EXHIBIT 5.2
-----------
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE. IT MAY NOT BE SOLD OR OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THAT ACT AND SUCH LAWS OR UNLESS SUCH
TRANSFER IS MADE PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
EFTC CORPORATION
July 14, 2000
ALLONGE TO
SENIOR SUBORDINATED EXCHANGEABLE NOTE
DUE JUNE 30, 2006
REFERENCE IS MADE to that certain Senior Subordinated Exchangeable
Note due June 30, 2006, dated March 30, 2000 (the "Note"), and in the original
principal amount of $54,000,000, issued by EFTC CORPORATION, a Colorado
corporation (the "Company"), to ▇▇▇▇▇▇-▇▇▇▇ FUNDING, L.L.C., a Delaware limited
liability company ("Holder"), or its registered successors or assigns.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be bound hereby, the Company and Holder hereby
agree as follows:
1. The Note is hereby amended as follows, effective on the date hereof:
(a) Section 2 of the Note is amended to read in its entirety as follows:
2. Exchange.
--------
Upon the consummation of a Successful Tender Offer (as
defined in the Purchase Agreement), the Notes shall automatically be
exchanged for and replaced by 8.875% Senior Subordinated Convertible
Notes due June 30, 2006 ("Convertible Notes") substantially in the
form attached as Exhibit A to the Allonge to the Notes, dated July 14,
2000, in an aggregate principal amount equal to the aggregate
principal amount of Notes then outstanding, plus accrued interest.
(b) Section 7(i) of the Note is amended to read in its entirety as
follows:
(i) Limitation on Additional Indebtedness. The Company will not,
-------------------------------------
and will not permit any of its subsidiaries to, directly or
indirectly, create, incur, issue, assume, guarantee or otherwise
become or remain directly or indirectly liable with respect to any
Indebtedness other than (A) the Indebtedness represented by the Notes,
(B) Senior Debt, (C) the Indebtedness represented by the Promissory
Note dated March 30, 2000 payable to the ▇▇▇▇▇▇▇ Family Limited
Partnership in the principal amount of $3,000,000 (D) other
Indebtedness in aggregate principal amount of no greater than
$5,000,000, and (E) the Indebtedness represented by that certain
Senior Subordinated Exchangeable Note, due June 30, 2006, dated July
14, 2000, issued by the Company to ▇▇▇▇▇▇-▇▇▇▇ FUNDING, L.L.C., a
Delaware limited liability company ("Holder"), in an original
principal amount of $14,000,000.
2. Except as otherwise expressly provided herein, the Note shall remain in full
force and effect as originally issued.
3. Holder represents and warrants that it is the sole holder of the Note as of
the date hereof, and covenants and agrees to firmly affix an original
counterpart of this Allonge to the Note, whereupon it shall become a part
thereof.]
4. This Allonge may be executed in any number of counterparts, all of which
shall be considered one and the same agreement and instrument.
IN WITNESS WHEREOF, the undersigned have caused this Allonge to be
executed, delivered and affixed to the Note as and for an allonge thereto, all
on and as of the day and year first above written.
EFTC CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Chairman
▇▇▇▇▇▇-▇▇▇▇ FUNDING, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Manager
2
EXHIBIT A
TO ALLONGE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE. IT MAY NOT BE SOLD OR OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THAT ACT AND SUCH LAWS OR UNLESS SUCH
TRANSFER IS MADE PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
EFTC CORPORATION
_______ __, 2000
SENIOR SUBORDINATED CONVERTIBLE NOTE
DUE JUNE 30, 2006
No: 0001 U.S. $______________
EFTC CORPORATION, a Colorado corporation (the "Company"), for value
received, promises to pay to the order of ▇▇▇▇▇▇-▇▇▇▇ FUNDING, L.L.C., a
Delaware limited liability company ("Holder"), or its registered successors or
assigns, on June 30, 2006 (or such earlier date as this Note shall become due
and payable), the principal amount of $__________ (or such lesser or greater
principal amount as is then unpaid) and to accrue interest (computed on the
basis of a 360-day year of twelve 30-day months) on the unpaid principal amount
hereof (and on the principal balance of any Accrual Note (as defined in Section
9) issued pursuant to Section 1(b) below) at the rate of 8.875% per annum,
compounded quarterly, commencing on the date hereof for this Note (and on the
date of issuance for any Accrual Note). The principal and interest on this Note
(and on any Accrual Note) is payable when due in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts by federal funds bank wire transfer. Certain
capitalized terms shall have the meanings specified in Section 10 hereof. This
Note is issued in exchange for the Company's Senior Subordinated Exchangeable
Note due June 30, 2006 (pursuant to Section 2) which was issued pursuant to that
certain Securities Purchase Agreement, dated as of March 30, 2000, by and
between the Company and Holder (the "Purchase Agreement").
1. The Note.
---------
Interest accruing from the date of issuance through _______ __, 2000, shall
be added to the principal amount of this Note on _______ __, 2000, or, at the
Company's option, shall be paid by the issuance of an Accrual Note. Thereafter,
interest hereon (and on any Accrual Note) shall accrue in arrears on _________
__, _______ __, ______ __ and _______ __ of each year, commencing on _______ __,
2000 (each a "Payment Date"). All interest which has accrued as of any Payment
Date shall be added to the principal amount of this Note unless the Company
elects to issue an Accrual Note therefor. In the event that an Accrual Note is
not actually issued and delivered for any accrued and unpaid interest on any
Payment Date, an Accrual Note in the aggregate principal amount of such accrued
and unpaid interest shall be deemed to have been issued to the Holder on such
Payment Date, and the amount of such accrued and unpaid interest shall be added
to the principal amount of this Note. Interest shall accrue on the unpaid
principal balance of Notes until the principal amount of the Notes shall have
been paid in full. The Company may treat the Person in whose name this Note is
registered as the owner hereof for the purpose of receiving payment and for all
other purposes.
2. Mandatory Redemption.
---------------------
(a) The Company will be obligated to redeem the Notes, at the option of
Holder, in whole or in part, upon the occurrence of a Change of Control at the
redemption price as set forth in this Section 2 (the "Redemption Price").
(b) The Redemption Price shall be an amount equal to the sum of (i) 100%
of the principal amount of the Notes, (ii) the accrued and unpaid interest to
the Mandatory Redemption Date and (iii) an amount equal to the interest, if any,
which would accrue on this Note from the Mandatory Redemption Date up to and
including March 30, 2003.
