest but without expense to Landlord. If, during the pendency of such
contest, Landlord, in the exercise of its reasonable judgment, shall determine
and shall notify Tenant of its determination that either condition (a) or (b) of
this Section 4.4 is no longer satisfied, Tenant shall immediately terminate such
contest and pay such tax and any costs, fees (including attorneys' fees) and
other liabilities accruing in such proceedings. If no default exists upon
conclusion of any contested proceedings, Tenant shall be authorized to collect
any refund obtained in such contest.
IV.5 In the event Tenant shall fail, refuse or neglect to make
any of the payments required in this Article IV, then Landlord may, at its
option, pay the same, and the amount or amounts of money so paid shall be repaid
by Tenant to Landlord, upon demand of Landlord, and the payment thereof may be
collected or enforced by Landlord in the same manner as though said amount were
an installment of Rent specifically required by the terms of the Lease to be
paid by Tenant to Landlord.
5
<PAGE> 6
ARTICLE V
PURPOSE AND USE
V.1 Tenant may use and occupy the Demised Premises for the
conduct of its business, including, without limitation, the following:
(a) Manufacturing;
(b) Warehousing and shipping; and
(c) Offices.
V.2 Tenant shall not use or occupy the Demised Premises, or
permit the Demised Premises to be used or occupied, contrary in any material
respects to any statute, rule, order, ordinance, requirement or regulation
applicable thereto, or in any manner which would materially violate any
certificate of occupancy affecting the same, or which would cause structural
injury to the buildings, structures and improvements, or cause the value or
usefulness of the Demised Premises, or any part thereof, to diminish, or would
constitute a public or private nuisance or waste.
ARTICLE VI
MAINTENANCE AND REPAIR
VI.1 Except as set forth in Section 6.2 hereof, Tenant shall
take good care of the Demised Premises and shall keep them in the same condition
and state of repair, ordinary wear and tear excepted, as existed at the time
Tenant received possession. All repairs made by Tenant shall be equal in quality
and class to the original work.
VI.2 Landlord shall repair and maintain and, where
appropriate, replace, at Landlord's sole cost and expense, all structural
elements of the Demised Premises including, without limitation, the roof,
foundation, floors and walls, as well as the parking lots, driveways, sidewalks,
fencing and landscaping in good condition and repair, except if any such repair
or replacement is due to damage caused by Tenant (which damage and destruction
is covered by the insurance required under Article IX hereof).
6
<PAGE> 7
VI.3 The necessity for and adequacy of repairs to any
structures and improvements pursuant to this Article VI shall be measured by the
standard which is appropriate for buildings, structures and improvements of
similar construction and class.
VI.4 Although Landlord shall have no obligation by reason of
this Lease to make repairs of any kind other than as set forth in Section 6.2
hereof, Landlord may elect to make necessary repairs which Tenant fails to make
and the cost of such repairs shall be additional rent which shall be immediately
due and owing under this Lease.
ARTICLE VII
TITLE; MECHANICS' LIENS
VII.1 Tenant shall not permit or suffer to be filed or claimed
against the interest of Landlord in the Demised Premises during the term of this
Lease any lien or claim of any kind for services or materials furnished in
connection with any addition or improvement caused to be performed of the
Demised Premises by Tenant, and if such lien shall be claimed or filed it shall
be the duty of Tenant, within sixty (60) days after Tenant receives notice that
a claim has been filed, or within sixty (60) days after Landlord has been given
written notice of such claim and has transmitted written notice of the receipt
of such claim to Tenant (whichever sixty-day period expires earlier) to cause
the Demised Premises to be released from such claim, either by payment or by the
posting of bond or by the payment into court of the amount necessary to relieve
and release the Demised Premises from such claim or in any other manner which,
as a matter of law, will result in releasing Landlord and the title of Landlord
from such claim within said period of sixty (60) days.
VII.2 In consideration of Tenant's right of first refusal
hereunder, Landlord shall not enter into any agreements, easements, covenants,
conditions or other restrictions that might affect title to the Demised Premises
without Tenant's prior written approval. Notwithstanding the foregoing, Landlord
shall have the right after the Commencement Date and prior to Tenant's election
to exercise its right of first refusal pursuant to Article XV hereof, to grant a
mortgage on Landlord's fee interest in the Demised Premises. In the event Tenant
shall purchase the Demised Premises in accordance with Article XV, Landlord
shall be required to pay or discharge any liens or mortgages of any character
whatsoever
7
<PAGE> 8
which may be placed upon the Demised Premises by the affirmative act of
Landlord.
ARTICLE VIII
INDEMNIFICATION OF LANDLORD
VIII.1 Tenant will protect, indemnify and save Landlord
harmless from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted
against Landlord by reason of (a) any accident, injury to or death of persons or
loss of or damage to property occurring on or about the Demised Premises or any
part thereof or the adjoining properties, sidewalks, curbs, streets or ways and
caused by Tenant or Tenant's operations on or after the Commencement Date or (b)
any failure on the part of Tenant to perform or comply with any of the terms of
this Lease. In case any action, suit or proceeding is brought against Landlord
by reason of any such occurrence, Tenant shall, at Tenant's expense, resist and
defend such action, suit or proceeding. This indemnity shall not apply to any
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expenses resulting from the actions or omissions of Landlord, its employees
or agents.