3. Redemption Procedures.
----------------------
(a) Upon the occurrence of a Change of Control, the Company shall mail a
notice of redemption to the Holders advising Holders of the occurrence of a
Change of Control. Within 60 days of receipt of such notice from the Company,
Holders, at their sole option, may elect to have the Company mandatorily redeem
the Notes, in whole or in part, by a mailing a notice to the Company of such
election. The notice shall: (i) identify the Notes to be redeemed; (ii) state
the applicable Redemption Price; and (iii) state the Mandatory Redemption Date.
(b) The redemption date shall be the date set forth as such in the
relevant notice from Holders pursuant to Section 3(a) which shall be a date not
earlier than the 5th day nor later than the 30th day following the mailing of
such notice (the "Mandatory Redemption Date").
(c) Once notice of redemption is given, Notes called for redemption become
due and payable on the Mandatory Redemption Date at the Redemption Price.
Interest on the Notes called for redemption shall cease to accrue on and after
the Mandatory Redemption Date.
4. Subordination.
--------------
(a) Agreement to Subordinate.
------------------------
The Company and Holders agree that the indebtedness evidenced by this
Note is subordinated in right of payment, to the extent and in the manner
provided in this Section 4, to the prior payment in full, in cash, of all Senior
Debt (as defined below), (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Debt.
A distribution may consist of cash, securities or other property, by
set-off or otherwise.
(b) Liquidation; Dissolution; Bankruptcy.
------------------------------------
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, in
an assignment for the benefit of creditors or any marshalling of the Company's
assets and liabilities:
(1) holders of Senior Debt shall be entitled to receive payment
in full, in cash, of all obligations due in respect of such Senior Debt
(including interest after the commencement of any such proceeding at the
rate specified in the applicable Senior Debt) before any Holder shall be
entitled to receive any payment with respect to its Note (except that
Holders may receive Permitted Junior Securities); and
(2) until all obligations with respect to Senior Debt (as
provided in subsection (1) above) are paid in full, in cash, any
distribution to which Holders would be entitled but for this Section 4
shall be made to holders of Senior Debt (except that Holders may receive
Permitted Junior Securities), as their interests may appear.
(c) Default on Senior Debt.
----------------------
(i) The Company may not make any payment or distribution to any
Holder in respect of obligations with respect to the Note and may not acquire
from any Holder any loans for cash or property (other than Permitted Junior
Securities) and no Holder may accept or retain any such payments until all
principal and other obligations with respect to the Senior Debt have been paid
in full, in cash, if:
(A) a default in the payment of any principal or other
obligations with respect to Senior Debt occurs and is continuing beyond any
applicable grace period in the agreement, indenture or other document
governing such Senior Debt; or
(B) a default, other than a payment default, on Senior Debt
occurs and is continuing that permits holders of the Senior Debt to
accelerate its maturity and the Company and the Holder Representative
receives a notice of the default (a "Payment Blockage Notice"). If the
Company and the Holder Representative receive from the Agent under the
Credit Agreement any such Payment Blockage Notice, no subsequent Payment
Blockage Notice
2
shall be effective for purposes of this Section 4(c) unless and until at
least 360 days shall have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice. No nonpayment default that
existed or was continuing on the date of delivery of any Payment Blockage
Notice to the Company shall be, or be made, the basis for a subsequent
Payment Blockage Notice unless such nonpayment default shall have been
waived for a period of not less than 180 days or unless the holder of the
Senior Debt was not aware of such default.
The Company may and shall resume payments on and distributions in
respect of the Notes and the Holder may receive and retain the same upon the
earlier of:
(1) the date upon which the default is cured or waived, or
(2) in the case of a default referred to in Section 4(c)(ii) hereof,
179 days pass after notice is received if the maturity of such Senior Debt has
not been accelerated,
if this Section 4 otherwise permits the payment or distribution at the time of
such payment or distribution.
(ii) No Holder may take any actions to enforce any of its available
remedies upon the occurrence of a Default or an Event of Default, for a period
of 90 days following the receipt by the Company and the Holder Representative of
a notice from the Agent under the Credit Agreement any default with respect to
the Senior Debt; provided, that such 90 day period shall immediately end in the
event (x) of a Default under Section 6(a)(i)(G) or (H), (y) the Senior Debt is
accelerated in accordance with its terms, or (z) the holders of the Senior Debt
act to enforce their available remedies upon the occurrence of a default on the
Senior Debt.
(d) Acceleration of Securities.
--------------------------
If the Note is accelerated because of an Event of Default, the Company
shall promptly notify holders of Senior Debt of the acceleration.
(e) When Distribution Must Be Paid Over.
-----------------------------------
In the event that Holder receives any payment of any obligations with
respect to the Note at a time when such payment is prohibited by Section 4(c)
hereof, such payment shall be held by the Holder in trust for the benefit of,
and shall be paid forthwith over and delivered, upon written request, to, the
holders of Senior Debt under the Senior Debt Documents pursuant to which Senior
Debt may have been issued, as their respective interests may appear, for
application to the payment of all obligations with respect to Senior Debt
remaining unpaid to the extent necessary to pay such obligations in full, in
cash, in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.
(f) Notice by Company.
-----------------
The Company shall promptly notify the Holders of any facts known to
the Company that would cause a payment of any obligations with respect to the
Note to violate this Section 4, but failure to give such notice shall not affect
the subordination of the Note to the Senior Debt as provided in this Section 4.
(g) Subrogation.
-----------
After all Senior Debt is paid in full, in cash, and until the Note is
paid in full, the Holders shall be subrogated (equally and ratably with all
other indebtedness pari passu with the Note) to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt and all other rights,
claims and collateral security of the holders of Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Section 4 to holders of Senior
Debt that otherwise would have been made to the Holders is not, as between the
Company, on one hand, and the Holder, on the other hand, a payment by the
Company on Senior Debt.
3
(h) Relative Rights.
---------------
This Section 4 defines the relative rights of the Holders and holders
of Senior Debt. Nothing in this Note shall:
(a) impair, as between the Company, on one hand, and the Holders, on
the other hand, the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the Note in accordance with
its terms;
(b) affect the relative rights of the Holders and creditors of the
Company other than their rights in relation to holders of Senior Debt; or
(c) prevent any lender from exercising its available remedies upon a
Default or Event of Default, subject to the rights of holders of Senior Debt to
receive distributions and payments otherwise payable to the lenders, and except
as set forth in Section 4(c)(ii) above.
If the Company fails because of this Section 4 to pay principal of or
interest on the Note on the Payment Date, the failure is still a Default or
Event of Default.
(i) Subordination May Not Be Impaired by the Company.
------------------------------------------------
No right of any holder of Senior Debt to enforce the subordination of
the indebtedness evidenced by any loans shall be impaired by any act or failure
to act by the Company or any Holder or by the failure of the Company or Holders
to comply with the terms of this Note.
(j) Distribution or Notice to Representative.
----------------------------------------
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
representative.
Upon any payment or distribution of assets of the Company referred to
in this Section 4 the Holders shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction or upon any certificate of such
representative or of the liquidating trustee or agent or other Person making any
distribution to the Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Debt and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Section 4.
(k) Authorization to Effect Subordination.
-------------------------------------
The Holders authorize and direct the Company to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Section 4.
(l) Amendments.
----------
The provisions of this Section 4 shall not be amended or modified
without the written consent of the holders of all Senior Debt.
5. Covenants.
----------
The Company covenants and agrees that so long as this Note shall be
outstanding:
(a) Payment of Notes; Satisfaction of Obligations.
---------------------------------------------
(i) The Company shall pay the principal of and interest on the Notes
on the dates and in the manner provided in the Notes.
(ii) If there has occurred and is continuing any Event of Default,
defined below, under Sections 6(a)(i)(A) or 6(a)(i)(B) hereof, then to the
extent lawful, the Company shall pay interest (including interest accruing
4
after the commencement of any proceeding under any Bankruptcy Law) on all unpaid
amounts outstanding under the Notes (including overdue installments of principal
or interest) at the Default Rate, compounded quarterly.
(iii) Subject to performance by all other parties thereto of
their respective obligations thereunder, the Company shall satisfy in all
material respects all of its obligations under the Transaction Documents.
(b) Commission Reports, Financial Reports. The Company shall deliver to
-------------------------------------
the holders within 15 days after it files them with the Commission copies of any
annual reports and any information, documents and other reports that the Company
is required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act.
(c) Compliance Certificate. The Company shall deliver to the Holders,
----------------------
within 45 days after the end of each fiscal quarter and within 90 days after the
end of each fiscal year of the Company an Officers' Certificate stating that a
review of the activities of the Company and its subsidiaries during the
preceding fiscal quarter or fiscal year has been made with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations
under this Agreement, and further stating, as to each such officer signing such
certificate, that to his knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Agreement (or, if a Default
or Event of Default shall have occurred, describing all such Defaults or Events
of Default of which he may have knowledge) and that to his knowledge no event
has occurred and remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Notes in accordance with their
terms are prohibited or if such event has occurred, a description of the event.
So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, the Officers' Certificate
accompanying the fiscal year end financial statements delivered pursuant to this
Section 5 shall be accompanied by a written statement of independent public
accountants (which shall be one of the "Big Five" accounting firms) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention which would lead them to believe that the
Company has violated any provisions of this Note or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation. The
Company will deliver to the Holders, forthwith upon becoming aware of (i) any
Default or Event of Default or (ii) any event of default under any other loan
agreement, mortgage, indenture or instrument referred to in Section 4, an
Officers' Certificate specifying in reasonable detail such Default, Event of
Default or default and the nature of any remedial or corrective action the
Company proposes to take with respect thereto.
(d) Stay, Extension and Usury Laws. The Company covenants and agrees (to
------------------------------
the extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter
enforced, that may affect the covenants or the performance of its obligations
under this Note; and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Holders, but will suffer and permit the
execution of every such power as though no such law has been enacted.
(e) Limitation on Restricted Payments. The Company shall not, directly or
---------------------------------
indirectly:
(i) declare or pay any dividend on, or make any distribution
to the holders (as such) in respect of, any shares of its capital stock, other
than dividends on the Preferred Stock in accordance with the terms thereof.
(ii) purchase, redeem or otherwise acquire or retire for value
any Equity Interest of the Company or any subsidiary of the Company (other than
any such Equity Interest of a directly or indirectly wholly-owned subsidiary of
the Company) or other Affiliate of the Company;
(iii) permit any subsidiary of the Company to declare or pay any
dividend on, or make any distribution to the holders (as such) in respect of,
any shares of its capital stock except to the Company or another directly or
indirectly wholly-owned subsidiary of the Company; or
(iv) permit any subsidiary of the Company to purchase, redeem
or otherwise retire for value any Equity Interests of it, the Company or any
Affiliate of the Company (other than any such Equity Interests owned by the
Company or any other directly or indirectly wholly owned subsidiary of the
Company) .
5
(f) Corporate Existence. The Company will do or cause to be done all
-------------------
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate existence of each of its subsidiaries in accordance
with the respective organizational documents of each of them and the corporate
rights (charter and statutory), licenses and franchises of the Company and its
subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or corporate existence, if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and its
subsidiaries taken as a whole and that the loss thereof will not cause a
Material Adverse Effect.
(g) Taxes. The Company shall, and shall cause its subsidiaries to, pay
-----
prior to delinquency all material taxes, assessments and governmental levies
except as contested in good faith and by appropriate proceedings.
(h) Investment Company Act; United States Real Property Holding
-----------------------------------------------------------
Corporation.
-----------
Neither the Company nor any of its subsidiaries shall become an investment
company subject to registration under the Investment Company Act of 1940, as
amended. Neither the Company nor any of its subsidiaries shall become a United
States real property holding corporation as defined in Section 897(c)(2) of the
Internal Revenue Code of 1986, as amended.
(i) Limitation on Additional Indebtedness. The Company will not, and will
-------------------------------------
not permit any of its subsidiaries to, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise become or remain directly or indirectly
liable with respect to any Indebtedness other than (A) the Indebtedness
represented by the Notes, (B) Senior Debt, (C) Indebtedness represented by a
Promissory Note dated March 30, 2000 payable to the ▇▇▇▇▇▇▇ Family Limited
Partnership I in the principal amount of $3,000,000, and (D) other Indebtedness
in aggregate principal amount of no greater than $5,000,000 .
(j) Limitation on Transactions With Affiliates.
------------------------------------------
(i) Neither the Company nor any of its subsidiaries shall
sell, lease, transfer or otherwise dispose of any of its properties or assets to
or purchase any property or assets from, or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, an
Affiliate of the Company (but specifically excluding for these purposes Holders
and their respective Affiliates) (an "Affiliate Transaction"), except on terms
that are no less favorable to the Company or the relevant subsidiary than those
that could have been obtained in a comparable transaction by the Company or such
subsidiary from an unrelated person; provided, however, that the Company and its
wholly-owned subsidiaries may engage in any sale, lease, transfer, or other
disposition of property among themselves and may enter into any contract,
agreement, understanding, loan, advance or guarantee among themselves.