ARTICLE IX
INSURANCE
IX.1 During the term of this Lease, as additional rent for the
Demised Premises, Tenant shall procure and maintain insurance, at its own cost
and expense, insuring:
(a) The buildings, structures and improvements at
any time situated upon the Demised Premises against loss or damage by fire,
explosion, sprinkler leakage, windstorm, malicious mischief, vandalism, and all
other normally insurable casualties insured by a full and complete extended
coverage endorsement of not less than 100% of the full replacement value of such
buildings, structures and improvements, with all proceeds of insurance to be
payable to Landlord and Tenant; and
(b) Landlord and Tenant from all claims, demands or
actions for injury to or death of any person in an amount of not less than
$1,000,000; for
8
<PAGE> 9
injury to or death of more than one person in any one accident to the limit of
$1,000,000; and for damage to property in an amount of not less than $1,000,000
made by, or on behalf of, any person or persons, firm or corporation, arising
from, related to or connected with the Demised Premises.
IX.2 The aforesaid insurance shall be in companies
satisfactory to Landlord and Tenant, and Landlord shall be named as an
additional insured. The aforesaid insurance shall not be subject to cancellation
except after at least thirty (30) days' prior written notice to Landlord. The
original insurance policies (or certificates thereof satisfactory to Landlord),
together with satisfactory evidence of payment of the premiums thereon, shall
upon written request be deposited with Landlord on the Commencement Date. If
Tenant fails to obtain the aforesaid insurance, Landlord may obtain such
insurance and keep the same in effect, and Tenant shall pay to Landlord the
premium cost thereof upon demand as additional rent hereunder.
IX.3 Whenever any loss, cost, damage or expense resulting from
fire, explosion or any other casualty or occurrence is incurred by either of the
parties to this Lease in connection with the Demised Premises, and such party is
then covered in whole or in part by insurance with respect to such loss, cost,
damage or expense, then the party so insured hereby releases the other party
from any liability it may have on account of such loss, cost, damage or expense
to the extent of any amount recovered by reason of such insurance and waives any
right of subrogation which might otherwise exist in or accrue to any person on
account thereof; provided, however, that such release of liability and waiver of
the right of subrogation shall not be operative in any case where the effect
thereof is to invalidate such insurance coverage or increase the cost thereof
(however, in the case of increased cost the other party shall have the right,
within thirty (30) days following written notice, to pay the increased cost
thereupon keeping such release and waiver in full force and effect).
ARTICLE X
ASSIGNMENT; LEASEHOLD MORTGAGES
X.1 Except as otherwise permitted in this Article X, this
Lease shall not be assigned by Tenant unless Landlord shall have consented
thereto in writing, which consent shall not be unreasonably withheld.
9
<PAGE> 10
X.2 At any time and from time to time, Tenant may, without
Landlord's consent, assign this Lease to a direct or indirect wholly-owned
subsidiary or an affiliate of IPC, Inc.
X.3 At any time and from time to time, Tenant may freely
mortgage, pledge or otherwise encumber its interest in the Demised Premises. Any
such mortgage, pledge or other encumbrance shall be referred to as a "Leasehold
Mortgage," which Leasehold Mortgage shall at no time be a lien on Landlord's
interest in the Demised Premises.
X.4 The holder of any leasehold mortgage ("Leasehold
Mortgage") may give written notice to Landlord, specifying the name and address
of the mortgagee under such Leasehold Mortgage (the "Leasehold Mortgagee") and
attaching thereto a true and complete copy of such Leasehold Mortgage, and if
such notice shall be given, thereafter Landlord shall give to such Leasehold
Mortgagee notice of any and all defaults and nonperformance hereunder not later
than the first to occur of (i) the time such notice is given to Tenant and (ii)
the time of the declaration of any default, or the exercise of any remedy
hereunder, addressed to such Leasehold Mortgagee at its address last furnished
to Landlord in writing. No such notice by Landlord to Tenant hereunder shall be
deemed to have been duly given unless and until a copy thereof has been
delivered to such Leasehold Mortgagee of which Landlord has been notified in
accordance with the provisions of this Section 10.4 in accordance with the terms
of Section 18.2 hereof. Such Leasehold Mortgagee, after service of a further
notice from Landlord to Leasehold Mortgagee that Tenant's applicable cure period
has expired ("Landlord's Notice"), shall thereupon have a period of forty-five
(45) days from Leasehold Mortgagee's receipt of Landlord's Notice for remedying
the default or causing the same to be remedied. Such Leasehold Mortgagee, in
case Tenant shall be in default hereunder, shall within the period and otherwise
as herein provided, have the right to remedy such default, or cause the same to
be remedied. Landlord, within the aforesaid period, shall accept performance by
any such Leasehold Mortgagee of any covenant, condition, or agreement on
Tenant's part to be performed hereunder with the same force and effect as though
performed by Tenant. Landlord shall not exercise any right or remedy with
respect to any default in respect of the performance of work required to be
performed, or acts to be done, or conditions to be remedied so long as such
Leasehold Mortgagee shall, in good faith, have commenced promptly to rectify the
same and shall thereafter prosecute the same to completion with diligence and
continuity, provided that all such defaults are cured within forty-five (45)
days from the date of Landlord's Notice or, if such non-
10
<PAGE> 11
monetary default is not reasonably curable within such forty-five day period,
the Leasehold Mortgagee shall commence a cure within forty-five (45) days of the
date of Landlord's Notice and the Leasehold Mortgagee shall complete such cure
within one hundred eighty (180) days after such date. Notwithstanding the
foregoing, the period of time given to the Leasehold Mortgagee to cure any
default by Tenant which reasonably requires that said Leasehold Mortgagee be in
possession of the Demised Premises to do so, shall be deemed extended to include
the period of time reasonably required by said Leasehold Mortgagee to obtain
such possession (by foreclosure or otherwise) with due diligence. No Leasehold
Mortgagee shall become liable under the provisions of this Lease unless and
until such time as it becomes the owner of the leasehold estate covered by its
mortgage, and then only for obligations arising during the time it is the owner
of such leasehold estate; provided, however, that the preceding portion of this
sentence shall not limit or restrict in any way Landlord's authority to
terminate this Lease as against any Leasehold Mortgagee (subject to the
provisions of this Section 10.4) if any default hereunder (including, without
limitation, any default in the payment of Rent) has not been completely cured
within the cure period specified herein.