(ii) In addition, neither the Company nor any subsidiary may
enter into an Affiliate Transaction or series of related Affiliate
Transactions involving or having a potential value of more than $1,000,000
unless such transaction has been approved by the holders of at least a
majority in principal amount of the Notes, such approval not to be
unreasonably withheld; provided, however, that the Company and its wholly-
owned subsidiaries may engage in any sale, lease, transfer, or other
disposition of property among themselves and may enter into any contract,
agreement, understanding, loan, advance or guarantee among themselves.
(k) Restrictions on Liens. The Company will not itself, and will not
---------------------
permit any subsidiary, to create or suffer to exist any Liens upon any assets of
the Company or any subsidiary or any shares of capital stock of any subsidiary,
in either case now owned or hereafter acquired; provided, however, that this
Section 5(k) shall not prohibit the creation or continuing existence of any
Permitted Liens.
(l) Sale of Assets.
--------------
(i) Neither the Company nor any of its subsidiaries shall,
without the consent of the holders of at least a majority in principal amount of
the Notes, sell, lease, convey or otherwise dispose (whether in one transaction
or a series of transactions) of any assets (including capital stock of any
subsidiaries), other than sales of inventory in the ordinary course of business
(an "Asset Sale"), if the aggregate net proceeds of all Asset Sales during any
fiscal year exceed $2,000,000; excluding payments under the GECC Payment
Agreement.
(ii) Neither the Company nor any of its subsidiaries shall,
without the consent of the holders of at least a majority in principal amount of
the Notes, enter into any Asset Sale if the consideration paid is less than an
amount equal to the fair market value of such asset; provided, however, that
assets with a fair market value of not greater than $2,000,000 in the
6
aggregate may be sold during any fiscal year without regard to the foregoing
requirement if the amount of consideration received for such assets is promptly
applied to the purchase of comparable assets.
(iii) At least 90% of the consideration for each Asset Sale
received by the Company or such subsidiary shall be in the form of cash;
provided, however, that the amount of (A) any liabilities (as shown on the
Company's or such subsidiary's most recent balance sheet or in the notes
thereto) of the Company or any subsidiary that are assumed by the transferee of
any such assets or stock sold, leased, conveyed or disposed of and (B) any notes
or other obligations received by the Company or any subsidiary from such
transferee that are immediately converted by the Company or such subsidiary into
cash, shall be deemed to be cash for purposes of this Section 5(l)(iii).
(m) Ownership of Subsidiaries. Except as permitted by Section 5(l) above,
-------------------------
the Company shall maintain (along with one or more subsidiaries in the case of
an indirect subsidiary) good and valid title to those Equity Interests of each
of its subsidiaries owned by it, free and clear of any Lien other than Permitted
Liens. Notwithstanding the provisions of Section 5(l) above, neither the Company
nor any subsidiary shall dispose of the capital stock of any subsidiary, if,
after giving effect to such disposition, the Company would own less than a
majority of the outstanding economic and voting interests in such subsidiary or
former subsidiary.
(n) Limitation on Dividend and Other Payment Restrictions Affecting
---------------------------------------------------------------
Subsidiaries. Except as otherwise provided for herein or in the Senior
------------
Debt Documents, the Company will not, and will not permit any subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction on the ability of any
subsidiary of the Company to (a) pay dividends or make any other distributions
on its capital stock or any other interest or participation in, or measured by,
its profits owned by, or pay any Indebtedness owed to, the Company or a
subsidiary of the Company, (b) make loans or advances to the Company or a
subsidiary of the Company or (c) transfer any of its properties or assets to the
Company or to any subsidiary of the Company, except for such encumbrances or
restrictions existing under or by reason of (i) any restrictions, with respect
to a subsidiary of the Company that is not a subsidiary of the Company on the
date hereof, in existence at the time such Person becomes a subsidiary of the
Company; or (ii) any restrictions existing under any agreement that refinances
or replaces the agreements containing the restrictions in clause (i); provided
that the terms and conditions of any such restrictions are no less favorable to
the Holders than those under or pursuant to the agreement evidencing the
Indebtedness refinanced. Nothing contained in this Section 5(n) shall prevent
the Company or any of its subsidiaries from entering into any agreement
permitting or providing for the incurrence of Liens otherwise permitted by
Section 5(k).
(o) Compliance with Laws. The Company will, and will cause its
--------------------
subsidiaries to, comply with all Federal, state, local or foreign statutes,
ordinances, governmental rules and regulations, judgments, orders and decrees to
which any of them is subject, and obtain and keep in effect all licenses,
permits, franchises and other governmental authorizations necessary to the
ownership or operation of their respective properties or the conduct of their
respective businesses, except to the extent that the failure to so comply or
obtain and keep in effect would not have a Material Adverse Effect .
(p) When Company May Merge, Etc.
---------------------------
(i) The Company will not merge with or into, or sell, convey,
or transfer, or otherwise dispose of all or substantially all of
its property and assets (as an entirety or substantially as an
entirety in one transaction or a series of related transactions)
to any Person or permit any Person to merge with or into the
Company, unless:
(A) either the Company shall be the continuing Person
or the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that
acquired such property and assets of the Company shall be an
entity organized and validly existing under the laws of the
United States of America or any state or jurisdiction thereof and
shall expressly assume, by amendments to this Note, executed and
delivered to Holder, all of the obligations of the Company, on
this Note;
(B) immediately after giving effect, on a pro forma
basis, to such transaction, no Default or Event of Default shall
have occurred and be continuing; and
(C) the Company will have delivered to the Holders of
a majority in principal amount of the Notes an Officers'
Certificate and an opinion of counsel, in each case stating that
such consolidation, merger
7
or transfer and such supplemental indenture complies with this
provision and that all conditions precedent provided for herein
relating to such transaction have been complied with.
(ii) Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company, in accordance with Section
5(p)(i), the successor Person formed by such consolidation or into which the
Company is merged or to which such transfer is made, shall succeed to, be
substituted for, and may exercise every right and power of the Company under
this Note with the same effect as if such successor Person had been named
therein as the Company and the Company shall be released from the obligations
under this Note.
(q) Office or Agency. The Company will maintain an office or agency in
----------------
metropolitan Denver, Colorado (or in any future principal place of business of
the Company with respect to which the Holders have been notified pursuant to
Section 9.1 of the Purchase Agreement) where notices, presentations and demands
to or upon the Company in respect of this Note may be given or made.