X.5 In case of termination of this Lease by reason of an Event
of Default hereunder, Landlord shall give notice thereof simultaneously to each
Leasehold Mortgagee who shall be entitled to receive notices of default as
provided in Section 10.4 hereof, which notice shall be addressed to each
Leasehold Mortgagee at the address last furnished to Landlord in writing as
above provided. Provided that the Lease was terminated as the result of an Event
of Default which was personal to Tenant and therefore not curable by the
Leasehold Mortgagee, if any of such Leasehold Mortgagees notifies Landlord in
writing, within thirty (30) days after the giving of such notice of termination
by Landlord as aforesaid, that it desires to enter into a new lease, Landlord
shall execute and deliver such new lease to the holder or holders of the First
Leasehold Mortgagee (as hereinafter defined) who timely requested such new lease
in respect of the Demised Premises or leasehold estate which shall have been
covered by the lien of the mortgage held by such Leasehold Mortgagee, for the
remainder of the term of this Lease, at the Rent and other charges herein
reserved and upon the covenants, conditions, limitations and agreements herein
contained, provided that such Leasehold Mortgagee shall have paid to Landlord
all Rent and other charges due under this Lease and shall have paid to the
appropriate authority any other charges to be paid by Tenant hereunder, up to
and including the date of the commencement of the term of such new lease. The
term "First Leasehold Mortgagee" as used in this Lease shall mean that Lease-
11
<PAGE> 12
hold Mortgagee or Leasehold Mortgagees holding the most senior lien on the
interest of Tenant under this Lease or any portion thereof, as consolidated,
renewed, extended, modified or replaced from time to time. In the event the
First Leasehold Mortgagee fails to notify Landlord of its election to enter into
a lease within such thirty-day period, Landlord shall enter into such lease with
any other Leasehold Mortgagee who so elects by written notice delivered within
such thirty-day period to Landlord to enter into a new lease with Landlord, in
the order of priority of the Leasehold Mortgagees, or as the other Leasehold
Mortgagees may agree. Nothing herein contained shall be deemed to impose any
obligation on the part of Landlord to deliver physical possession of the Demised
Premises or any part thereof to such Leasehold Mortgagee; provided, however,
that Landlord shall cooperate with such Leasehold Mortgagee (by joining as a
party in any appropriate action or proceeding or otherwise) at the sole cost and
expense of such Leasehold Mortgagee, and at no cost, expense or liability to
Landlord, for the purpose of enabling such Leasehold Mortgagee to obtain such
possession of the Demised Premises. The Leasehold Mortgagee shall not be
required to cure any Event of Default which is exclusively personal to Tenant
and which therefore no Leasehold Mortgagee has the power to cure (such as, for
example, the bankruptcy of Tenant), as a prerequisite to the exercise of the
rights granted to such Leasehold Mortgagee by the provisions of this Section
10.5. Except as aforesaid, such Leasehold Mortgagee shall remedy all other
Events of Default hereunder. Any such new lease and the leasehold estate thereby
created shall continue to maintain the same priority as the within Lease with
regard to any mortgage on the Demised Premises or any part thereof or any other
lien, charge or encumbrance thereon caused or made by Landlord whether or not
the same shall then be in existence. The provisions of the preceding sentence
are intended to be self-executing, and Landlord shall not be obligated to expend
any funds or take any other action (other than to execute any documents
reasonably required by any title company, at no expense to Landlord) to
accomplish or obtain such priority for any such new lease or leasehold estate.
X.6 Landlord agrees to enter into any amendments of this Lease
as may be reasonably required at any time by any Leasehold Mortgagee, except any
amendment which in Landlord's reasonable judgment diminishes in any respect any
rights of, increases any obligations of or adversely affects Landlord hereunder.
Any costs incurred in connection with any such amendment shall be borne by
Tenant.
12
<PAGE> 13
X.7 Notwithstanding the provisions of this Article X, any
Leasehold Mortgagee may foreclose on its mortgage or accept a deed in lieu of
foreclosure without the necessity of complying with the provisions of Sections
10.1 and 10.2; provided, however, that following any such foreclosure or
acceptance of a deed in lieu of foreclosure, the Demised Premises may be used
only for the use and purposes set forth in Section 5.1 hereof, and for no other
purpose without the written consent of Landlord.
X.8 Each party hereby covenants and agrees with the other that
it shall, within fifteen (15) days after written notice shall have been given by
the other requiring a statement of the status of the Lease, give such statement
in writing indicating whether the Lease is in good standing, and if it is not,
the particulars in which it is not, and failure within said period of fifteen
(15) days to give such written reply shall constitute a representation that the
Lease is in good standing, upon which representation any person, after the
expiration of said fifteen (15) days, may rely as being true and correct.
X.9 If Tenant's interest in and to this Lease is assigned with
Landlord's consent, Tenant's liability for the performance of the covenants and
agreements contained herein to be performed by Tenant shall cease and determine
simultaneously with such an assignment, provided that the successor tenant, in
each instance, assumes in writing all of the covenants and agreements to be kept
and performed by Tenant and an executed copy of such assumption is delivered to
Landlord and provided further that, at the time of such an assignment of
Tenant's interest, all of the covenants and agreements to be kept and performed
by Tenant were as of that date kept and performed.