(r) Directors. The Company's Board of Directors shall at all times be
---------
composed of no more than 12 directors unless approved by Holders of a majority
in principal amount of the Notes. The Holder shall have the right to nominate a
number of persons for election as members of the Board of Directors of the
Company such that the number nominated by Holder shall compose a majority of the
total number of directors on the Board of Directors. The Company hereby agrees
to call annual shareholders' meetings for the election of directors and to
recommend that the Company's shareholders votes in favor of such director-
nominees of the Holders at any such meeting called for election of directors;
provided, that the Board of Directors of the Company shall not be required to
recommend for shareholder vote any person whom the Board of Directors has
reasonably concluded after due inquiry lacks the requisite moral fitness to sit
on the Board of Directors. The Company agrees that the members of the Board of
Directors nominated by the Holders shall be appointed to each committee of the
Board of Directors, including, but not limited to, the compensation committee;
provided, that both such persons need not be appointed to the audit committee if
such appointments would cause a breach of the continued listing requirements for
the Common Stock on the Nasdaq Stock Market.
(s) Approval of Significant Transactions. The Company shall not engage in
------------------------------------
any Significant Transaction, without the prior written approval of the Holders
of a majority in principal amount of the Notes. For purposes of this Section
7(s), a "Significant Transaction" means (i) one or a series of related
transactions, in which the Company obtains debt financing (excluding the Senior
Debt) in an aggregate amount in excess of $1,000,000, (ii) any Material
Acquisition or Material Disposition, or (iii) any adoption of, or amendment to,
any Incentive Compensation Plan. A "Material Acquisition" means any acquisition
(directly or indirectly) (whether by merger, purchase of securities, purchase of
assets or otherwise) by the Company or any subsidiary of the Company, involving
aggregate consideration with a value of $2,000,000 or more; provided, that a
--------
Material Acquisition shall not include capital expenditures made in the ordinary
course of business. A "Material Disposition" means any sale, transfer or other
disposition of assets of the Company (whether by merger, sale of stock, sale of
assets or otherwise) or its subsidiaries which assets either (A) have a fair
market value of $2,000,000 or more, or (B) represent more than 5% of the lesser
of net book value or fair market value of the tangible assets of the Company on
a consolidated basis. An "Incentive Compensation Plan" means any arrangement,
policy or plan of the Company providing for deferred compensation, profit-
sharing bonuses, stock appreciation rights, stock purchases or other forms of
incentive compensation to any director, employee, former employee, consultant,
advisor or agent of the Company which by its terms results, or but for deferral
would result, in cash payments by the Company to such person.
(t) Certain Payments. The Company shall comply with the requirements of
----------------
the Foreign Corrupt Practices Act and neither the Company nor any director,
officer, agent, or employee of the Company, or any other Person associated with
or acting for or on behalf of the Company shall directly or indirectly (i) make
any contribution, gift, bribe, payoff, influence payment, kickback, or other
payment to any governmental official, regardless of form, whether in money,
property, or services (A) to obtain favorable treatment in securing business,
(B) to pay for favorable treatment for business secured, or (C) to obtain
special concessions or for special concessions already obtained, for or in
respect of the Company or any Subsidiary of the Company, (ii) make any
contribution, gift, bribe, payoff, influence payment, kickback, or other payment
to any person, private or public, regardless of form, whether in money,
property, or services, in violation of any law, or (iii) establish or maintain
any fund or asset that is not recorded in the books and records of the Company.
8
6. Defaults and Remedies.
----------------------
(a) Events of Default.
-----------------
(i) An "Event of Default" occurs if:
(A) the Company defaults in the payment of the
principal of or accrued interest on any Note when the same becomes due and
payable at maturity, upon redemption or otherwise;
(B) the Company fails to comply in any material
respect with any of the agreements, covenants, or provisions of the Notes
and the Default continues for the period and after the notice specified
below;
(C) [intentionally omitted];
(D) if any of the representations or warranties of the
Company made in or in connection with this Note or the Purchase Agreement
were untrue when made in any respect materially adverse to the Company and
its subsidiaries taken as a whole;
(E) an event of default occurs under any loan
agreement, note, mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness of
the Company or any subsidiary for borrowed money (or the payment of which
is guaranteed by the Company or a subsidiary), whether such Indebtedness or
guarantee now exists or shall be created hereafter, which default results
in the acceleration of such Indebtedness prior to its expressed maturity
and the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness the maturity of which is so
accelerated and has not been paid, aggregates $500,000 or more;
(F) a final judgment or final judgments for the
payment of money are entered by a court or courts of competent jurisdiction
against the Company or any subsidiary of the Company and such remains
undischarged for a period (during which execution shall not be effectively
stayed) of 30 days, provided that the aggregate of all such judgments
exceeds $1,000,000;
(G) The Company or any subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief
against it in an involuntary case,
(3) consents to the appointment of a Custodian of
it or for all or substantially all of its
property,
(4) makes a general assignment for the benefit
of its creditors, or
(5) generally is unable to pay its debts as the
same become due; or
(H) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(1) is for relief against the Company or any of
its subsidiaries in an involuntary case,
(2) appoints a Custodian of the Company or any of
its subsidiaries or for all or substantially all
of its property, or
(3) orders the liquidation of the Company or any
of its subsidiaries, and the order or decree
remains unstayed and in effect for 60 days.
9
(ii) The term "Bankruptcy Law" means title 11, U.S. Code or any
similar federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
(iii) A Default under clause (B) or (C) (other than a Default
under Section 5(e), (i), (l), (m), or (n), which Default shall be an Event of
Default without the notice or passage of time specified in this paragraph), (E)
(other than a Default resulting from the acceleration of any indebtedness
described therein, which Default shall be an Event of Default without the notice
or passage of time specified in this paragraph) or (F) is not an Event of
Default until the holders of at least a majority in aggregate principal amount
of the then outstanding Notes notify the Company of the Default and the Company
does not cure the Default within 30 days after receipt of the notice. The notice
must specify the Default, demand that it be remedied and state that the notice
is a "Notice of Default."
(b) Acceleration of Notes.
---------------------
If an Event of Default (other than an Event of Default
specified in clauses (G) and (H) of Section 6(a)(i)) occurs and is continuing,
the holders of at least a majority in aggregate principal amount of the then
outstanding Notes, by notice to the Company, may declare the unpaid principal of
and any accrued interest on all the Notes to be due and payable. Immediately
upon such declaration, the principal and interest shall be due and payable. If
an Event of Default specified in clause (G) or (H) of Section 6(a)(i) occurs,
such an amount shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of any holder. The holders of
at least a majority in principal amount of the then outstanding Notes by notice
to the Company may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of the acceleration.
(c) Other Remedies.
--------------
(i) If an Event of Default occurs and is continuing,
holders of the Notes may pursue any available remedy to collect the payment of
principal or interest on the Notes or to enforce the performance of any
provision of the Notes.
(ii) A delay or omission by any holder of any Notes in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
(d) Waiver of Past Defaults.
-----------------------
The holders of at least a majority in principal amount of
the then outstanding Notes by notice to the Company may waive an existing
Default or Event of Default and its consequences except a continuing Default or
Event of Default in the payment of the principal of or interest on any Notes.
(e) Rights of Holder to Receive Payment.
-----------------------------------
Notwithstanding any other provision of this Agreement, the
right of any Holder of a Note to receive payment of principal and interest on
the Note, on or after the respective due dates expressed in the Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the holder.
(f) Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under
this Agreement, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
7. Modification of Notes.
----------------------
The Notes may be modified, and any of the terms thereof
waived, or any consent or approval required thereunder given, without prior
notice to any Holder but with the written consent of the Holder of a majority in
principal
10
amount of the Notes then outstanding. Subject to the provisions of the Purchase
Agreement, the Holders of a majority in principal amount of the Notes then
outstanding may waive compliance by the Company with any provision of the Notes
without prior notice to any Holder. However, without the consent of each Holder
affected, an amendment, supplement or waiver may not (a) alter the amount of
Notes whose Holders must consent to an amendment, supplement or waiver, (b)
alter the rate or the time for payment of interest on any Note, (c) alter the
principal or the maturity of any Note or alter the redemption or prepayment
provisions with respect thereto or (d) make any Note payable in money or
property other than as stated in the Notes.
8. Conversion.
-----------
(a) Conversion Privilege. The Holder of this Note may convert it into
--------------------
Common Stock at any time. The number of shares issuable upon conversion of a
Note is determined as follows: Divide the principal amount to be converted by
the conversion price in effect on the conversion date. Round the result upwards
to the nearest 1/100th of a share. The initial conversion price, as of the
Original Issue Date, is $2.58 per share. The conversion price is subject to
adjustment as set forth herein. The Holder may convert all or any portion of
this Note at any time or from time to time. Provisions of this Note that apply
to conversion of all of the Note also apply to conversion of a portion of it.
(b) Automatic Conversion. The Notes shall automatically be converted
---------------------
into shares of Common Stock upon a Trading Price Conversion Event in an amount
equal to the principal amount of the Notes, plus the accrued and unpaid interest
to the Conversion Date divided by the then current conversion price.
(c) Conversion Procedure. To convert this Note the Holder must give
--------------------
notice to the Company setting forth the amount of this Note which Holder is
converting. The date on which the Holder gives such notice is the effective date
of the conversion (the "Conversion Date"). As soon as practical, the Company
shall deliver to Holder a certificate for the number of full shares of Common
Stock issuable upon the conversion with any fractional share being rounded up to
a full share. The person in whose name the certificate is registered shall be
treated as a shareholder of record on and after the conversion date. No payment
or adjustment will be made for accrued interest on a converted Note or portion
thereof or dividends on any Common Stock issued. Upon a surrender of this Note
if it is converted in part, the Company shall issue to the Holder a new Note
equal in principal amount to the unconverted portion of the Note surrendered.
(d) Fractional Shares. The Company will not issue a fractional share
-----------------
of Common Stock upon conversion of a Note. Instead each fractional share will be
rounded up to a full share.
(e) Taxes on Conversion. If a Holder of a Note converts it, the
-------------------
Company shall pay any documentary, stamp or similar issue or transfer tax due on
the issue of shares of Common Stock upon the conversion. However, the Holder
shall pay any such tax which is due because the shares are issued in a name
other than the Holder's name.
(f) Company to Provide Stock. The Company has reserved and shall
------------------------
continue to reserve out of its authorized but unissued Common Stock or its
Common Stock held in treasury enough shares of Common Stock to permit the
conversion of the Notes in full. All shares of Common Stock which may be issued
upon conversion of the Notes shall be fully paid and non-assessable.
The Company will endeavor to comply with all securities laws
regulating the offer and delivery of shares of Common Stock upon conversion of
Notes and will endeavor to list such shares on each national securities exchange
or inter-dealer securities quotation system on which the Common Stock is listed
or quoted.
(g) Adjustment for Change in Capital Stock. If, on or after the
--------------------------------------
Original Issue Date, the Company:
(i) pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock;
(ii) subdivides its outstanding shares of Common Stock
into a greater number of shares;
(iii) combines its outstanding shares of Common Stock into
a smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of
its capital stock other than Common Stock; or
11
(v) issues by reclassification of its Common Stock any
shares of its capital stock;
then the conversion privilege and the conversion price in effect immediately
prior to such action shall be adjusted so that the Holder of a Note thereafter
converted may receive the number of shares of capital stock of the Company which
he would have owned immediately following such action if he had converted the
Note immediately prior to such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Note upon conversion of it may
receive shares of two or more classes of capital stock of the Company, the
Company shall determine the allocation of the adjusted conversion price between
the classes of capital stock. After such allocation, the conversion privilege
and the conversion price of each class of capital stock shall thereafter be
subject to adjustment on terms comparable to those applicable to Common Stock in
this Section.
(h) When Adjustment May Be Deferred. No adjustment in the conversion
-------------------------------
price need be made unless the adjustment would require an increase or decrease
of at least 1% in the conversion price. Any adjustments that are not made shall
be carried forward and taken into account in any subsequent adjustment.
All calculations under this Article shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be.
(i) When No Adjustment Required. No adjustment need be made for a
---------------------------
transaction referred to in Sections 8(g) if all Noteholders are entitled to
participate in the transaction on a basis and with notice that the Board of
Directors determines to be fair and appropriate in light of the basis and notice
on which holders of Common Stock participate in the transaction. No adjustment
need be made for rights to purchase Common Stock pursuant to a Company plan for
reinvestment of dividends or interest. No adjustment need be made for a change
in the par value or no par value of the Common Stock. To the extent the Notes
become convertible into cash, no adjustment need be made thereafter as to the
cash. Interest will not accrue on the cash.