X.10 Upon the written consent of Landlord, which consent shall
not be unreasonably withheld, Tenant shall have the right to sublet all or any
portion of the Demised Premises for any lawful purpose and for purposes not in
contravention of zoning regulations or of any conditions, covenants, easements,
or reservations of record affecting the Demised Premises. Tenant shall at all
times, notwithstanding any such subletting, remain directly and primarily liable
to Landlord for the full and faithful performance of all of the terms and
provisions thereof.
ARTICLE XI
CONDEMNATION AND DESTRUCTION
13
<PAGE> 14
XI.1 If the whole of the Demised Premises, or so much thereof,
including however, a portion of the buildings, structures and improvements,
shall be taken or condemned for a public or quasi-public use or purpose by any
competent authority, and as a result thereof the balance of the Demised Premises
cannot, in the judgment of Tenant, be used for the same purpose as expressed in
Section 5.1 hereof, then the term of this Lease shall terminate when possession
of the Demised Premises shall be so taken and surrendered, and any award,
compensation or damages shall be paid to and be the sole property of Landlord
(except for that portion allocable to Tenant's machinery, equipment, trade
fixtures and personalty).
XI.2 If a material part of the Demised Premises shall be so
taken or condemned, as determined by Tenant in its reasonable discretion, Tenant
shall have the option to terminate this Lease. If, as a result of such partial
condemnation, Tenant determines, in its reasonable discretion, that the balance
of the Demised Premises can be used by Tenant for the same purpose as expressed
in Section 5.1 hereof, then Tenant shall be entitled to have the Rent,
additional rent, real estate taxes and other obligations hereunder adjusted to
reflect limitations in space available for Tenant's use and Landlord shall be
entitled to retain the entire award; provided, however, that Landlord shall
repair and restore the Demised Premises and all buildings, structures and
improvements thereon to a complete architectural unit, and provided further that
if the amount of the award shall be insufficient for such repairs or
restoration, then Tenant shall not be responsible for the amount of the
deficiency.
XI.3 In the event of damage to or destruction of an immaterial
part of the buildings, structures or improvements located on the Demised
Premises by fire, windstorm, or other casualty, Landlord shall cause the Demised
Premises to be repaired, restored or rebuilt with all reasonable dispatch. Any
insurance proceeds covering such casualty shall be made available to Landlord
for such repair or restoration.
XI.4 In the event of damage to or destruction of a material
part of the Demised Premises or the buildings, structures or improvements
located on the Demised Premises by fire, windstorm, or other casualty, as
reasonably determined by Tenant, Tenant shall have the option to either (i)
terminate the Lease, in which event insurance proceeds covering such casualty
(excluding insurance proceeds covering Tenant's machinery, equipment, trade
fixtures and personal property or as part of the recovery under a general
casualty policy where a specific portion of
14
<PAGE> 15
such proceeds is allocable to such property of Tenant) shall be paid to
Landlord, or (ii) elect to have the sum of insurance proceeds covering such
casualty made available to Landlord for the reconstruction or repair of any
building, structure or improvement so damaged or destroyed; provided, however,
that if the amount of proceeds shall be insufficient for the reconstruction or
repair and refurnishing of any building or structure damaged or destroyed, as
aforesaid, Landlord shall not be obligated to make such repairs or
reconstruction unless Tenant provides Landlord with written assurances that
Tenant shall be responsible for the amount of the deficiency.
XI.5 In the event of damage or destruction to the Demised
Premises as described in Section 10.3 or Section 10.4 hereof, Tenant shall be
entitled to have the Rent, additional rent, real estate taxes and other
obligations of Tenant hereunder adjusted to reflect the limitations in space
available for Tenant's use thereafter.
ARTICLE XII
DEFAULT AND REMEDIES
XII.1 Tenant agrees that any one or more of the following
events shall be considered an Event of Default as said term is used herein:
(a) Tenant shall fail to make any payment of Rent or
any other payment required to be made by Tenant hereunder when due as herein
provided, and such failure shall continue for ten (10) days after notice thereof
in writing to Tenant; or
(b) Tenant shall fail to comply with any of the other
covenants and agreements herein
contained to be kept, observed and performed by Tenant, and such failure shall
continue for thirty (30) days after notice thereof in writing to Tenant; or
(c) The filing or execution or occurrence of:
(i) a petition in bankruptcy by or against Tenant;
(ii) a petition or answer by or against Tenant
seeking a reorganization, arrangement, composition, readjustment,
liquidation, disso-
15
<PAGE> 16
lution or other relief of the same or different kind under any
provision of any bankruptcy act;
(iii) adjudication of Tenant as a bankrupt or
insolvent, either in the bankruptcy or equity sense;
(iv) an assignment by Tenant for the benefit of
creditors;
(v) a petition or other proceeding by or against
Tenant for, or the appointment of, a trustee, receiver, guardian,
conservator or liquidator of Tenant with respect to the Demised
Premises or with respect to all or substantially all of Tenant's
property; or
(vi) a petition or other proceeding by or against
Tenant for its dissolution or liquidation, or the taking of Tenant's
property by any governmental authority in connection with dissolution
or liquidation;
and in the case of petitions filed against Tenant under (i), (ii), (v) or (vi),
the nondismissal of such petition within forty-five (45) days after the filing
thereof; or
(d) the entry of any order, judgment or decree by any
court of competent jurisdiction granting any prayer or demand contained in any
petition under Sections 12.1(d) (i), (ii), (v) or (vi); or
(e) the taking by any person of Tenant's interest in
this Lease upon execution, attachment or other process of law or equity.
Upon the occurrence of an Event of Default, it shall be lawful for Landlord, at
its election, to declare the said term ended, and either with or without process
of law, to re-enter and to expel, remove and put out Tenant and all persons
occupying the Demised Premises under Tenant, using such force as may be
necessary in so doing. If default shall be made in any covenant and agreement
herein contained to be kept, observed and performed by Tenant, other than the
payment of Rent or any other payment required to be made by Tenant hereunder,
which cannot with due diligence be cured within a period of thirty (30) days,
and if notice thereof in writing shall have been given to Tenant, and if Tenant,
prior to the expiration of such thirty (30) day period commences to eliminate
the cause of such default, proceeds diligently and with reasonable dispatch to
take all steps and do all work
16
<PAGE> 17
required to cure such default and does so cure such default, then Landlord shall
not have the right to declare the said term ended and enforce all of its rights
and remedies hereunder for any default not so cured within such thirty (30) day
period.
XII.2 The foregoing provisions for the termination of this
Lease for any default in any of Tenant's covenants or obligations hereunder
shall not operate to exclude or suspend any other remedy of Landlord for breach
of any of said covenants or obligations or for the recovery of Rent, any advance
of Landlord made thereon or any other payment required to be made by Tenant
hereunder and, in the event of the termination of this Lease as aforesaid,
Tenant agrees to indemnify and save harmless Landlord from any loss arising from
such termination and reentry.
XII.3 No remedy herein or otherwise conferred upon or reserved
to Landlord shall be considered exclusive of any other remedy. No delay or
omission of Landlord to exercise any right or power arising from any default
shall impair any such right or power or shall be construed to be a waiver of any
such default or an acquiescence therein.
XII.4 No waiver of any breach of any of the covenants of this
Lease shall be construed, taken or held to be a waiver of any other breach or
waiver, acquiescence in or consent to any further or succeeding breach of the
same covenant.
XII.5 Neither the rights herein granted to receive, collect,
sue for or distrain for Rent or any monies or payments due hereunder, or to
enforce the covenants and agreements of this Lease, or to prevent the breach or
non-observance thereof, or the exercise of any such right or of any other right
or remedy hereunder or otherwise granted or arising, shall in any way affect or
impair or toll the right or power of Landlord to declare the term of this Lease
hereby granted ended, and to terminate this Lease as provided for herein because
of any default in or breach of the covenants and agreements of this Lease.
XII.6 Nothing contained in this Article XII shall limit or
restrict the right of Tenant under Article III to remove its improvements from
the Demised Premises.
ARTICLE XIII
17
<PAGE> 18
MODIFICATIONS; SIGNS
XIII.1 Tenant, at its own expense, may make, without
Landlord's consent, any addition to or alteration, modification or rearrangement
(collectively referred to below as "modifications") of the Demised Premises;
provided, however, that such modification shall not affect the structural
integrity of the building. Upon termination or expiration of this Lease and upon
the request of Landlord, the Demised Premises, as regards nonstructural
modifications, shall be returned to its original condition, less ordinary wear
and tear.
XIII.2 Modifications affecting the structural integrity of the
building may not be made by Tenant without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. If Tenant desires to
make such a modification, notice of the type of proposed action shall be
delivered to Landlord at least sixty (60) days prior to the contemplated
commencement of such action. Within forty-five (45) days of receipt by Landlord
of the aforesaid notice from Tenant, Landlord shall by written notice to Tenant
state whether Landlord (i) consents to such action and (ii) requires that the
Demised Premises, with regard to the contemplated structural modification, be
returned to its original condition, less ordinary wear and tear, upon
termination or expiration of the Lease. If Landlord consents to such action and
provides notice to Tenant that it requires that the Demised Premises be returned
to its original condition upon termination or expiration of this Lease within
such forty-five (45) day period, Tenant shall, at the termination or expiration
of the Lease, return the Demised Premises, with regard to that particular
modification, to the original condition, less ordinary wear and tear. If
Landlord fails to respond to Tenant's notice within such forty-five (45) day
period, Landlord shall be deemed to have consented to such structural
modification and not to require the Demised Premises be returned to its original
condition upon termination or expiration of this Lease. In all events, Tenant
shall have the right to remove any structural modification as it sees fit,
always returning the Demised Premises to the condition prior to installation of
such modification.
XIII.3 Tenant shall keep the Demised Premises free from any
liens arising out of any work performed, materials furnished or obligations
incurred by Tenant.
XIII.4 In addition to the possible installation of
modifications and removal thereof by Tenant, it is agreed that all personal
property, mechanical tools,
18
<PAGE> 19
trade fixtures and like items may be installed and removed as Tenant sees fit,
always returning the Demised Premises to the condition prior to installation of
such property, tools, trade fixtures or like items.
XIII.5 Tenant, at its sole cost, may place signs on the
Demised Premises; provided, however, that such signs shall be of a size and in
such design as shall be approved by Landlord, whose consent shall not be
unreasonably withheld or delayed. Tenant, at its sole cost, shall obtain such
permits and approvals as may be necessary from any governmental bodies.
ARTICLE XIV
[Intentionally Deleted]
ARTICLE XV
RIGHT OF FIRST REFUSAL
XV.1 If Landlord receives a bona fide offer to purchase all or
any portion of the fee title of the Demised Premises from an unaffiliated third
party, any contract that may be entered into between Landlord and such bona fide
purchaser shall provide that the sale of the fee shall be subject to Tenant's
right of first refusal as set forth in this Article XV. Such sale shall be
subject to this Lease and shall be so affirmed by the purchaser. In the event
that Landlord receives a written offer or executes a contract as set forth
above, Tenant shall have the option, to be exercised within sixty (60) days
after receipt by Tenant of written notice of the terms of such offer, to enter
into a contract with Landlord, and Landlord agrees to enter into such contract
with Tenant, on the same terms and conditions as said offer to purchase.
Notwithstanding anything in this Lease to the contrary, Landlord shall not
entertain or consider any offers from any other party to purchase the Demised
Premises during the last year of the term hereof.
XV.2 Landlord shall submit a duplicate original of the
executed contract embodying all of the terms and conditions of said executed
contract to Tenant for the purpose set forth in this Article XV. If, after the
receipt of such notice, Tenant fails to exercise its option by signing and
returning a copy of said contract to Landlord, together with the down payment
therein provided, within such sixty-day period, Landlord shall have the right to
proceed with and close the proposed sale on the same terms (and no other terms)
as in the offer or contract originally submitted to Tenant. Notwithstanding
Tenant's failure to exercise such
19
<PAGE> 20
option within such sixty-day period, Tenant's option shall remain in force and
be binding on any subsequent owner or owners of the Demised Premises, in
connection with any subsequent sale, to the same extent as if said subsequent
owner or owners were Landlord herein, and said subsequent owner or owners shall
be required to do all of the things required of Landlord in this Lease prior to
any such subsequent sale of the Demised Premises.
ARTICLE XVI
SURRENDER
XVI.1 Upon the termination of this Lease, whether by
forfeiture, lapse of time or otherwise, or upon the termination of Tenant's
right to possession of the Demised Premises, Tenant will at once surrender and
deliver up the Demised Premises, together with all improvements thereon which
are the property of Landlord, to Landlord in good condition and repair, ordinary
wear and tear excepted, subject, however, to the provisions of Article IX
hereof.
XVI.2 Upon the termination of the Lease by lapse of time,
Tenant may remove Tenant's trade fixtures and all of Tenant's personal property
and equipment; provided, however, that Tenant shall repair any injury or damage
which may result from such removals.
XVI.3 Any holding over by Tenant of the Demised Premises after
the expiration of this Lease shall operate and be construed to be a tenancy from
month to month only at a monthly rental of One Hundred Fifty percent (150%) of
the Rent (as adjusted pursuant to Article II hereof) payable for the month
immediately prior to the expiration of this Lease.
ARTICLE XVII
COMPLIANCE WITH LAW;
ENVIRONMENTAL CONCERNS
XVII.1 Tenant shall comply in all material respects with all
laws, ordinances, and regulations of duly constituted public authorities now or
hereafter in any manner materially affecting the Demised Premises and the use
and occupation thereof. Tenant shall have the right in its name or, wherever
necessary, in Landlord's name, to contest the validity or enforcement of any
law, ordinance, order, regulation, or requirement affecting the Demised Premises
or the operation
20
<PAGE> 21
thereof and may defer compliance therewith provided that: (i) Tenant shall
diligently prosecute such contest to binding settlement or final determination
by the court department, governmental authority or body having jurisdiction in
the matter; and (ii) Tenant shall save and hold Landlord harmless against
violation by Tenant of any such law, order, ordinance, rule or regulation.
XVII.2 Landlord shall cooperate with Tenant and execute any
documents or pleadings necessary or required in connection with Tenant's
performance of its obligations under this Article XVII, and Tenant agrees to
save and hold Landlord harmless against any liability, claim, or expense in
connection therewith.
XVII.3 As used herein, the term "Hazardous Material" means any
hazardous, toxic or dangerous waste, substance or material defined as such in
(or for purposes of) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time, any so-called "Superfund"
or "Superlien" law, or any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to or
imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or material, as now or at any time hereafter in
effect.
XVII.4 Tenant shall pay, protect, indemnify and save harmless
Landlord from and against any and all liabilities, losses, damages, costs,
expenses (including, without limitation, reasonable attorneys' fees and
expenses), causes of action, suits, claims, demands, fines or judgments of any
and every nature whatsoever (collectively, "Indemnifiable Damages") arising from
or in any way relating to Tenant's use of the Demised Premises (or use by any
person claiming under Tenant) from and after the Commencement Date through the
expiration or earlier termination of this Lease. Without limiting the foregoing,
Tenant agrees, to the maximum extent permitted by law, to indemnify, defend and
save Landlord harmless from and against any and all Indemnifiable Damages which
(i) result from the release from the Demised Premises of any Hazardous Materials
during the term of this Lease or (ii) result from the failure of Tenant to
obtain all necessary permits, registrations or authorizations for the use or
operation of the Demised Premises as required under the provisions of any such
statute. The foregoing indemnification shall apply regardless of whether such
Indemnifiable Damages are founded upon municipal, state or federal common,
regulatory, statutory or equitable laws, rules or principles and the term
"statute" as used herein shall be deemed to include all such laws, rules and
principles. Indemnifiable Damages
21
<PAGE> 22
shall exclude any and all liabilities, losses, damages, costs, expenses
(including, without limitation, attorneys' fees and expenses), causes of action,
suits, claims, demands, fines or judgments of any and every nature whatsoever
caused by Landlord or arising out of or relating to violations, alleged
violations, matters or circumstances existing prior to the commencement of this
Lease or arising out of or relating to violations, alleged violations, matters
or circumstances arising after the term hereof (collectively, "Landlord
Indemnifiable Damages").
XVII.5 Landlord shall pay, protect, indemnify and save
harmless Tenant from and against any and all Landlord Indemnifiable Damages.
Without limiting the foregoing, Landlord agrees, to the maximum extent permitted
by law, to indemnify, defend and save Tenant harmless from and against any and
all Landlord Indemnifiable Damages.
XVII.6 The obligations of Tenant under Section 17.4 hereof and
the obligations of Landlord under Section 17.5 hereof shall survive any
termination of this Lease for all events described in Section 17.4 which are
proven to occur after the commencement of and prior to the termination of this
Lease and for all events described in Section 17.5 which are proven to occur
prior to the commencement of and after the termination of this Lease.
ARTICLE XVIII
MISCELLANEOUS
XVIII.1 None of the covenants and agreements of this Lease to
be kept and performed by either party shall in any manner be altered, waived,
modified, changed or abandoned except by a written instrument, duly signed,
acknowledged and delivered by the other party, and no act or acts, omission or
omissions or series of acts or omissions, or waiver, acquiescence or forgiveness
of Landlord as to any default in or failure of performance, either in whole or
in part, by Tenant, or any of the covenants and agreements of this Lease, shall
be deemed or construed to be a waiver by Landlord of the right at all times
thereafter to insist upon the prompt, full and complete performance by Tenant of
each and all of the covenants and agreements hereof thereafter to be performed
in the same manner and to the same extent as the same are herein covenanted to
be performed by Tenant.
22
<PAGE> 23
XVIII.2 All notices to or demands upon Landlord or Tenant
desired or required to be given under any of the provisions hereof shall be in
writing. Any notices or demands from Tenant to Landlord shall be deemed to have
been duly and sufficiently given if a copy thereof has been mailed by United
States registered or certified mail in an envelope properly stamped and
addressed to Landlord at the address set forth on the first page of this Lease,
Attention: President, or to such other address as Landlord may theretofore have
furnished by written notice to Tenant, and any notices or demands from Landlord
to Tenant shall be deemed to have been duly and sufficiently given if mailed by
United States registered mail or certified mail in an envelope properly stamped
and addressed to Tenant at the address set forth on the first page of this Lease
or at such other address as Tenant may theretofore have furnished by written
notice to Landlord, with an additional copy of any such notice or demand sent in
a like manner to Tenant c/o Ivex Packaging Corporation, 100 Tri-State Drive,
Suite 200, Lincolnshire, Illinois 60069, Attention: G. Douglas Patterson, Vice
President & General Counsel.
XVIII.3 Landlord may enter the Demised Premises at any time,
upon reasonable notice to Tenant, for the purpose of inspecting same, or if
making repairs which Tenant may neglect or refuse to make in accordance with the
covenants and agreements of this Lease, and also for the purpose of showing the
Demised Premises to persons wishing to purchase the same or, at any time within
one (1) year prior to the expiration of the Lease term, to persons wishing to
rent the Demised Premises. Tenant shall, within one (1) year prior to the
expiration of the Lease term, permit the usual notice of "To Let" or "For Sale"
to be placed on the Demised Premises and to remain thereon without molestation.
XVIII.4 This Lease shall not be recorded, however, Landlord
and Tenant hereby agree to execute a Memorandum of Lease in the form of Exhibit
B attached hereto upon the execution of this Lease, and such memorandum may be
recorded with the County Recorder, Santa Barbara County, California, at Tenant's
sole cost and expense.
XVIII.5 Time is of the essence of this Lease, and all
provisions herein relating thereto shall be strictly construed.
XVIII.6 The parties warrant and represent that there are no
real estate brokers involved and that there are no commissions due to anyone
arising out of this transaction.
23
<PAGE> 24
XVIII.7 Landlord acknowledges that Pactuco has made certain
representations and warranties to and covenants with Tenant and its affiliates
under the Assets Purchase Agreement and other agreements executed in connection
therewith, including the retention of certain liabilities, the violation or
breach of which, or failure to comply with, shall entitle Tenant and/or its
affiliates to set-off payments due Landlord hereunder.
XVIII.8 Nothing contained herein shall be deemed or construed
by the parties hereto, nor by any third party, as creating the relationship of
principal and agent, of partnership or of joint venture between or among the
parties hereto, it being understood and agreed that no provision contained in
this Lease, nor any acts of the parties hereto, shall be deemed to create any
relationship other than the relationship of Landlord and Tenant.
XVIII.9 The captions of this Lease are for convenience only
and are not to be construed as part of this Lease or as defining or limiting in
any way the scope or intent of the provisions hereof.
XVIII.10 If any term or provision of this Lease shall to any
extent be held invalid or unenforceable, the remaining terms and provisions of
this Lease shall not be affected thereby, but each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
XVIII.11 This Lease shall be construed and enforced in
accordance with the laws of the State of California.
XVIII.12 All of the covenants and agreements contained in this
Lease shall extend, inure to and be binding upon the successors and assigns of
the respective parties hereto, the same as if they were in every case
specifically named, and wherever in this Lease reference is made to either of
the parties hereto, it shall be held to include and apply to, wherever
applicable, the successors and assigns of such party. Nothing herein contained
shall be construed to grant or confer upon any person or persons, firm,
corporation or governmental authority other than the parties hereto, their
successors and assigns, any right, claim or privilege by virtue of any covenant
and agreement in this Lease contained.
24
<PAGE> 25
IN WITNESS WHEREOF, the undersigned have caused this Lease to
be executed by their duly authorized representatives as of the date first above
written.
LANDLORD:
GOWING LEASING COMPANY, a general
partnership
By:_____________________________
Name:
Its:
TENANT:
PACTUCO ACQUISITION, INC., a Dela-
ware corporation
By:_____________________________
Name:
Its:
25
<PAGE> 26
This instrument prepared by:
Nancy M. Olson, Esq.
Skadden, Arps, Slate, Meagher & Flom
333 West Wacker Drive
Chicago, Illinois 60606
<PAGE> 27
EXHIBIT A
Legal Description
PARCEL 1 OF PARCEL MAP LOM-433-P, IN THE CITY OF LOMPOC, COUNTY OF SANTA
BARBARA, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 45, PAGES 9, 10 AND 11
OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
<PAGE> 28
EXHIBIT B
Memorandum of Lease
<PAGE> 29
This instrument was prepared
by and after recording return to:
Nancy M. Olson, Esq.
Skadden, Arps, Slate, Meagher
& Flom (Illinois)
333 West Wacker Drive, Suite 2100
Chicago, Illinois 60606
______________________________________________Space above for Recorder's use
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made and entered into as of the
16th day of April, 1999, by and between GOWING LEASING COMPANY, a general
partnership ("Landlord"), and PACTUCO ACQUISITION, INC., a Delaware corporation
("Tenant").
BACKGROUND
A. Reference is made to that certain Lease, dated as of
April 16, 1999 (the "Lease"), by and between Landlord and Tenant whereby
Landlord leased to Tenant and Tenant leased from Landlord certain real property
and improvements thereon commonly known as 1641 West Central Avenue, Lompoc,
California 93436 and more particularly described on Exhibit A attached hereto
and made part hereof, together with all rights, privileges and appurtenances
thereto (collectively, the "Demised Premises").
B. Landlord and Tenant desire to record this Memorandum
of Lease for the purpose of giving notice of the Lease and certain of its terms
and conditions, including certain of Tenant's rights thereunder.
NOW, THEREFORE, for and in consideration of the sum of Ten
Dollars ($10.00) and for other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, the parties do hereby
covenant and agree as follows:
<PAGE> 30
1. Landlord: The landlord under the Lease is: GOWING
LEASING COMPANY, a general partnership.
2. Tenant: The tenant under the Lease is: PACTUCO
ACQUISITION, INC., a Delaware corporation
3. Landlord's Address: Landlord's address is 1641 West
Central Avenue, Lompoc, California 93436.
4. Tenant's Address: Tenant's address is 1641 West
Central Avenue, Lompoc, California 93436. Any notice or demand required under
the Lease shall also be sent to Tenant c/o Ivex Packaging Corporation, 100
Tri-State Drive, Suite 200, Lincolnshire, Illinois 60069, Attention: G. Douglas
Patterson, Vice President & General Counsel.
5. Demised Premises: Landlord has leased to Tenant and
Tenant has leased from Landlord the Demised Premises.
6. Term: The term of the Lease shall commence on
April 16, 1999 and shall expire on April 30, 2004, unless sooner terminated
pursuant to the terms and provisions of the Lease; provided, however, Tenant
shall have the right to extend the term of the Lease for three (3) additional
terms of five (5) years each.
7. Right of First Refusal: Tenant shall have the right of
first refusal if Landlord receives a bona fide offer to purchase all or any
portion of the Demised Premises at any time during the term of the Lease, as the
same may be extended.
8. Notice: This Memorandum of Lease does not set forth
all of the material terms or conditions of the Lease. This Memorandum of Lease
is not intended to, and does not and shall not, amend, modify, diminish or
affect in any way the Lease or the construction or interpretation thereof or any
rights or obligations of any of the parties thereto. The sole purpose of this
Memorandum of Lease is to give notice of the Lease and of certain of its terms,
covenants and conditions.
<PAGE> 31
IN WITNESS WHEREOF, the undersigned have caused this
Memorandum of Lease to be executed by their duly authorized representatives as
of the date first above written.
LANDLORD:
GOWING LEASING COMPANY, a general
partnership
By:________________________________
Name:
Its:
TENANT:
PACTUCO ACQUISITION, INC., a Dela-
ware corporation
By:________________________________
Name:
Its:
3
<PAGE> 32
STATE OF _________________ )
)
COUNTY OF ________________ )
On ___________________, before me, the undersigned, a Notary
Public in and for said State, personally appeared ___________________________,
as ________________________, of GOWING LEASING COMPANY, a general partnership,
personally known to me or proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and acknowledged
to me that he/she executed the same in his/her authorized capacity, and that by
his/her signature on the instrument the entity upon behalf of which the person
acted executed the instrument.
WITNESS my hand and official seal.
____________________________________
[SEAL] Notary Public
My commission expires:_____________
STATE OF _________________ )
)
COUNTY OF ________________ )
On ___________________, before me, the undersigned, a Notary
Public in and for said State, personally appeared ___________________________,
as ________________________, of PACTUCO ACQUISITION, INC., a Delaware
corporation, personally known to me or proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the entity upon behalf of which
the person acted executed the instrument.
WITNESS my hand and official seal.
____________________________________
[SEAL] Notary Public
My commission expires:_____________
<PAGE> 33
EXHIBIT A
Legal Description
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AT MARCH 31, 1999 AND THE CONSOLIDATED STATEMENT OF
OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> MAR-31-1999
<CASH> 6,111
<SECURITIES> 0
<RECEIVABLES> 85,079
<ALLOWANCES> 3,152
<INVENTORY> 84,784
<CURRENT-ASSETS> 178,033
<PP&E> 422,024
<DEPRECIATION> 173,623
<TOTAL-ASSETS> 574,715
<CURRENT-LIABILITIES> 108,241
<BONDS> 417,949
0
0
<COMMON> 209
<OTHER-SE> 27,539
<TOTAL-LIABILITY-AND-EQUITY> 574,715
<SALES> 143,208
<TOTAL-REVENUES> 143,208
<CGS> 106,016
<TOTAL-COSTS> 106,016
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,250
<INCOME-PRETAX> 10,180
<INCOME-TAX> 3,987
<INCOME-CONTINUING> 6,193
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 6,193
<EPS-PRIMARY> 0.30
<EPS-DILUTED> 0.29
</TABLE>