(j) Notice of Adjustment. Whenever the conversion price is adjusted,
--------------------
the Company shall promptly mail to Noteholders a notice of the adjustment. Such
notice shall be accompanied by a certificate from the Company's independent
public accountants briefly stating the facts requiring the adjustment and the
manner of computing it.
(k) Voluntary Reduction. The Company from time to time may reduce the
-------------------
conversion price by any amount for any period of time if the period is at least
20 days and if the reduction is irrevocable during the period, provided, that in
no event may the conversion price be less than the par value of a share of
Common Stock.
Whenever the conversion price is reduced, the Company shall mail
to Noteholders a notice of the reduction. The Company shall mail the notice at
least 15 days before the date the reduced conversion price takes effect. The
notice shall state the reduced conversion price and the period it will be in
effect.
A reduction of the conversion price does not change or adjust the
conversion price otherwise in effect for purposes of Sections 8(g).
(l) Notice of Certain Transactions. If:
------------------------------
(i) the Company takes any action that would require an
adjustment in the conversion price pursuant to Sections 8(f) and if the
Company does not let Noteholders participate pursuant to Section 8(i);
(ii) there is a liquidation or dissolution of the Company,
the Company shall mail to Noteholders a notice stating the proposed record date
for a dividend or distribution or the proposed effective date of a subdivision,
combination, reclassification, consolidation, merger, transfer, lease,
liquidation or dissolution. The Company shall mail the notice at least 15 days
before such date. Failure to mail the notice or any defect in it shall not
affect the validity of the transaction.
(m) Reorganization of Company. If the Company is a party to a Change of
-------------------------
Control, or a merger which reclassifies or changes its outstanding Common Stock,
upon consummation of such transaction the Notes shall automatically become
12
convertible into the kind and amount of securities, cash or other assets which
the Holder of a Note would have owned immediately after the consolidation,
merger, transfer or lease if the Holder had converted the Note immediately
before the effective date of the transaction. Concurrently with the consummation
of such transaction, the person obligated to issue securities or deliver cash or
other assets upon conversion of the Notes shall executed an amended Note so
providing and further providing for adjustments which shall be as nearly
equivalent as may be practical to the adjustments provided for in this Section
8.
If securities deliverable upon conversion of Notes, as provided above,
are themselves convertible into the securities of an affiliate of the formed,
surviving, transferee or lessee corporation, that issuer shall join in the
amended Note which shall so provide.
If this Section applies, Section 8(g) does not apply.
9. Modification of Notes.
----------------------
The Notes may be modified without prior notice to any Holder but with
the written consent of the Company and the Holders of a majority in principal
amount of the Notes then outstanding. The Holders of a majority in principal
amount of the Notes then outstanding may waive compliance by the Company with
any provision of the Notes, or give any consent or approval required or provided
for under the terms of the Notes, without prior notice to any Holder. However,
without the consent of each Holder affected, an amendment, supplement or waiver
may not (a) alter the amount of Notes whose Holders must consent to an
amendment, supplement or waiver, (b) alter the rate or the time for payment of
interest on any Note, (c) alter the principal or the maturity of any Note or
alter the redemption or prepayment provisions with respect thereto or (d) make
any Note payable in money or property other than as stated in the Notes.
10. Definitions.
------------
The terms defined in this Section 10 shall, for all purposes of this
Note, have the meanings herein specified, unless the context otherwise requires.
"Accrual Notes" means the Accrual Notes issued in respect of the Notes
in lieu of cash interest, each such note requiring the accrual of interest in
accordance with the terms of this Note (including the issuance of additional
Accrual Notes in respect of such interest), commencing from the date of issuance
of such note or from the date such note was deemed to have been issued, at the
rate of 8.875% per annum, computed on the basis of a 360-day year of twelve 30-
day months, for the actual number of days elapsed and containing terms
substantially identical to this Note.
"Affiliate" means with respect to a Person, any other Person that
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. For the purposes
of this definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise.
Without limiting the foregoing, all directors and executive officers of a Person
that is a corporation, all managing members of a Person that is a limited
liability company, and all general partners of a partnership, shall be deemed
Affiliates of such Person for all purposes hereunder.
"Change of Control" shall be deemed to have occurred if, at any time,
(i) any "person" or "group" (as such terms are used for purposes of Sections
13(d) and 14(d) of the Exchange Act, whether or not applicable) other than the
Holders and each of their respective Affiliates, in the aggregate, becomes the
"beneficial owners" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of 33% or more of the outstanding shares of Common Stock of the
Company or has the ability to cause 25% or more of the Board of Directors to be
composed of its nominees, (ii) the directors elected or appointed to the
Company's Board of Directors who were designees of the Holders cease for any
reason to constitute at least a majority of the Company's Board of Directors and
the Holders do not have the ability to designate their replacements or (iii) the
shareholders of the Company approve, or there is consummated without stockholder
approval, a merger or consolidation of the Company with any other entity in
which the shareholders of the Company prior to such transaction hold voting
securities of the surviving entity representing 50% or less of the total votes
outstanding, a plan of complete liquidation of the Company or an agreement for
the sale or disposition by the Company of all or any substantial portion of the
Company's assets or a major division or subsidiary of the Company.
13
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $.01 per share, of
the Company.
"Company" means EFTC Corporation, a Colorado corporation.
"Conversion Date" has the meaning set forth in Section 8(c).
"Credit Agreement" means the Loan and Security Agreement, dated as of
March 30, 2000, by and among the Financial Institutions named therein, Bank of
America, N.A., as Agent, and the Company together with any amendment,
modification or replacement thereof.
"Default" means any event which is, or after notice or passage of
time would be, an Event of Default.
"Default Rate" is 10.875% per annum.
"Equity Interest" means any capital stock or warrants, options or
other rights to acquire capital stock (but excluding any debt security which is
convertible into, or exchangeable for, capital stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Event of Default" shall have the meaning provided in Section 6.
"GAAP" means United States generally accepted accounting principles,
in effect from time to time, consistently applied.
"GECC Payment Agreement" means that certain Agreement dated December
5, 1997, between General Electric Capital Corporation and the Company, regarding
the GE Capital Accelerated Payment Program.
"High Trading Price Conversion Event" shall be deemed to occur if (a)
the Company at the time is maintaining the listing of its Common Stock on the
Nasdaq Stock Market, (b) the Company is in full compliance with all covenants
under the Senior Debt, and (c) the Common Stock has a Trading Price at or above
$7.50 per share for 45 consecutive trading days.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Company's books, and any permitted transferee thereof.
"Holder Representative" means the person designated as such by the
Holders of a majority in principal amount of the Notes, with notice thereof
provided in writing to the Agent under the Credit Agreement.
"Indebtedness" means, as to any Person: (a) all obligations, whether
or not contingent, of such Person for borrowed money (including, without
limitation, reimbursement and all other obligations with respect to surety
bonds, letters of credit and bankers' acceptances, whether or not matured), (b)
all obligations of such Person evidenced by notes, bonds, debentures or similar
instruments, (c) all obligations of such Person representing the balance of
deferred purchase price of property or services, except trade accounts payable
and accrued commercial or trade liabilities arising in the ordinary course of
business, (d) all interest rate and currency swaps, caps, collars and similar
agreements or hedging devices under which payments are obligated to be made by
such Person, whether periodically or upon the happening of a contingency, (e)
all indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (f)
all obligations of such Person under leases which have been or should be, in
accordance with GAAP, recorded as capital leases, (g) all obligations of such
Persons under operating leases in excess of $15,000,000, (h) all indebtedness
secured by any Lien (other than Liens in favor of lessors under leases other
than leases included in clauses (f) and (g)) on any property or asset owned or
held by that Person regardless of whether the indebtedness secured thereby shall
have been assumed by that Person or is non-recourse to the credit of that
Person, and (i) all Indebtedness of any other Person referred to in clauses (a)
through (g) above, guaranteed, directly or indirectly, by that Person.
14
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other) or other security interest of
any kind or nature whatsoever (excluding preferred stock or equity related
preferences) including, without limitation, those created by, arising under or
evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease obligation, or any financing lease
having substantially the same economic effect as any of the foregoing.
"Low Trading Price Conversion Event" shall be deemed to occur if, on
or after the third anniversary of the Original Issue Date, (a) the Company at
the time is maintaining the listing of its Common Stock on the Nasdaq Stock
Market, (b) the Company is in full compliance with all covenants under the
Senior Debt, and (c) the Common Stock has a Trading Price at or above $4.25 per
share for 45 consecutive trading days.
"Mandatory Redemption Date" has the meaning set forth in Section 3(b).
"Material Adverse Effect" means any material adverse change in the
assets, business or financial condition of the Company.
"Notes" shall mean this Note as defined in Section 1 together with all
Accrual Notes issued in connection thereto.
"Officers' Certificate" means a certificate signed by any two officers
of the Company, one of whom must be the chief executive officer, the chief
financial officer or chief accounting officer of the Company.
"Original Issue Date" means March 30, 2000.
"Permitted Junior Securities" means equity interests in the Company.
"Permitted Liens" means (i) Liens for taxes, governmental charges or
levies which (a) are not yet due and payable, or (b) are being diligently
contested in good faith by appropriate proceedings; provided, that for any such
taxes being diligently contested in good faith, the Company has set aside
adequate reserves, (ii) Liens imposed by law, such as mechanic's, materialman's,
landlord's, warehouseman's and carrier's liens, securing obligations incurred in
the ordinary course of business which are not yet overdue or which are being
diligently contested in good faith by appropriate proceeding and, with respect
to such obligations which are being contested, for which the Company has set
aside adequate reserves, (iii) Liens securing Senior Debt (iv) Liens which (x)
secure obligations of less than $15,000,000 in the aggregate and (y) do not,
individually or in the aggregate, interfere with the use and enjoyment of the
property subject thereto and (v) Liens created in favor of General Electric
Capital Corporation pursuant to the GECC Payment Agreement.
"Person" means any individual, partnership, corporation, trust,
unincorporated organization or government or agency or political subdivision
thereof.
"Preferred Stock" means the Series B Convertible Preferred Stock, par
value $.01 per share, of the Company.
"Purchase Agreement" shall have the meaning provided in the preamble
hereto.
The "principal" of a debt security means the principal of the
security plus, when appropriate, the premium (if any) payable on the security.
"Redemption Price" has the meaning set forth in Section 2(a).
"Senior Debt" means (i) all indebtedness outstanding at any time under
the Credit Agreement, and all hedging obligations and bank products with respect
thereto, (ii) any replacement or refinancing of the Credit Agreement which
provides for borrowings by the Company up to $55,000,000 in aggregate principal
amount and (iii) all obligations with respect to any of the foregoing.
Notwithstanding anything to the contrary in the foregoing, Senior Debt shall not
include (x) any indebtedness of the Company to any of its subsidiaries or other
affiliates, or (y) any indebtedness incurred for the purchase of goods or
materials or for services obtained in the ordinary course of business (other
than with the proceeds of revolving credit borrowings permitted hereby).
15
"Senior Debt Documents" means the Credit Agreement and any comparable
documents governing other senior debt, if any.
"Transaction Documents" means collectively, the Purchase Agreement,
the Exchangeable Notes, the Convertible Notes and the Warrants.
"Trading Price" means, on any day, the average of the high and low
reported sales prices regular way of a share of Common Stock on such day (if
such day is a trading day, and if such day is not a trading day, on the trading
day immediately preceding such trading day) on the Nasdaq Stock Market.
"Trading Price Conversion Event" means a High Trading Price Conversion
Event or a Low Trading Price Conversion Event.
11. Non-Waiver.
----------
No course of dealing between the Company and the Holder of this Note
or any delay or failure on the part of the Holder hereof in exercising any
rights hereunder shall operate as a waiver of any rights of any Holder hereof,
except to the extent expressly waived in writing by the Holder hereof.
12. Governing Law.
-------------
This Note shall be construed in accordance with and governed by the
internal laws of the State of New York.
13. Successors and Assigns.
-----------------------
All of the covenants, promises and agreements in this Note shall bind
the Company's successors and assigns, whether so expressed or not.
14. Severability.
-------------
If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provision or
provisions held invalid, illegal or unenforceable shall substantially impair the
remaining provisions hereof.
15. Headings.
---------
The headings of the sections and paragraphs of this Note are inserted
for convenience only and shall not be deemed to constitute a part hereof.
16
IN WITNESS WHEREOF, the Company has caused this Note to be signed in its name
by a duly authorized officer and to be dated as of the day and year first above
written.
EFTC CORPORATION
By:____________________________________
Name:_______________________________
Title:______________________________
17
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________________________
_______________________________________ agent to transfer this Note on the books
of the Company. The agent may substitute another to act for him.
Date: _____________ Your Signature:________________________________________
(Sign exactly as your name appears on the front of
this Note)
Signature Guarantee: