EXHIBIT 10.16
-------------
CONVERTIBLE LOAN AGREEMENT
DATED AS OF JUNE 28, 2002
BY AND AMONG
SIMTEK CORPORATION
AS BORROWER
AND
RENAISSANCE CAPITAL GROWTH & INCOME FUND III, INC.
AND
RENAISSANCE US GROWTH & INCOME TRUST PLC
AND
BFSUS SPECIAL OPPORTUNITIES TRUST PLC
AS LENDER
AND
RENAISSANCE CAPITAL GROUP, INC.
AS AGENT FOR THE LENDER
TABLE OF CONTENTS
Page
WITNESSETH:.......................................................................................................1
ARTICLE I. - DEFINITION OF TERMS..................................................................................1
SECTION 1.01 DEFINITIONS.................................................................................1
SECTION 1.02 OTHER DEFINITION PROVISIONS.................................................................7
ARTICLE II. - LOAN PROVISIONS.....................................................................................8
SECTION 2.01 THE LOAN....................................................................................8
SECTION 2.02 USE OF PROCEEDS.............................................................................8
SECTION 2.03 INTEREST RATE AND INTEREST PAYMENTS.........................................................8
SECTION 2.04 MATURITY....................................................................................9
SECTION 2.05 MANDATORY PRINCIPAL REPAYMENT...............................................................9
SECTION 2.06 REDEMPTION..................................................................................9
SECTION 2.07 CONVERSION..................................................................................9
SECTION 2.08 FEES AND EXPENSES...........................................................................9
SECTION 2.09 FINDER'S FEES...............................................................................9
SECTION 2.10 TAXES.......................................................................................9
SECTION 2.11 SUBSIDIARY GUARANTY, SECURITY AGREEMENTS AND PLEDGE AGREEMENT..............................10
ARTICLE III. - CONDITIONS PRECEDENT..............................................................................10
SECTION 3.01 PRE-CLOSING CONDITIONS.....................................................................10
ARTICLE IV. - REPRESENTATIONS AND WARRANTIES OF BORROWER.........................................................12
SECTION 4.01 ORGANIZATION AND GOOD STANDING.............................................................12
SECTION 4.02 AUTHORIZATION AND POWER....................................................................13
SECTION 4.03 NO CONFLICTS OR CONSENTS...................................................................13
SECTION 4.04 ENFORCEABLE OBLIGATIONS....................................................................13
SECTION 4.05 NO LIENS...................................................................................13
SECTION 4.06 FINANCIAL CONDITION........................................................................13
SECTION 4.07 NO DEFAULT.................................................................................14
SECTION 4.08 MATERIAL AGREEMENTS........................................................................14
SECTION 4.09 NO LITIGATION..............................................................................14
SECTION 4.10 TAXES......................................................................................14
SECTION 4.11 CAPITALIZATION.............................................................................15
SECTION 4.12 USE OF PROCEEDS............................................................................15
SECTION 4.13 EMPLOYEE MATTERS...........................................................................15
SECTION 4.14 EMPLOYEE BENEFIT PLANS.....................................................................16
SECTION 4.15 COMPLIANCE WITH LAWS.......................................................................16
SECTION 4.16 LICENSES AND PERMITS.......................................................................16
SECTION 4.17 CONTRACTS..................................................................................17
SECTION 4.18 SHARES ISSUABLE UPON CONVERSION............................................................17
SECTION 4.19 INSIDER....................................................................................17
SECTION 4.20 SUBSIDIARIES...............................................................................17
SECTION 4.21 CASUALTIES.................................................................................18
SECTION 4.22 INVESTMENT COMPANY ACT.....................................................................18
SECTION 4.23 SUFFICIENCY OF CAPITAL.....................................................................18
SECTION 4.24 CORPORATE NAMES............................................................................18
SECTION 4.25 INSURANCE..................................................................................18
SECTION 4.26 INTELLECTUAL PROPERTY......................................................................18
SECTION 4.27 REAL PROPERTY..............................................................................19
SECTION 4.28 ENVIRONMENTAL..............................................................................20
SECTION 4.29 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.................................................21
SECTION 4.30 FULL DISCLOSURE............................................................................21
ARTICLE V. - AFFIRMATIVE COVENANTS OF BORROWER...................................................................21
SECTION 5.01 FINANCIAL STATEMENTS, REPORTS AND DOCUMENTS................................................22
SECTION 5.02 ANNUAL FINANCIAL STATEMENTS................................................................23
SECTION 5.03 QUARTERLY FINANCIAL STATEMENTS.............................................................23
SECTION 5.04 MONTHLY FINANCIAL STATEMENTS...............................................................23
SECTION 5.05 PREPARATION OF BUDGETS.....................................................................24
SECTION 5.06 PAYMENT OF TAXES AND OTHER INDEBTEDNESS....................................................24
SECTION 5.07 MAINTENANCE OF EXISTENCE AND RIGHTS; CONDUCT OF BUSINESS...................................24
SECTION 5.08 SEC FILINGS................................................................................24
SECTION 5.09 NOTICE.....................................................................................25
SECTION 5.10 COMPLIANCE WITH LOAN DOCUMENTS.............................................................25
SECTION 5.11 COMPLIANCE WITH MATERIAL AGREEMENTS........................................................25
SECTION 5.12 OPERATIONS AND PROPERTIES..................................................................25
SECTION 5.13 BOOKS AND RECORDS; ACCESS..................................................................25
SECTION 5.14 COMPLIANCE WITH LAW........................................................................26
SECTION 5.15 INSURANCE..................................................................................26
SECTION 5.16 AUTHORIZATIONS AND APPROVALS...............................................................26
SECTION 5.17 ERISA COMPLIANCE...........................................................................26
SECTION 5.18 FURTHER ASSURANCES.........................................................................26
SECTION 5.19 INDEMNITY BY BORROWER......................................................................26
SECTION 5.20 RESERVATION OF SHARES......................................................................27
SECTION 5.21 OWNERSHIP OF SUBSIDIARIES..................................................................27
SECTION 5.22 RETENTION OF STOCK OWNERSHIP...............................................................28
SECTION 5.23 SUBSEQUENTLY FORMED U.S. SUBSIDIARIES......................................................28
ARTICLE VI. - NEGATIVE COVENANTS OF BORROWER.....................................................................28
SECTION 6.01 LIMITATION ON INDEBTEDNESS.................................................................28
SECTION 6.02 LIMITATION ON LIENS........................................................................28
SECTION 6.03 LIMITATION ON INVESTMENTS..................................................................29
SECTION 6.04 ALTERATION OF MATERIAL AGREEMENTS..........................................................29
SECTION 6.05 TRANSACTIONS WITH AFFILIATES...............................................................29
SECTION 6.06 LIMITATIONS ON ACQUISITION OF NONRELATED BUSINESS..........................................29
SECTION 6.07 LIMITATION ON SALE OF PROPERTIES...........................................................29
SECTION 6.08 FISCAL YEAR AND ACCOUNTING METHOD..........................................................30
SECTION 6.09 LIQUIDATION................................................................................30
SECTION 6.10 MATERIAL AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS.................................30
SECTION 6.11 EXECUTIVE COMPENSATION.....................................................................30
SECTION 6.12 RESTRICTED PAYMENTS........................................................................30
SECTION 6.13 CONSOLIDATION OR MERGER....................................................................30
ARTICLE VII. - COVENANTS OF MAINTENANCE OF FINANCIAL STANDARDS...................................................31
SECTION 7.01 FINANCIAL RATIOS...........................................................................31
ARTICLE VIII. - EVENTS OF DEFAULT................................................................................31
SECTION 8.01 EVENTS OF DEFAULT..........................................................................31
SECTION 8.02 REMEDIES UPON EVENT OF DEFAULT.............................................................32
SECTION 8.03 PERFORMANCE BY THE LENDER..................................................................33
SECTION 8.04 PAYMENT OF EXPENSES INCURRED BY THE LENDER.................................................33
ARTICLE IX. - REGISTRATION RIGHTS................................................................................33
SECTION 9.01 "PIGGY-BACK" REGISTRATION..................................................................33
SECTION 9.02 SHELF REGISTRATION.........................................................................35
SECTION 9.03 OBLIGATIONS OF BORROWER....................................................................35
SECTION 9.04 FURNISH INFORMATION........................................................................36
SECTION 9.05 EXPENSES OF REGISTRATION...................................................................36
SECTION 9.06 INDEMNIFICATION REGARDING REGISTRATION RIGHTS..............................................36
SECTION 9.07 REPORTS UNDER THE 1934 ACT.................................................................38
SECTION 9.08 ASSIGNMENT OF REGISTRATION RIGHTS..........................................................39
SECTION 9.09 OTHER MATTERS..............................................................................39
ARTICLE X. - BOARD OF DIRECTORS..................................................................................40
SECTION 10.01 BOARD REPRESENTATION OR ATTENDANCE BY OBSERVER.............................................40
SECTION 10.02 LIMITATION OF AUTHORITY OF PERSONS DESIGNATED AS A DIRECTOR NOMINEE........................40
SECTION 10.03 NONLIABILITY OF THE LENDER.................................................................40
ARTICLE XI. - AGENCY PROVISIONS..................................................................................41
SECTION 11.01 THE LENDER'S REPRESENTATIONS AND WARRANTIES TO AGENT.......................................41
SECTION 11.02 WAIVER OF LOAN PROVISIONS OR INTEREST OR PRINCIPAL PAYMENTS................................41
SECTION 11.03 AGENCY.....................................................................................41
ARTICLE XII. - MISCELLANEOUS.....................................................................................43
SECTION 12.01 STRICT COMPLIANCE..........................................................................43
SECTION 12.02 WAIVERS AND MODIFICATIONS..................................................................43
SECTION 12.03 LIMITATION ON LIABILITY....................................................................43
SECTION 12.04 CHOICE OF FORUM; CONSENT TO SERVICE OF PROCESS AND JURISDICTION............................43
SECTION 12.05 INVALID PROVISIONS.........................................................................44
SECTION 12.06 MAXIMUM INTEREST RATE......................................................................44
SECTION 12.07 PARTICIPATIONS AND ASSIGNMENTS OF THE DEBENTURES...........................................45
SECTION 12.08 CONFIDENTIALITY............................................................................45
SECTION 12.09 BINDING EFFECT.............................................................................45
SECTION 12.10 NO THIRD PARTY BENEFICIARY.................................................................46
SECTION 12.11 ENTIRETY...................................................................................46
SECTION 12.12 HEADINGS...................................................................................46
SECTION 12.13 SURVIVAL...................................................................................46
SECTION 12.14 MULTIPLE COUNTERPARTS......................................................................46
SECTION 12.15 KNOWLEDGE OF BORROWER......................................................................46
SECTION 12.16 NOTICES....................................................................................46
SECTION 12.17 GOVERNING LAW..............................................................................49
SCHEDULES TO CONVERTIBLE LOAN AGREEMENT..........................................................................51
THIS AGREEMENT, dated as of June 28, 2002, by and among SIMTEK CORPORATION,
a Colorado corporation ("Borrower"), and RENAISSANCE CAPITAL GROWTH & INCOME
FUND, III, INC., a Texas corporation (individually referred to as "Renaissance
III") and RENAISSANCE US GROWTH & INCOME TRUST PLC, a public limited company
registered in England and Wales (individually referred to as "RUSGIT") and BFSUS
SPECIAL OPPORTUNITIES TRUST PLC, a public limited company registered in England
and Wales ("BFSUS") (Renaissance III, RUSGIT and BFSUS, together with any
permitted assignees or successors in interest referred to as the "Lender") and
RENAISSANCE CAPITAL GROUP, INC., a Texas corporation, as agent for the Lender
(the "Agent"). All references herein to Borrower shall include the Subsidiaries,
unless the context otherwise requires.
WITNESSETH:
WHEREAS, Borrower seeks to borrow a total of Three Million Dollars
($3,000,000) from the Lender; and
WHEREAS, Borrower has requested that the Lender provide such loan as herein
provided, and that the Lender is willing to furnish such to Borrower upon the
terms and subject to the conditions and for the considerations hereinafter set
forth;
NOW, THEREFORE, in consideration of the mutual promises herein contained
and for other valuable consideration, receipt and sufficiency of which is
acknowledged, the parties hereto agree as follows:
ARTICLE I. - DEFINITION OF TERMS
SECTION 1.01 DEFINITIONS.
For the purposes of this Agreement, the following terms shall have the
respective meanings assigned to them in this Article I or in the section or
recital referred to below:
"Affiliate" with respect to any Person shall mean a person that directly or
indirectly, through one or more intermediaries, controls or is controlled by, or
is under common control with, such Person.
"Bank One" shall mean Bank One, N.A.
"BFSUS" shall mean BFSUS Special Opportunities Trust PLC, a public limited
company registered in England and Wales.
"Capital Expenditure" shall mean an expenditure for assets that is properly
classifiable as a capital expenditure in accordance with GAAP.
"Capital Lease" shall mean any lease of property, real or personal, which
would be properly classifiable as a capital lease in accordance with GAAP.
"Closing Fee" shall mean that amount equal to 1.0% of the commitment amount
which equals Thirty Thousand Dollars ($30,000), deposited by Borrower in an
escrow account and which shall be applied to Lender's reasonable closing costs
and out of pocket expenses.
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"Closing Expense Fee" shall mean that amount equal to 0.50% of the
commitment amount which equals Fifteen Thousand Dollars ($15,000), deposited by
Borrower in an escrow account and which shall be applied to Lender's reasonable
closing costs and out-of-pocket expenses.
"Commitment Fee" shall mean that amount equal to 1.0% of the commitment
amount, which equals Thirty Thousand Dollars ($30,000), deposited by Borrower in
an escrow account.
"Common Stock" shall mean Borrower's common stock, par value $.0.01 per
share.
"Consolidated Trailing Twelve Months Free Cash Flow" shall mean for any
Person, for the immediately preceding twelve-month period on such date, Net
Income of such Person for such twelve-month period, plus (a) all deferred income
tax expense of such Person and its Subsidiaries for such twelve-month period,
(b) all depreciation expense of such Person and its Subsidiaries for such
twelve-month period, and (c) all amortization expense of such Person and its
Subsidiaries for such twelve-month period, less capital expenditures of such
Person and its Subsidiaries for such twelve-month period.
"Conversion" or "Conversion Rights" shall mean exchange of, or the rights
to exchange, the Principal Amount of the Loan, or any part thereof, for fully
paid and nonassessable Common Stock on the terms and conditions provided in the
Debentures.
"Current Assets" shall mean, for any Person as of any date, the assets of
such Person and its consolidated Subsidiaries which would be reflected as
current assets on a consolidated balance sheet for such Person and its
Subsidiaries prepared as of such date in accordance with GAAP.
"Current Liabilities" shall mean, for any Person as of any date, the
liabilities of such Person and its consolidated Subsidiaries which would be
reflected as current liabilities on a consolidated balance sheet for such Person
and its subsidiaries prepared as of such date in accordance with GAAP. For
purposes of calculating compliance with any covenant contained in this Agreement
or any other Loan Document, the principal amount of Current Liabilities shall
include any balance under any revolving credit facility of the Borrower,
regardless of whether such revolving credit facility would be reflected as a
current liability in accordance with GAAP.
"Current Ratio" shall mean, for any Person as of any date, the ratio of
such Person's Current Assets to Current Liabilities as of such date.
"Debentures" shall mean the Debentures executed by Borrower and delivered
pursuant to the terms of this Agreement, together with any renewals, extensions
or modifications thereof.
"Debtor Laws" shall mean all applicable liquidation, conservatorship,
bankruptcy, moratorium, arrangement, receivership, insolvency, reorganization or
similar laws from time to time in effect affecting the rights of creditors or
debtors generally.
"Default" or "Event of Default" shall mean any of the events specified in
Article VIII.
"Dividends," in respect of any corporation, shall mean (i) cash
distributions or any other distributions on, or in respect of, any class of
capital stock of such corporation, except for distributions made solely in
shares of stock of the same class, and (ii) any and all funds, cash and other
payments made in respect of the redemption, repurchase or acquisition of such
stock, unless such stock shall be redeemed or acquired through the exchange of
such stock with stock of the same class.
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"Due Diligence Fee" shall mean a non-refundable due diligence fee, in the
amount of Twelve Thousand Five Hundred Dollars ($12,500), previously paid by
Borrower to Lender to be applied to Lender's due diligence expenses.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, together with all rules and regulations issued pursuant thereto.
"GAAP" shall mean United States generally accepted accounting principles
applied on a consistent basis, set forth in the Opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants or
the Financial Accounting Standards Board or their successors, which are
applicable in the circumstances as of the date in question. The requirement that
such principles be applied on a consistent basis shall mean that the accounting
principles observed in a current period are comparable in all material respects
to those applied in a preceding period.
"Governmental Authority" shall mean any government (or any political
subdivision or jurisdiction thereof), court, bureau, agency or other
governmental authority having jurisdiction over Borrower or a Subsidiary or any
of its or their businesses, operations or properties.
"Guaranty" of any Person shall mean any contract, agreement or
understanding of such Person pursuant to which such Person in effect guarantees
the payment of any Indebtedness of any other Person (the "Primary Obligor") in
any manner, whether directly or indirectly, including, without limitation,
agreements: (i) to purchase such Indebtedness or any property constituting
security therefor; (ii) to advance or supply funds primarily for the purpose of
assuring the holder of such Indebtedness of the ability of the Primary Obligor
to make payment; or (iii) otherwise to assure the holder of the Indebtedness of
the Primary Obligor against loss in respect thereof, except that "Guaranty"
shall not include the endorsement by Borrower or a Subsidiary in the ordinary
course of business of negotiable instruments or documents for deposit or
collection.
"Holder" shall mean the owner of Registrable Securities.
"Indebtedness" shall mean, with respect to any Person, without duplication,
the following indebtedness, obligations and liabilities of such Person: (i)
indebtedness for borrowed money; (ii) all obligations of such Person in respect
of any Guaranty; (iii) all obligations of such Person in respect of any Capital
Lease, (iv) all obligations, indebtedness and liabilities secured by any lien or
any security interest on any property or assets of such Person, but only to the
extent so secured; and (v) all preferred stock of such Person which is subject,
at the time of calculation of Indebtedness, to a mandatory redemption
requirement, valued at the greater of its involuntary redemption price or
liquidation preference plus accrued and unpaid dividends, and all extensions,
renewals, modifications and amendments thereto.
"Interest Coverage Ratio" means for any period, the ratio of (a) Borrower's
consolidated net income after taxes for such period (excluding Borrower's after
tax gains or losses on the sale of assets (other than the sale of Inventory in
the ordinary course of business) and excluding other after tax extraordinary
gains or losses), plus depreciation and amortization deducted in determining net
income for such period, plus interest expense for such period to (b) interest
expense for such period, all as determined on a consolidated basis in accordance
with GAAP.
"Investment" in any Person shall mean any investment, whether by means of
share purchase, loan, advance, capital contribution or otherwise, in or to such
Person, the Guaranty of any Indebtedness of such Person, or the subordination of
any claim against such Person to other Indebtedness of such Person; provided
however, that "Investment" shall not include (i) any demand deposits in a duly
3
chartered state or national bank or other cash equivalent investments, (ii) any
loans permitted by Section 6.12, or (iii) any acquisitions of equity in any
other Person.
"IRS Code" shall mean the Internal Revenue Code of 1986, as amended,
together with all rules and regulations issued thereunder.
"Lien" shall mean any lien, mortgage, security interest, tax lien, pledge,
encumbrance, conditional sale or title retention arrangement, or any other
interest in property designed to secure the repayment of Indebtedness, whether
arising by agreement or under any statute or law, or otherwise.
"Loan" shall mean the money lent to Borrower pursuant to this Agreement,
along with any accrued, unpaid interest thereon.
"Loan Closing" or "Loan Closing Date" shall mean the disbursement of Loan
funds, which shall occur within ten (10) days of the execution and delivery of
this Agreement.
"Loan Documents" shall mean this Agreement, the Debentures and any other
agreements or documents required to be executed or delivered by Borrower
pursuant to the terms of this Agreement (and any amendments or supplements
hereto or modifications hereof).
"Lock-Up Agreement" shall mean the "lock-up" agreements to be executed by
certain executive officers and principal shareholders of Borrower pursuant to
Section 5.19 of this Agreement.
"Material Adverse Effect" or "Material Adverse Change" shall mean (i) any
change, factor or event that shall (a) have a material adverse effect upon the
validity or enforceability of any Loan Documents, (b) have a material adverse
effect upon the financial condition, results of operations, business,
properties, operations or assets of Borrower or its Subsidiaries taken as a
whole, or (c) have a material adverse effect upon the ability of Borrower to
fulfill its obligations under the Loan Documents, or (ii) any event that causes
an Event of Default or which, with notice or lapse of time or both, could
reasonably be expected to become an Event of Default.
"Net Income" shall mean, for any Person for any period, consolidated net
income of such Person and its consolidated Subsidiaries for such period which
would be reflected in accordance with GAAP, but excluding (a) any gain or loss
arising from the sale of capital assets, (b) any gain or loss arising from any
write-up or write-down of assets, (c) income or loss of any Person,
substantially all of the assets of which have been acquired by such Person in
any manner, to the extent that such earnings or losses were realized by such
other Person prior to the date of such acquisition, (d) income or loss of any
Person in which the Person has any ownership interests (other than consolidated
subsidiaries of such Person), unless such earnings have actually been received
or paid by the Person or its consolidated Subsidiaries in the form of cash
distributions or additional cash calls, (e) income or loss of any Person to
which assets of the Person or its consolidated subsidiaries shall have been
sold, transferred or disposed of, or into which the Person shall have merged, to
the extent that such earnings or losses of any other Person arise prior to the
date of such transaction, (f) any gain or loss arising from the acquisition of
any securities of the Person or any of its consolidated subsidiaries, and (g)
any extraordinary gain or loss realized by such Person or any of its
consolidated subsidiaries during such period.
"Obligation" shall mean: (i) all present and future Indebtedness,
obligations and liabilities of Borrower to the Lender arising pursuant to this
Agreement, regardless of whether such Indebtedness, obligations and liabilities
are direct, indirect, fixed, contingent, joint, several, or joint and several;
(ii) all present and future Indebtedness, obligations and liabilities of
Borrower to the Lender arising pursuant to or represented by the Debentures and
4
all interest accruing thereon, and reasonable attorneys' fees incurred in the
enforcement or collection thereof; (iii) all present and future Indebtedness,
obligations and liabilities of Borrower and any Subsidiary evidenced by or
arising pursuant to any of the Loan Documents; (iv) all costs incurred by the
Lender or Agent including, but not limited to, reasonable attorneys' fees and
legal expenses related to this transaction; and (v) all renewals, extensions and
modifications of the indebtedness referred to in the foregoing clauses, or any
part thereof.
"Permits" shall have the meaning set forth in Section 4.16.
"Permitted Indebtedness" shall mean Indebtedness outstanding as of the date
hereof or incurred in compliance with Section 6.01 and the other terms of this
Agreement that constitutes (i) Senior Obligations, (ii) obligations under
Capital Leases, (iii) letters of credit, (iv) debt associated with Permitted
Liens, (v) Subordinated Debt, (vi) purchase money Indebtedness, (vi)
intercompany Indebtedness, (viii) Indebtedness under this Agreement or the
Debentures, and (ix) any refunding, refinancing or extension of any of the
above.
"Permitted Liens" shall mean: (i) Liens (if any) granted for the benefit of
the Lender; (ii) Liens to secure the Permitted Indebtedness; (iii) pledges or
deposits made to secure payment of worker's compensation insurance (or to
participate in any fund in connection with worker's compensation insurance),
unemployment insurance, pensions or social security programs; (iv) Liens imposed
by mandatory provisions of law such as for carriers', landlord's, materialmen's,
mechanics', warehousemen's, vendors' and other like Liens arising in the
ordinary course of business, securing Indebtedness whose payment is made within
30 days of the date such Lien arises, or that are being contested in good faith
by appropriate proceedings as to which adequate reserves have been established
to the extent required by GAAP; (v) Liens for taxes, assessments and
governmental charges or levies imposed upon a Person or upon such Person's
income or profits or property, if the same are not yet due and payable or if the
same are being contested in good faith and as to which adequate cash reserves
have been provided or if an extension is obtained with respect thereto; (vi)
Liens arising from good faith deposits in connection with tenders, leases, bids
or contracts (other than contracts involving the borrowing of money), pledges or
deposits to secure public or statutory obligations and deposits to secure (or in
lieu of) surety, stay, appeal or customs bonds and deposits to secure the
payment of taxes, assessments, customs duties or other similar charges; (vii)
encumbrances consisting of zoning restrictions, easements, reservations,
licenses, covenants and other minor irregularities of title or other
restrictions on the use of real property (whether owned or leased), provided
that such items do not materially impair the intended use of such property, and
none of which is violated by Borrower's existing structures or land use; (viii)
mortgages, financing statements, equipment leases or other encumbrances incurred
in connection with the acquisition of property or equipment or the replacement
of existing property or equipment, provided that such liens shall be limited to
the property or equipment then being acquired; (ix) Liens which secure Senior
Obligations; and (x) Liens listed in Schedule 4.05.
"Person" shall include an individual, a corporation, a joint venture, a
general or limited partnership, a trust, an unincorporated organization or a
government or any agency or political subdivision thereof.
"Plan" shall mean an employee benefit plan or other plan maintained by
Borrower for employees of Borrower and/or any Subsidiaries and covered by Title
IV of ERISA, or subject to the minimum funding standards under Section 412 of
the IRS Code.
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"Principal Amount" shall mean, as of any time, the then aggregate
outstanding face amount of the Debentures after any conversions or redemptions
and after giving effect to any installment payments received by the Lender.
"Registrable Securities" shall mean (a) the Common Stock issuable upon
Conversion of the Debentures and (b) any Common Stock issued upon the exercise
of any warrant, right or other security that is issued with respect to the
Common Stock by way of (i) a stock dividend; (ii) any other distribution with
respect to, or in exchange for, or in replacement of Common Stock; (iii) a stock
split; and (iv) in connection with a combination of shares, recapitalization,
merger or consolidation excluding in all cases, however, any Common Stock that
is not a Restricted Security and any Registrable Securities sold or transferred
by a Person in a transaction in which the rights under this Agreement are not
assigned.
"Registrable Securities Then Outstanding" shall mean the Registrable
Securities then outstanding.
"Renaissance III" shall mean Renaissance III Growth & Income Fund III,
Inc., a Texas corporation.
"Renaissance Group" shall mean Renaissance Capital Group, Inc., a Texas
corporation.
"Restricted Security" shall mean a security that has not been (i)
registered under the 1933 Act or (ii) distributed to the public pursuant to Rule
144 (or any similar provisions that are in force) under the 1933 Act.
"RUSGIT" shall mean Renaissance US Growth & Income Trust PLC, a public
limited company registered in England and Wales.
"SEC" shall mean the Securities and Exchange Commission, or any other
federal agency at the time administering the 1933 Act and the 1934 Act.
"1933 Act" shall refer to the Securities Act of 1933, as amended, or any
similar federal statute and rules and regulations promulgated thereunder, all as
the same may be in effect from time to time.
"1934 Act" shall refer to the Securities Exchange Act of 1934, as amended,
or any similar federal statute and rules and regulations promulgated thereunder,
all as the same may be in effect from time to time.
"1940 Act" shall refer to the Investment Company Act of 1940, as amended,
or any similar federal statute and rules and regulations promulgated thereunder,
all as the same may be in effect from time to time.
"Senior Documents" shall mean all loan documents evidencing the Senior
Obligations, as each may now or hereafter be amended, modified, supplemented,
renewed or extended from time to time.
"Senior Obligations" shall mean one or more senior debt facilities
(including loans and other extensions of credit under the Senior Documents) with
banks or other institutional lenders providing for revolving credit loans, term
loans, asset-based secured loans, capital expenditure loans, or letters of
credit, or any other indebtedness senior to the Loan, as now existing or
hereafter incurred, and, in each case, as amended, restated, modified, renewed
or extended from time to time.
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"Solvent" shall mean, with respect to any Person on a particular date, that
on such date: (i) the fair value of the assets of such Person is greater than
the total amount of liabilities of such Person; (ii) the estimated present fair
salable value, in the ordinary course of business, of the assets of such Person
is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured; (iii) such
Person is able to realize upon its assets and pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business; (iv) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature; and (v) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's assets would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be computed
at the amount which, in light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"Subordinated Debt" shall mean any unsecured indebtedness of Borrower or
any Subsidiaries, now existing or hereafter incurred, which indebtedness is, by
its terms, junior in right of repayment to the payment of the Debentures.
"Subordination and Intercreditor Agreement" shall mean the Subordination
and Intercreditor Agreement, dated as of the date hereof, among the Lender and
Bank One, N.A.
"Subsidiary" or "Subsidiaries" shall mean any or all corporations or
entities, whether now existing or hereafter acquired, of which over 50% the
Voting Shares or equity interests are owned, directly or indirectly, by
Borrower.
"Subsidiary Documents" shall mean the Subsidiaries' Guaranty and
Subsidiaries' Security Agreement and any other agreements or documents required
to be executed or delivered by any Subsidiary pursuant to the terms of this
Agreement (and any amendments or supplements hereto or modifications hereof).
"Voting Shares" of any corporation shall mean shares of any class or
classes (however designated) having ordinary voting power for the election of at
least a majority of the members of the Board of Directors (or other governing
bodies) of such corporation, other than shares having such power only by reason
of the happening of a contingency.
SECTION 1.02 OTHER DEFINITION PROVISIONS.
(a) All terms defined in this Agreement shall have the above-defined
meanings when used in the Debentures or any other Loan Documents, certificate,
report or other document made or delivered pursuant to this Agreement, unless
the context therein shall otherwise require.
(b) Defined terms used herein in the singular shall import the plural and
vice versa.
(c) The words "hereof," "herein," "hereunder" and similar terms, when used
in this Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.
(d) References to financial statements and reports shall be deemed to be a
reference to such statements and reports prepared in accordance with GAAP.
7
(e) Accounting terms not specifically defined above in this Agreement shall
be construed in accordance with GAAP.
ARTICLE II. - LOAN PROVISIONS
SECTION 2.01 THE LOAN.
(a) Subject to the terms and conditions of this Agreement, and the
compliance with such terms and conditions by all parties, Lender agrees to lend
to Borrower, and Borrower agrees to borrow from the Lender, the total Principal
Amount of Three Million Dollars ($3,000,000) as follows:
Entity Amount
------ ------
Renaissance Capital Growth & Income Fund III, Inc. $1,000,000
Renaissance US Growth & Income Trust PLC $1,000,000
BFSUS Special Opportunities Trust PLC $1,000,000
(b) The Loan shall be disbursed at Loan Closing, expected to occur on June
28, 2002, subject to the conditions provided hereunder, and shall be evidenced
by the Debentures, in the Principal Amount specified above. The Debentures shall
rank pari passu with all Indebtedness of Borrower, other than the Senior
Obligations and the Subordinated Debt.
(c) Unless otherwise mutually agreed, the Loan Closing shall be at the
offices of Renaissance Group, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇.
(d) If, within 10 days of the date of this Agreement, (i) Borrower has
failed to comply with the conditions precedent to the Loan Closing as specified
in Article III hereof (unless compliance with such conditions in whole or in
part has been waived or modified by the Lender in its sole discretion) or (ii)
the Loan Closing has not occurred (unless the date of such Loan Closing has been
mutually extended), other than as a result of any failure of Lender to comply
with the terms of this Agreement, then, in either such case, the obligations of
the Lender under this Agreement shall terminate; provided, however, that
Borrower shall be obligated for payment of the fees and expenses provided in
Section 2.07 due and payable as of such date of termination.
SECTION 2.02 USE OF PROCEEDS.
(a) Borrower intends to use the Loan proceeds for working capital.
(b) Borrower hereby acknowledges that the proceeds from the Loan shall be
of benefit to Borrower for the growth of its business by providing capital which
will provide additional opportunities for Borrower.
SECTION 2.03 INTEREST RATE AND INTEREST PAYMENTS.
Interest on the Principal Amount outstanding from time to time shall accrue
at the rate of 7.50% per annum, with the first installment of accrued, unpaid
interest being due and payable on August 1, 2002 and subsequent payments of
accrued, unpaid interest being due and payable on the first day of each month
thereafter. Overdue principal and interest on the Debentures shall bear interest
at the maximum rate permitted by applicable law. Interest on the Principal
Amount of the Debentures shall be calculated, from time to time, on the basis of
the actual days elapsed in a year consisting of 365 days.
8
SECTION 2.04 MATURITY.
If not sooner redeemed or converted, the Debentures shall mature on June
28, 2009, at which time all the remaining unpaid principal, interest and any
other charges then due under this Agreement shall be due and payable in full.
The Debentures shall be prepaid pro rata with any prepayments of Indebtedness,
other than Senior Obligations.
SECTION 2.05 MANDATORY PRINCIPAL REPAYMENT.
The Debentures shall be subject to mandatory principal repayment as
provided in the Debentures.
SECTION 2.06 REDEMPTION.
The Debentures shall be subject to redemption as provided in the
Debentures.
SECTION 2.07 CONVERSION.
The Debentures shall be subject to conversion as provided in the
Debentures.
SECTION 2.08 FEES AND EXPENSES.
Upon Loan Closing, Borrower shall pay at Loan Closing to Agent, or at its
direction, a Closing Fee equal to 1.0% of the Loan proceeds as well as any
unpaid portion of the Commitment Fee, Closing Expense Fee and Due Diligence Fee
(which Due Diligence Fee has been paid prior to Closing), all as set forth in
the preliminary terms letter, dated April 30, 2002, between the Borrower and
Renaissance Group.
SECTION 2.09 FINDER'S FEES.
Borrower represents to the Lender that, except as set forth in Schedule
2.08, no placement fees, commissions, brokerage or finder's fees were incurred
by Borrower in connection with this Agreement or the Debentures. Borrower shall
be responsible for the payment of all such placement fees, commissions,
brokerage or finder's fees.
SECTION 2.10 TAXES.
(a) The Debentures shall be convertible into shares of Common Stock and on
such terms as are stated in the Debentures. Such conversion shall be made
without deduction for any present or future taxes, duties, charges or
withholdings, (excluding, in the case of the Lender, any foreign taxes, any
federal, state or local income taxes and any franchise taxes or taxes imposed
upon it by the jurisdiction, or any political subdivision thereof, under which
the Lender is organized or are qualified to do business), and all liabilities
with respect thereto (herein "Taxes") shall be paid by Borrower. If Borrower
shall be required by law to deduct any Taxes for which Borrower is responsible
under the preceding sentence from any sum payable hereunder to the Lender: (i)
the sum payable shall be increased so that after making all required deductions,
the Lender shall receive an amount equal to the sum it would have received had
no such deductions been made; (ii) Borrower shall make such deductions; and
(iii) Borrower shall pay the full amount deducted to the relevant taxing
authority or other authority in accordance with applicable law. Borrower shall
be entitled to any refunds or returns from any such taxing authority.
9
(b) Except as otherwise set forth in this Agreement or the other Loan
Documents, Borrower shall pay any present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or under the Loan Documents or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or the other Loan Documents (hereinafter referred to as "Other
Taxes").
(c) Borrower shall indemnify the Lender for the full amount of Taxes and
Other Taxes reasonably paid by the Lender or any liability (including any
penalties or interest assessed because of Borrower's defaults) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. This indemnification shall be made within thirty (30) days
from the date the Lender makes written demand therefor. The Lender shall
subrogate any and all rights and claims relating to such Taxes and Other Taxes
to Borrower upon payment of said indemnification.
(d) Without prejudice to the survival of any other agreement of Borrower
hereunder, the agreements and obligations of Borrower in this Section 2.09 shall
survive the payment in full of the Obligation.
(e) Borrower shall have no liability or obligation with respect to taxes on
income recognized by the Lender with respect to the Debentures.
SECTION 2.11 SUBSIDIARY GUARANTY, SECURITY AGREEMENTS AND PLEDGE AGREEMENT.
The due and prompt performance of the obligations of Borrower to the Lender
under the Loan Agreement and the Debentures shall be guaranteed by Borrower's
only Subsidiary and secured by all tangible and intangible assets of Borrower
and Borrower's only Subsidiary (exclusive of mortgages on real property) and
shall be evidenced by Security Agreements executed by and between the Lender,
the Borrower and Borrower's only Subsidiary. Financing statements shall be
executed in favor of the Lender by Borrower and Borrower's only Subsidiary.
Borrower shall enter into a Pledge Agreement with the Lender, whereby the
Borrower shall pledge all of the capital stock of Borrower's only Subsidiary.
There shall be no prior security interests on any such U.S. subsidiary capital
stock assets, except to secure certain Senior Obligations, and all such prior
security interests shall be subject to the Subordination and Intercreditor
Agreement.
ARTICLE III. - CONDITIONS PRECEDENT
SECTION 3.01 PRE-CLOSING CONDITIONS.
The obligation of the Lender to advance funds at the Loan Closing Date
hereof is subject to the condition precedent that, on or before the date of such
advance, the Lender shall have received the following:
(a) LOAN AGREEMENT. Duly executed Loan Agreement from Borrower which shall
be in form and substance satisfactory to Lender,Borrower and each of their
counsel.
(b) DEBENTURES. Three duly executed Debentures from Borrower evidencing the
Loan, all of which shall be in form and substance acceptable to the Lender and
its counsel.
(c) PLEDGE AGREEMENT AND BORROWER'S SECURITY AGREEMENT. Duly executed
Pledge Agreement and Security Agreement from Borrower, which shall be in form
and substance acceptable to the Lender and its counsel.
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(d) SUBSIDIARY'S GUARANTY AND SUBSIDIARY'S SECURITY AGREEMENT. Duly
executed Subsidiary's Guaranty and Subsidiary's Security Agreement from the U.S.
Subsidiary of Borrower, which shall be in form and substance acceptable to the
Lender and its counsel.
(e) SUBORDINATION AND INTERCREDITOR AGREEMENT. Duly executed Subordination
and Intercreditor Agreement from the parties thereto, which shall be in form and
substance acceptable to the Lender and its counsel.
(f) CEO'S CERTIFICATE. A certificate signed by the chief executive officer
of Borrower, in his capacity as such, and dated as of the Loan Closing Date
stating that, to the best knowledge and belief of such officer, after reasonable
and due investigation and review of matters pertinent to the subject matter of
such certificate: (i) all of the representations and warranties contained in
Article IV hereof and the other Loan Documents are true and correct in all
material respects as of the Loan Closing Date; and (ii) no event has occurred
and is continuing, or would result from the Loan, which constitutes, or with
notice or lapse of time or both would constitute, a Default or an Event of
Default.
(g) SECRETARY'S CERTIFICATES. A signed certificate of the Secretary of
Borrower which shall certify (i) copies of the Articles of Incorporation (or
other organizational document) of Borrower and Borrower's Subsidiary and all
amendments thereto, certified by the Secretary of State of the state of
incorporation (or other appropriate authority) and dated within ten (10) days
prior to Loan Closing, a copy of the Articles of Incorporation (or other
organizational document) of Borrower's Subsidiary and all amendments thereto,
certified by the Secretary of Borrower as of the date of such certification;
(ii) a copy of the Bylaws of Borrower and Borrower's Subsidiary and all
amendments thereto certified by the Secretary of Borrower and such Subsidiary as
of the date of such certification; (iii) copies of resolutions, as adopted by
Borrower's and Borrower's Subsidiary's Board of Directors, approving the
execution, delivery and performance, as applicable, of this Agreement, the
Debentures, the Guaranty and the other Loan Documents, including the
transactions contemplated herein, stating that such resolutions have been duly
adopted, are true and correct, have not been altered or repealed and are in full
force and effect; (iv) certificates of good standing (or other similar
instrument) for Borrower and Borrower's Subsidiary issued by the appropriate
official of the state of incorporation of Borrower and Borrower's Subsidiary and
certificates of qualification and good standing for Borrower and Borrower's
Subsidiary issued by the appropriate official of each of the states for which
Borrower and Borrower's Subsidiary is required to be qualified to do business as
a foreign corporation, dated within ten (10) days prior to Loan Closing; and (v)
the names of the officers of Borrower and Borrower's Subsidiary authorized to
sign the Loan Documents to be executed by such officer, together with the true
signatures of each such officer. It is herewith stipulated and agreed that the
Lender may thereafter rely conclusively on the validity of this certificate as a
representation of the officers of Borrower and Borrower's Subsidiary duly
authorized to act with respect to the Loan Documents until such time as the
Lender shall receive a further certificate of the Secretary or Assistant
Secretary of Borrower and Borrower's Subsidiary canceling or amending the prior
certificate and submitting the signatures of the officers thereupon authorized
in such further certificate.
(h) LEGAL OPINIONS. A legal opinion from counsel to Borrower and its U.S.
subsidiary in form and substance reasonably satisfactory to Lender and its
counsel.
(i) "LOCK-UP" AGREEMENTS. "Lock-Up" Agreements, in form and substance
reasonably satisfactory to the Lender and its counsel.
(j) FILINGS, REGISTRATIONS AND RECORDINGS. Each document including, without
limitation, any Uniform Commercial Code financing statement required by this
11
Agreement, any related agreement or under law or reasonably requested by the
Agent to be filed, registered or recorded in order to create, in favor of Agent,
a perfected security interest in or lien upon the Collateral shall have been
properly filed, registered or recorded in each jurisdiction in which the filing,
registration or recordation thereof is so required or requested, and Agent shall
have received an acknowledgment copy, or other evidence reasonably satisfactory
to it, of each such filing, registration or recordation and satisfactory
evidence of the payment of any necessary fee, tax or expense relating thereto.
(k) NO LITIGATION.
(i) No litigation, investigation or proceeding before or by any
arbitrator or Governmental Body shall be continuing or threatened against
Borrower or against the officers or directors of Borrower (A) in connection with
this Agreement, the Other Documents or any of the transactions contemplated
thereby and which, in the reasonable opinion of Agent, is deemed material or (B)
which could, in the reasonable opinion of Agent, have a Material Adverse Effect;
and
(ii) no injunction, writ, restraining order or other order of any
nature materially adverse to Borrower or the conduct of its business or
inconsistent with the due consummation of the Transactions shall have been
issued by any Governmental Body.
(l) FEES. Agent shall have received the Commitment Fee, Closing Fee,
Closing Expense Fee, Due Diligence Fee and any other fees payable to Agent and
Lenders on or prior to the Closing Date hereunder.
(m) CONSENTS. Agent shall have received any and all Consents necessary to
permit the effectuation of the transactions contemplated by this Agreement and
the Other Documents; and, Agent shall have received such Consents and waivers of
such third parties as might assert claims with respect to the Collateral, as
Agent and its counsel shall reasonably deem necessary.
(n) NO ADVERSE MATERIAL CHANGE. Since December 31, 2001, there shall not
have occurred any event, condition or state of facts at Borrower or its
Subsidiary which could reasonably be expected to have a Material Adverse Effect
and, taken as a whole, no representations made or information supplied to Agent
or Lenders shall have been proven to be inaccurate or misleading in any material
respect.
ARTICLE IV. - REPRESENTATIONS AND WARRANTIES OF BORROWER
All references in this Article to Borrower shall include the Subsidiaries,
unless the context otherwise requires. To induce the Lender to make the Loan
hereunder, Borrower represents and warrants to the Lender that:
SECTION 4.01 ORGANIZATION AND GOOD STANDING.
Borrower is duly organized and existing in good standing under the laws of
the state of its incorporation, is duly qualified as a foreign corporation and
in good standing in all states in which failure to qualify would have a Material
Adverse Effect, and has the corporate power and authority to own its properties
and assets and to transact the business in which it is engaged and is or will be
qualified in those states wherein it proposes to transact material business
operations in the future if the failure to so qualify would have a Material
Adverse Effect.
12
SECTION 4.02 AUTHORIZATION AND POWER.
Borrower has the corporate power and requisite authority to execute,
deliver and perform the Loan Documents to be executed by Borrower. Borrower is
duly authorized to, and has taken all corporate action necessary to authorize,
execute, deliver and perform the Loan Documents executed by Borrower. Borrower
is and will continue to be duly authorized to perform the Loan Documents
executed by Borrower.
SECTION 4.03 NO CONFLICTS OR CONSENTS.
Except as disclosed on Schedule 4.03, neither the execution and delivery of
the Loan Documents, nor the consummation of any of the transactions therein
contemplated, nor compliance with the terms and provisions thereof, will
contravene or materially conflict with any judgment, license, order or permit
applicable to Borrower, or any indenture, loan agreement, mortgage, deed of
trust, or other agreement or instrument to which Borrower is a party or by which
Borrower is or may become bound, or to which Borrower is or may become subject,
or violate any provision of the charter or bylaws of Borrower or trigger any
preemptive rights or rights of first refusal of any third party. No consent,
approval, authorization or order of any court or governmental authority or third
party is required in connection with the execution and delivery by Borrower of
the Loan Documents or to consummate the transactions contemplated hereby or
thereby except those that have been obtained.
SECTION 4.04 ENFORCEABLE OBLIGATIONS.
The Loan Documents have been duly executed and delivered by Borrower and
are the legal, valid and binding obligations of Borrower, enforceable in
accordance with their respective terms.
SECTION 4.05 NO LIENS.
Except for Permitted Liens, all of the properties and assets owned or
leased by Borrower are free and clear of all Liens and other adverse claims of
any nature, and Borrower has good and marketable title to such properties and
assets. A true and complete list of all known or recorded liens for borrowed
money is disclosed on Schedule 4.05.
SECTION 4.06 FINANCIAL CONDITION.
Borrower has delivered to the Lender the balance sheet of Borrower as of
December 31, 2001, and the related statement of income, stockholders' equity and
statement of cash flow for the year then ended, audited by its independent
certified public accountant. Borrower has also delivered to the Lender the
unaudited balance sheet of Borrower as of March 31, 2002 and the related
unaudited statement of income, stockholders' equity and statement of cash flow
for the three (3) months then ended. Such financial statements fairly present
the financial condition of Borrower as of such dates and have been prepared in
accordance with GAAP (except that unaudited financial statements omit certain
footnotes); and as of the date hereof, there are no obligations, liabilities or
Indebtedness (including contingent and indirect liabilities and obligations) of
Borrower which are (separately or in the aggregate) material and are not
reflected in such financial statements or otherwise disclosed herein or in the
Schedules. Since the date of the above-referenced year end financial statements,
there have not been, except as disclosed in Schedule 4.06: (i) any Material
Adverse Change; (ii) any Dividend declared or paid or distribution made on the
capital stock of Borrower or any capital stock thereof redeemed or repurchased;
(iii) any incurrence of long-term debt by Borrower; (iv) any salary, bonus or
13
compensation increases to any officers, key employees or agents of Borrower,
other than in the ordinary course of business and consistent with past practice;
or (v) any other material transaction entered into by Borrower, except in the
ordinary course of business and consistent with past practice.
SECTION 4.07 NO DEFAULT.
No event has occurred and is continuing which constitutes, or, with notice
or lapse of time or both, would constitute, a Default or an Event of Default
under this Agreement.
SECTION 4.08 MATERIAL AGREEMENTS.
To the best of Borrower's knowledge, neither Borrower nor any Subsidiary
nor any other party is in default, and no event has occurred and is continuing
which, with notice or lapse of time or both, would constitute a default, under
any contract, lease, loan agreement, indenture, mortgage, security agreement,
license agreement or other agreement or obligation to which it is a party or by
which any of its properties is subject which could reasonably be expected to
have a Material Adverse Effect, except as described on Schedule 4.08. To the
best of Borrower's knowledge, it is not a party to, or bound by, any contract or
agreement, the faithful performance of which is so onerous so as to create, or
to likely create, a Material Adverse Effect on the business, operations or
financial condition of Borrower.
SECTION 4.09 NO LITIGATION.
Except as disclosed on Schedule 4.09, there are no actions, suits,
investigations, arbitrations or administrative proceedings pending or, to the
best knowledge of Borrower, threatened, against Borrower, and there has been no
change in the status of any of the actions, suits, investigations, litigation or
proceedings disclosed to the Lender which could reasonably be expected to have a
Material Adverse Effect on Borrower or on any transactions contemplated by any
Loan Document. Borrower has not received any claim that Borrower currently
violates any federal, state or local law, ordinance, rule or regulation, which
could have an adverse effect on its business and, to the best of Borrower's
knowledge, no such claim is or has been threatened; and, except as disclosed on
Schedule 4.09, there have been no developments adverse to Borrower with respect
to any pending or threatened claim, action or proceeding of an administrative or
judicial nature.
SECTION 4.10 TAXES.
All tax returns required to be filed by Borrower in any jurisdiction have
been filed and all taxes (including mortgage recording taxes), assessments, fees
and other governmental charges upon Borrower or upon any of its properties,
income or franchises now due have been paid, in each case, except where the same
are being contested in good faith by appropriate proceedings, as disclosed on
Schedule 4.10.
Except as disclosed on Schedule 4.10, Borrower has not received any notice
of deficiency or other adjustment from any taxing authority that is unresolved
as of the Loan Closing. No audit or examination, claim or proposed assessment by
any taxing authority is pending or, to the best knowledge of Borrower,
threatened against Borrower or any of its properties. All ad valorem and other
property taxes imposed on Borrower, or that may become a lien on Borrower's
assets and that are due and payable, have been paid in full. Borrower has
withheld or collected from each payment made to each of its U.S. employees the
amount of all taxes (including federal income taxes, Federal Insurance
Contributions Act ("FICA") taxes, and state and local income, payroll, and wage
taxes, among others) required to be withheld or collected.
14
SECTION 4.11 CAPITALIZATION.
The authorized capital stock of Borrower consists of Two Million
(2,000,000) shares of Preferred Stock, of which zero (0) shares are issued and
outstanding as of the date hereof, and Eighty Million (80,000,000) shares of
Common Stock, $0.01 par value per share, of which Fifty-Four Million One Hundred
Sixty-Two Thousand Two Hundred Seventy-Three (54,162,273) shares of Common Stock
are issued and outstanding as of the date hereof. All of such outstanding shares
have been duly authorized and validly issued, are fully paid and nonassessable,
and were not issued in violation of the preemptive rights or rights of first
refusal of any person. Schedule 4.11 sets forth all stock options, warrants,
conversion rights, subscription rights, preemptive rights, rights of first
refusal and other rights or agreements to acquire securities of Borrower and any
shares held in treasury or reserved for issuance upon exercise of such stock
options, warrants or conversion rights, subscription rights and other rights or
agreements to acquire securities, including the date of termination of such
rights and the consideration therefor. As of the Loan Closing Date, Borrower
does not have a class of securities with respect to which a member of a national
securities exchange, broker or dealer may extend or maintain credit to or for a
customer pursuant to rules or regulations adopted by the Board of Governors of
the Federal Reserve System under Section 7 of the 1934 Act. Borrower has, and
will continue to have as long as the Debentures remains outstanding, authorized
and reserved an adequate number of shares of Common Stock to permit Conversion
of the Debentures.
SECTION 4.12 USE OF PROCEEDS.
Borrower intends to use proceeds from the Loan as disclosed in Section 2.02
hereof.
SECTION 4.13 EMPLOYEE MATTERS.
(a) Except as set forth on Schedule 4.13, Borrower is not a party to any
collective bargaining agreement and is not aware of any activities of any labor
union that is currently seeking to represent or organize its employees;
(b) To the best knowledge of Borrower, Borrower is in compliance with all
federal, state and municipal laws respecting employment and employment
practices, occupational health and safety, and wages and hours, and is not
engaged in any unfair labor practice, and there are no arrears in the payment of
wages or social security taxes;
(c) there is no unfair labor practice complaint against Borrower pending
before the National Labor Relations Board or any state or local agency;
(d) there is no pending labor strike or other material labor trouble
affecting Borrower (including, without limitation, any organizational drive);
(e) there is no material labor grievance pending against Borrower;
(f) there is no pending representation question respecting the employees of
Borrower before any local, state or federal agency;
(g) except as set forth on Schedule 4.13, there are no pending proceedings
arising out of or under any collective bargaining agreement to which Borrower is
a party, or to the best knowledge of Borrower, any basis for which a claim may
be made under any collective bargaining agreement to which Borrower is a party;
and
15
(h) there are no pending proceedings arising out of any employment
discrimination claim or any basis for which any such claim may be made.
SECTION 4.14 EMPLOYEE BENEFIT PLANS.
Schedule 4.14 lists (i) any "employee benefit plans" as described in the
Employee Retirement Income Security Act of 1974, as amended, and the rules and
regulations promulgated thereunder ("ERISA") (other than a defined contribution
pension plan not requiring any contribution by Borrower, paid time-off policy or
vacation/holiday/sick leave policy, and employee group life and health plans
that are fully funded through commercial insurance); and (ii) any defined
benefit "employee pension benefit plans" (as defined in ERISA). Neither Borrower
nor, to the best knowledge of Borrower, any other person has engaged in a
transaction with respect to any employee benefit plan listed or required to be
listed on Schedule 4.14 which could subject any such plan, Borrower or the
Lender to a penalty under ERISA or a tax under the Internal Revenue Code of
1986, as amended (the "Code"), except for those transactions which could not
reasonably be expected to have a Material Adverse Effect. Each of the employee
benefit plans listed, or required to be listed, on Schedule 4.14 has been
operated and administered in accordance with applicable law, including without
limitation ERISA, except for any such failure which would not subject Borrower
or the Lender to any penalty or other liability and except for any such failure
which would not have an adverse effect upon the applicable plan or any
participant therein. Borrower has not incurred, nor presently expects to incur,
any liability under Title IV of ERISA that could result in liability to the
Lenders or Borrower. Each employee benefit plan listed or required to be listed
on Schedule 4.14 that is a group health plan within the meaning of Section
5000(b)(1) of the Code, is in compliance with the provisions of Section 4980B(f)
of the Code, except for any such non-compliance which would not subject Borrower
or the Lender to any penalty or liability and except for any such failure which
would not have an adverse effect upon the applicable plan or any participant
therein. There is not any pending or, to the best knowledge of Borrower,
threatened claim by or on behalf of any employee benefit plan, by any employee
covered under any such plan or otherwise involving any employee benefit plan
(other than routine non-contested claims for benefits).
SECTION 4.15 COMPLIANCE WITH LAWS.
Each of Borrower and the Subsidiaries has all requisite licenses, permits
and certificates including without limitation, drug, environmental and health
and safety permits from federal, state and local authorities necessary to
conduct its business and own and operate its assets (collectively, the
"Permits"). Except as set forth on Schedule 4.15, neither Borrower nor any
Subsidiary is in violation of any law, regulation or ordinance relating to its
business, operations and properties which, individually or in the aggregate,
could have a Material Adverse Effect, and the business and operations of
Borrower or any Subsidiary do not violate, in any material respect, any federal,
state, local or foreign laws, regulations or orders. Except as set forth on
Schedule 4.15, Borrower and the Subsidiaries have not received any notice or
communication from any federal, state, local or foreign governmental or
regulatory authority or agency including without limitation, the U.S. Food and
Drug Administration of any such violation or noncompliance. To the best of their
knowledge, Borrower and the Subsidiaries have not engaged in any practices in
violation of any antitrust law or regulation of any federal, state, local or
foreign Governmental Authority.
SECTION 4.16 LICENSES AND PERMITS.
Borrower and the Subsidiaries have all licenses and franchises relating to
the operation of their respective businesses as are necessary and required for
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such ownership and operation, all of which are in good standing and, except as
expressly set forth on Schedule 4.16, are not subject to renewal within less
than one (1) year.
SECTION 4.17 CONTRACTS.
Schedule 4.17 lists all contracts to which Borrower or the Subsidiaries are
a party involving obligations in respect of the business for payment,
performance of services or delivery of goods in excess of $25,000 or which
require Borrower to continue to perform for a period of longer than twelve (12)
months (the "Scheduled Contracts"). Borrower has delivered to the Lender true
and correct copies of all the Scheduled Contracts (except that contracts from
Subsidiary shall be delivered within 5 business days after closing). All of such
Scheduled Contracts are valid and binding obligations of Borrower or the
Subsidiaries, are in full force and effect, and, to the best knowledge of
Borrower or the Subsidiaries, are enforceable against the parties thereto in
accordance with their respective terms. Neither Borrower nor the Subsidiaries
has received any notice that the other parties to the Scheduled Contracts are
(i) in default under such Scheduled Contracts, or (ii) consider Borrower to be
in default thereunder. Except as expressly noted in Schedule 4.17, to the best
knowledge of Borrower or the Subsidiaries, no party to any of the Scheduled
Contracts intends to terminate or adversely modify its agreement(s) with respect
thereto or adversely change the volume of business done thereunder.
SECTION 4.18 SHARES ISSUABLE UPON CONVERSION.
The shares of Common Stock of Borrower when issued to the Lender upon
conversion of and in accordance with the Debentures, will be duly and validly
issued, fully paid and nonassessable and in compliance with all applicable
securities laws. Such issuance will not give rise to preemptive rights, rights
of first refusal or similar rights by any other security holder of Borrower.
SECTION 4.19 INSIDER.
(a) Neither Borrower, nor any Person having "control" (as that term is
defined in the 1940 Act or in the regulations promulgated pursuant thereto) of
Borrower is an "executive officer," "director," or "principal shareholder" (as
those terms are defined in the ▇▇▇▇ ▇▇▇) of any Lender.
(b) Borrower's SEC reports for the 12 months prior to the date hereof
disclose all material transactions required to be disclosed therein.
(c) All agreements between Borrower and any of its officers, directors and
principal shareholders, including employment agreements, are disclosed in the
reports and filings made with the SEC or listed on Schedule 4.19.
SECTION 4.20 SUBSIDIARIES.
(a) All of the Subsidiaries of Borrower are listed on Schedule 4.20. Except
as disclosed on Schedule 4.20, Borrower owns all of the outstanding capital
stock or other equity interests of the Subsidiaries, free and clear of all
adverse claims, other than Liens securing the Senior Obligations. All of such
outstanding capital stock of each Subsidiary has been duly and validly
authorized and issued and is fully paid and nonassessable. All such Subsidiaries
are duly organized and existing in good standing under the laws of the
respective jurisdictions of their incorporation or organization, are duly
qualified as foreign corporations and in good standing in all jurisdictions in
which failure to qualify would have a Material Adverse Effect, and have the
corporate power and authority to own their respective properties and assets and
17
to transact the business in which they are engaged and are or will be qualified
in those jurisdictions wherein they propose to transact material business
operations in the future.
(b) Except as disclosed on Schedule 4.20, Borrower does not own any equity
or long-term debt interest in any other Person, or any right or option to
acquire any such interest in any such Person.
(c) There are no restrictions on the payment of dividends by or advances
from any Subsidiary to Borrower.
SECTION 4.21 CASUALTIES.
Except as disclosed on Schedule 4.21, neither the business nor the
properties of Borrower is currently affected by any environmental hazard, fire,
explosion, accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or other casualty (whether or not covered
by insurance).
SECTION 4.22 INVESTMENT COMPANY ACT.
Borrower is not an "investment company," as defined in Section 3 of the
1940 Act, nor a company that would be an investment company, except for the
exclusions from the definition of an investment company in Section 3(C) of the
1940 Act, and Borrower is not controlled by such a company.
SECTION 4.23 SUFFICIENCY OF CAPITAL.
Borrower is, and after consummation of this Agreement and giving effect to
all Indebtedness incurred and transactions contemplated in connection herewith
will be, Solvent.
SECTION 4.24 CORPORATE NAMES.
Borrower has not, during the preceding five (5) years, done business under
or used any assumed, fictitious or trade names, in its current businesses,
except as disclosed on Schedule 4.24.
SECTION 4.25 INSURANCE.
All of the insurable properties of Borrower are insured for its benefit
under valid and enforceable policies issued by insurers of recognized
responsibility in amounts and against such risks and losses as is customary in
Borrower's industry. Schedule 4.25 sets forth all of Borrower's property
insurance policies.
SECTION 4.26 INTELLECTUAL PROPERTY.
Borrower owns, or is licensed to use, all material trademarks, service
marks, trade names, patents and copyrights presently used to conduct its
business, except those for which the failure to obtain could not be reasonably
expected to have a Material Adverse Effect. To the best of its knowledge,
Borrower has the right to use such intellectual property rights without
infringing or violating the rights of any third parties. No claim has been
asserted by any person to the ownership of or right to use any such rights or
challenging or questioning the validity or effectiveness of any such license or
agreement. Borrower is not in default of any such license agreements in any
material respect, and no event has occurred and is continuing which, with notice
or lapse of time or both, would constitute a material default. Each license
agreement is enforceable in accordance with its terms and has not been canceled,
abandoned or terminated, nor has Borrower received notice thereof. There are no
claims for trademark or copyright infringement pending or threatened against
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Borrower or the Subsidiaries or their respective officers or directors. Neither
Borrower nor any Subsidiary is currently using copyrightable material for which
Borrower or any Subsidiary needs, but does not have, a license to conduct its
existing business. Neither Borrower nor any Subsidiary is currently using any
trademarks for which Borrower or any Subsidiary needs, but does not have, a
valid character or trademark license to conduct its existing business.
SECTION 4.27 REAL PROPERTY.
(a) Set forth on Schedule 4.27 is a list of the addresses of each parcel of
real property owned by or leased to Borrower, as indicated on the Schedule.
(b) Borrower has delivered to the Lender true and correct copies of all of
its leases or subleases and all related amendments, supplements and
modifications and related documents (the "Scheduled Lease Documents"), which
require payments or contingent payments by Borrower or any of the Subsidiaries
subsequent to the date hereof in excess of Twenty-Five Thousand Dollars
($25,000). There are no other agreements, written or oral, between Borrower and
any third parties claiming an interest in Borrower's interest in the Scheduled
Leases or otherwise relating to Borrower's use and occupancy of any leased real
property. All such leases are valid and binding obligations of the parties
thereto, are in full force and effect and enforceable against the parties
thereto in accordance with their terms; and no event has occurred including, but
not limited to, the executed, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby which (whether with or
without notice, lapse of time or both) would constitute a default thereunder. No
property leased under any lease which the Lender has agreed to assume is subject
to any lien, encumbrance, easement, right-of-way, building or use restriction,
exception, variance, reservation or limitation as might in any respect interfere
with or impair the present and continued use thereof in the usual and normal
conduct of Borrower's business.
(c) On the Loan Closing Date, Borrower will hold of record good, marketable
and insurable title to the property described in Schedule 4.27 free and clear of
all title defects, liens, pledges, claims, charges, rights of first refusal,
security interests or other encumbrances and not, in the case of the real
property, subject to any rights-of-way, building or use restrictions,
exceptions, variances, reservations or limitations of any nature whatsoever,
except with respect to all such properties, (i) matters set forth in Schedule
4.27, and (ii) liens for current taxes and assessments not in default
(collectively, the "Permitted Encumbrances"). Notwithstanding the foregoing,
Borrower's representations and warranties regarding title defects with respect
to the real property is limited to defects arising by, through or under
Borrower, but not otherwise. Borrower and the Subsidiaries have adequate title
insurance coverage for such properties. All real property and structures owned
or leased by Borrower, and all equipment owned or leased by Borrower, are in
good operating condition and repair (ordinary wear and tear excepted), taking
into account their respective ages and consistent with their past uses, and are
adequate for the uses to which they are being put. Except as set forth on
Schedule 4.27, to Borrower's best knowledge, the buildings and improvements
owned or leased by Borrower are structurally sound. Borrower has not received
any notice of any violation of any building, zoning or other law, ordinance or
regulation in respect of such property or structures or their use by Borrower.
To Borrower's best knowledge, there is no existing, proposed or contemplated
plan to modify or realign any street or highway or any existing, proposed or
contemplated eminent domain proceeding that would result in the taking of all or
any part of the real property or that would materially adversely affect the
current or planned use of the real property or any part thereof. The facilities
consisting of owned personal property are subject to no liens or encumbrances
except the security interests of record set forth on Schedule 4.27, which
Schedule is a copy of a Uniform Commercial Code ("UCC") search duly obtained by
Borrower in the last thirty (30) days and which search shows security interests
of record relating to such facilities in the State of Colorado. Borrower agrees
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to remove all security interests reflected on such UCC search, if any, prior to
the Loan Closing (except those approved by the Lender in writing) and to remove
any other security interests filed with respect to such facilities between the
date of such UCC search and the date of the Loan Closing.
SECTION 4.28 ENVIRONMENTAL.
(a) Borrower is currently in compliance with all Environmental Laws (as
defined below) which compliance includes, but is not limited to, the possession
by Borrower of all permits and other governmental authorization required under
applicable Environmental Laws, and compliance in all material respects with the
terms and conditions thereof, except in any case where the failure to be in
compliance would not have a Material Adverse Effect.
(b) Except as set forth on Schedule 4.28, Borrower has not stored, disposed
of or arranged for disposal of any Materials of Environmental Concern (as
defined below) on any of the real property, except in compliance with applicable
Environmental Laws.
(c) Borrower has not received any communication (written or oral), whether
from a governmental authority, citizens group, employee or otherwise, that
alleges that Borrower is not in full compliance with Environmental Laws, and
there are no circumstances that may prevent or interfere with such full
compliance in the future. There is no Environmental Claim (as defined below)
pending or, to Borrower's best knowledge, threatened against, or which has been
made known to, Borrower.
(d) Except as set forth on Schedule 4.28, during the period the facilities
have been held by Borrower, its affiliates or, to Borrower's best knowledge, its
predecessors in interest, there have been no actions, activities, circumstances,
conditions, events or incidents including, without limitation, the generation,
handling, transportation, treatment, storage, release, emission, discharge,
presence or disposal of any Hazardous Substance (as defined below), that could
form the basis of any Environmental Claim against Borrower under any
Environmental Law in effect at, or at any time prior to, the Loan Closing.
(e) Without in any way limiting the generality of the foregoing to the best
knowledge of Borrower, (i) there are no underground storage tanks located on the
property owned or leased by Borrower or the Subsidiaries, (ii) there is no
asbestos contained in or forming part of any building, building component,
structure or office space owned or leased by Borrower or the Subsidiaries, and
(iii) no polychlorinated biphenyls ("PCBs") are used or stored at any property
owned or leased by Borrower or the Subsidiaries.
The following terms shall have the following meanings:
"Environmental Claim" means any claim, action, cause of action,
investigation or notice (written or oral) by any person or entity alleging
potential liability (including, without limitation, potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries or penalties) arising out
of, based on or resulting from (a) the presence, or release into the
environment, of any Hazardous Substances at any location, whether or not owned
or operated by Borrower, or (b) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means the federal, state and local environmental,
health or safety laws, regulations, ordinances, rules and policies and common
law in effect on the date hereof and the Loan Closing Date relating to the use,
refinement, handling, treatment, removal, storage, production, manufacture,
transportation or disposal, emissions, discharges, releases or threatened
20
releases of materials of environmental concern, or otherwise relating to
protection of the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata), as the same may
be amended or modified to the date hereof and the Loan Closing Date including,
without limitation, the statutes listed below:
Federal Resources Conservation and Recovery Act of 1976, 42 U.S.C. ss.
6901, et seq.
Federal Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 ▇.▇.▇.▇▇. 9601, et seq.
Federal Clean Air Act, 42 ▇.▇.▇.▇▇. 7401, et seq.
Federal Water Pollution Control Act, Federal Clean Water Act of 1977,
33 U.S.C. ss. 1251, et seq.
Federal Insecticide, Fungicide and Rodenticide Act, Federal Pesticide
Act of 1978, 7 U.S.C. ss. 136, et seq.
Federal Hazardous Materials Transportation Act, 48 ▇.▇.▇.▇▇. 1801, et
seq.
Federal Toxic Substances Control Act, 15 ▇.▇.▇.▇▇. 2601, et seq.
Federal Safe Drinking Water Act, 42 ▇.▇.▇.▇▇. 300f, et seq.
"Hazardous Substances" means any toxic or hazardous waste, pollutants or
substances including, without limitation, asbestos, PCBs, petroleum products and
byproducts, substances defined or listed as "hazardous substance," "toxic
substance," "toxic pollutant" or similarly identified substance or mixture, in
or pursuant to any Environmental Law.
SECTION 4.29 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties of Borrower herein shall survive the
Loan Closing and the delivery of the Debentures, and any investigation at any
time made by or on behalf of the Lender shall not diminish the Lender's right to
rely on Borrower's representations and warranties as herein set forth.
SECTION 4.30 FULL DISCLOSURE.
Neither the representations or warranties of Borrower, the schedules to
this Agreement, the financial statements referenced in Section 4.06, nor any SEC
registration statement, report or proxy statement filed by the Borrower within
the past 12 months contains or will contain, as of the date thereon, any untrue
statement of a material fact or omits or will omit to state any material fact
necessary to keep the statements contained herein or therein from being
misleading in any material respect.
ARTICLE V. - AFFIRMATIVE COVENANTS OF BORROWER
So long as any part of the Debentures remains unpaid or has not been
redeemed or converted hereunder, and until such payment, redemption or
conversion in full, unless the Lender shall otherwise consent in writing,
Borrower agrees that:
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SECTION 5.01 FINANCIAL STATEMENTS, REPORTS AND DOCUMENTS.
(a) Borrower shall accurately and fairly maintain its books of account in
accordance with GAAP, retain ▇▇▇▇ & Associates LLP, or other such firm of
independent certified public accountants requested by Borrower and approved by
the Lender, to make annual audits of its accounts in accordance with generally
accepted auditing standards.
(b) Borrower shall provide the following reports and information to Lender:
(ii) As soon as available, and in any event within ninety (90) days
after the close of each fiscal year, Borrower's annual report on Form 10-KSB
with exhibits for said period.
(iii) Each fiscal quarter, concurrent with the periodic report required
above, a certificate executed by the Chief Financial Officer or Chief Executive
Officer of Borrower (A) stating that a review of the activities of Borrower
during such fiscal period has been made under his supervision and that Borrower
has observed, performed and fulfilled each and every obligation and covenant
contained herein and is not in Default under any of the same or, if any such
Default shall have occurred, specifying the nature and status thereof, and (B)
stating that Borrower and the Subsidiaries are in compliance as of the end of
such fiscal quarter with the agreed minimum financial ratios and standards set
forth in Schedule 7.01 to this Agreement.
(iv) Promptly (but in any event within ten (10) business days) upon
becoming aware of the existence of any condition or event which constitutes a
Default or which, with notice or the passage of time or both would become a
Default or an Event of Default, written notice specifying the nature and period
of existence thereof and the action which Borrower is taking or proposes to take
with respect thereto.
(v) Promptly (but in any event within ten (10) business days) upon the
receipt thereof by Borrower or the Board of Directors of Borrower, copies of all
reports, all management letters and other detailed information submitted to
Borrower or the Board by independent accountants in connection with each annual
or interim audit or review of the accounts or affairs of Borrower made by such
accountants.
(vi) Promptly (but in any event within ten (10) business days), such
other information relating to the finances, budgets, properties, business and
affairs of Borrower and each Subsidiary, as the Lender or the Agent may
reasonably request from time to time.
(vii) Promptly upon its becoming available, one copy of each financial
statement, report, press release, notice or proxy statement sent by Borrower to
stockholders generally, and of each regular or periodic report, registration
statement or prospectus filed by Borrower with any securities exchange or the
SEC or any successor agency, and of any order issued by any Governmental
Authority in any proceeding to which Borrower is a party.
(viii) As soon as available, and in any event within fifteen (15) days
after the close of each fiscal quarter, a report setting forth the number of
stock options, and their respective prices and terms, issued during such quarter
and cumulatively.
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SECTION 5.02 ANNUAL FINANCIAL STATEMENTS.
Furnish Agent within one hundred fifty (150) days after the end of each
fiscal year of Borrower, audited financial statements of Borrower including, but
not limited to, statements of income and stockholders' equity and cash flow from
the beginning of the current fiscal year to the end of such fiscal year and the
balance sheet as at the end of such fiscal year, all prepared in accordance with
GAAP applied on a basis consistent with prior practices, and in reasonable
detail and reported upon without qualification by ▇▇▇▇ & Associates LLP or an
independent certified public accounting firm selected by Borrower and
satisfactory to Agent (the "Accountants"). The report of the Accountants shall
be accompanied by a statement of the Accountants certifying that (i) they have
caused this Agreement to be reviewed, (ii) in making the examination upon which
such report was based either no information came to their attention which to
their knowledge constituted an Event of Default or a Default under this
Agreement or any related agreement or, if such information came to their
attention, specifying any such Default or Event of Default, its nature, when it
occurred and whether it is continuing, and such report shall contain or have
appended thereto calculations which set forth Borrower's compliance with the
requirements or restrictions imposed by Article VII hereof. In addition, the
reports shall be accompanied by a certificate of Borrower's Chief Financial
Officer which shall state that, based on an examination sufficient to permit him
to make an informed statement, no Default or Event of Default exists, or, if
such is not the case, specifying such Default or Event of Default, its nature,
when it occurred, whether it is continuing and the steps being taken by Borrower
with respect to such event, and such certificate shall have appended thereto
calculations which set forth Borrower's compliance with the requirements or
restrictions imposed by Article VII.
SECTION 5.03 QUARTERLY FINANCIAL STATEMENTS.
Furnish Agent within forty-five (45) days after the end of each fiscal
quarter, an unaudited balance sheet of Borrower and unaudited statements of
income and stockholders' equity and cash flow of Borrower reflecting results of
operations from the beginning of the fiscal year to the end of such quarter and
for such quarter, prepared on a basis consistent with prior practices and
complete and correct in all material respects, subject to normal and recurring
year end adjustments that individually and in the aggregate are not material to
Borrower's business. The reports shall be accompanied by a certificate signed by
the Chief Financial Officer of Borrower, which shall state that, based on an
examination sufficient to permit him to make an informed statement, no Default
or Event of Default exists, or, if such is not the case, specifying such Default
or Event of Default, its nature, when it occurred, whether it is continuing and
the steps being taken by Borrower with respect to such default and, such
certificate shall have appended thereto calculations which set forth Borrower's
compliance with the requirements or restrictions imposed by Article VII.
SECTION 5.04 MONTHLY FINANCIAL STATEMENTS.
Furnish Agent within thirty (30) days after the end of each month, an
unaudited balance sheet of Borrower and unaudited statements of income and
stockholders' equity and cash flow of Borrower reflecting results of operations
from the beginning of the fiscal year to the end of such month and for such
month, prepared on a basis consistent with prior practices and complete and
correct in all material respects, subject to normal and recurring year end
adjustments that individually and in the aggregate are not material to
Borrower's business. The reports shall be accompanied by a certificate of
Borrower's Chief Financial Officer, which shall state that, based on an
examination sufficient to permit him to make an informed statement, no Default
or Event of Default exists, or, if such is not the case, specifying such Default
or Event of Default, its nature, when it occurred, whether it is continuing and
23
the steps being taken by Borrower with respect to such event and, such
certificate shall have appended thereto calculations which set forth Borrower's
compliance with the requirements or restrictions imposed by Article VII.
SECTION 5.05 PREPARATION OF BUDGETS.
(a) Prior to the beginning of Borrower's fiscal year Borrower agrees to
prepare and submit to the Board and furnish to Lender a copy of an annual plan
for such year which shall include, without limitation, plans for expansion, if
any, plans for incurrences of Indebtedness and projections regarding other
sources of funds, quarterly projected capital and operating expense budgets,
cash flow statements, profit and loss statements and balance sheet projections,
itemized in such detail as the Board may request.
(b) Borrower shall furnish to the Lender monthly financial reports,
including budgets (as currently used by management in the conduct of business)
within 30 days of the end of each month thereafter.
(c) Borrower agrees that it will review its operations with Agent. Such
operations reviews will be in such depth and detail as Agent shall reasonably
request and will be held as reasonably necessary, generally once a fiscal
quarter.
SECTION 5.06 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Borrower shall, and shall cause its Subsidiaries to, pay and discharge (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits, or upon any property belonging to it, before
delinquent, (ii) all lawful claims (including claims for labor, materials and
supplies) which, if unpaid, will give rise to a Lien upon any of its property,
other than a Permitted Lien, and (iii) all of its other Indebtedness in
accordance with their respective terms, except as prohibited hereunder;
provided, however, that Borrower and its Subsidiaries, if any, shall not be
required to pay any such tax, assessment, charge, levy or other claim if and so
long as the amount, applicability or validity thereof shall currently be
contested in good faith by appropriate proceedings and appropriate accruals and
reserves therefor have been established in accordance with GAAP.
SECTION 5.07 MAINTENANCE OF EXISTENCE AND RIGHTS; CONDUCT OF BUSINESS.
Subject to Section 6.13, Borrower shall, and shall cause its operating
Subsidiaries to, preserve and maintain their respective corporate existence and
all of their respective material rights and privileges necessary in the normal
conduct of their respective businesses, and to conduct their respective
businesses in an orderly and efficient manner consistent with good business
practices and in accordance with all valid regulations and orders of any
Governmental Authority. Borrower shall keep its principal place of business
within the United States.
SECTION 5.08 SEC FILINGS.
So long as Borrower has a class of securities registered pursuant to
Section 12 of the 1934 Act, Borrower shall duly file, when due, all reports and
proxy statements required of a company whose securities are registered for
public trading under and pursuant to the 1934 Act and any rules and regulations
issued thereunder.
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SECTION 5.09 NOTICE.
Borrower shall promptly notify the Lender of (i) any Material Adverse
Change, (ii) any default under any Senior Obligations, other Indebtedness having
an aggregate principal amount in excess of Twenty-Five Thousand Dollars
($25,000), material agreement, contract or other instrument to which it is a
party or by which any of its properties are bound, or any acceleration of the
maturity of any Indebtedness having an aggregate principal amount in excess of
Twenty-Five Thousand Dollars ($25,000), if any, (iii) any material adverse claim
against or affecting Borrower or its Subsidiaries, if any, or any of its
properties, and (iv) the commencement of, and any determination in, any material
litigation with any third party or any proceeding before any Governmental
Authority.
SECTION 5.10 COMPLIANCE WITH LOAN DOCUMENTS.
Borrower shall, and shall cause its Subsidiaries to, promptly comply with
any and all covenants and provisions of the Loan Documents.
SECTION 5.11 COMPLIANCE WITH MATERIAL AGREEMENTS.
Borrower shall, and shall cause each of its Subsidiaries to, comply in all
material respects with all Senior Documents, material agreements, indentures,
mortgages or documents binding on it or affecting its properties or business.
SECTION 5.12 SENIOR CREDITOR AGREEMENT.
In the event that Bank One does not enter into the Subordination and
Intercreditor Agreement pursuant to Section 3.01(e), within 5 days after
closing, Borrower shall pay the entire amount owed to Bank One under that
certain Promissory Note, dated April 18, 2002, and promptly secure release of
Bank One's security interest granted under the related credit agreement.
SECTION 5.13 OPERATIONS AND PROPERTIES.
Borrower shall, and shall cause each of its Subsidiaries to, act prudently
and in accordance with customary industry standards in managing or operating its
assets, properties, business and investments. Borrower shall, and shall cause
each of its Subsidiaries to, keep in good working order and condition, ordinary
wear and tear excepted, all of its assets and properties which are necessary to
the conduct of its business.
SECTION 5.14 BOOKS AND RECORDS; ACCESS.
Borrower shall, and shall cause each of its Subsidiaries to, maintain
complete and accurate books and records of its transactions in accordance with
good accounting practices. Borrower shall give each duly authorized
representative of the Lender access during all normal business hours, upon
reasonable notice, to, and shall permit such representative to examine, copy or
make excerpts from, any and all books, records and documents in the possession
of Borrower and its Subsidiaries and relating to its affairs, and to inspect any
of the properties of Borrower and its Subsidiaries; provided that the Lender
agrees that any such inspection will be performed so as not to interfere with
Borrower's normal business operations. Borrower shall make a copy of this
Agreement, along with any waivers, consents, modifications or amendments,
available for review at its principal office by the Lender or the Lender's
representatives.
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SECTION 5.15 COMPLIANCE WITH LAW.
Borrower shall, and shall cause each of its Subsidiaries to, comply in all
material respects with all applicable laws, rules, regulations, ordinances and
all orders and decrees of any Governmental Authority applicable to it or any of
its properties, businesses or operations.
SECTION 5.16 INSURANCE.
Borrower shall, and shall cause each of its Subsidiaries to, maintain such
worker's compensation insurance, liability insurance and insurance on its
properties, assets and business, now owned or hereafter acquired, against such
casualties, risks and contingencies, and in such types and amounts, as are
consistent with customary practices and standards of companies engaged in
similar businesses.
SECTION 5.17 AUTHORIZATIONS AND APPROVALS.
Borrower shall, and shall cause each of its Subsidiaries to, promptly
obtain, from time to time and at its own expense, all such governmental
licenses, authorizations, consents, permits and approvals as may be required to
enable it to comply with its obligations hereunder and under the other Loan
Documents.
SECTION 5.18 ERISA COMPLIANCE.
Borrower shall, at all times,(i) make prompt payment of all contributions
required under all Plans, if any, and shall meet the minimum funding standards
set forth in ERISA with respect to its Plans subject to ERISA, if any, (ii)
notify the Lender immediately of any fact in connection with any of its Plans,
which might constitute grounds for termination thereof by the Pension Benefit
Guaranty Corporation or for the appointment, by the appropriate United States
District Court, of a trustee to administer such Plan, together with a statement,
if requested by the Lender, as to the reason therefor and the action, if any,
proposed to be taken with respect thereto, and (iii) furnish to the Lender, upon
its request, such additional information concerning any of its Plans as may be
reasonably requested.
SECTION 5.19 FURTHER ASSURANCES.
Borrower shall, and shall cause each of its Subsidiaries to, make, execute
or endorse, and acknowledge and deliver or file or cause the same to be done,
all such notices, certifications and additional agreements, undertakings,
transfers, assignments or other assurances, and take any and all such other
action as the Lender may, from time to time, deem reasonably necessary or proper
in connection with any of the Loan Documents, or the obligations of Borrower or
its Subsidiaries, if any, thereunder, which the Lender may request from time to
time.
SECTION 5.20 INDEMNITY BY BORROWER.
Borrower shall indemnify, save and hold harmless the Lender and its
directors, officers, lenders, attorneys and employees (the "Indemnitee") from
and against (i) any and all claims, demands, actions or causes of action that
are asserted against any Indemnitee if the claim, demand, action or cause of
action, directly or indirectly, relates to this Agreement and the other Loan
Documents, the Loan, the use of proceeds of the Loan or the relationship of
Borrower and the Lender under this Agreement or any transaction contemplated
pursuant to this Agreement, (ii) any administrative or investigative proceeding
by any Governmental Authority, directly or indirectly, related to a claim,
26
demand, action or cause of action described in clause (i) above, and (iii) any
and all liabilities, losses, costs or expenses (including reasonable attorneys'
fees and disbursements) that any Indemnitee suffers or incurs as a result of any
of the foregoing; provided, however, that Borrower shall have no obligation
under this Section 5.16 to the Lender with respect to any of the foregoing
arising out of the gross negligence or willful misconduct of the Lender or its
assignees or the breach by Lender or its assignees of this Agreement or any
other Loan Document or other document executed in connection with any of the
aforesaid, the breach by the Lender or its assignees of any intercreditor or
participation agreement or commitment with other parties, the violation or
alleged violation of any law, rule or regulation by the Lender or its assignees,
or from the transfer or disposition by the Lender of any Debentures or the
Common Stock issued upon conversion of the Debentures. If any claim, demand,
action or cause of action is asserted against any Indemnitee, such Indemnitee
shall promptly notify Borrower, but the failure to so promptly notify Borrower
shall not affect Borrower's obligations under this Section unless such failure
materially prejudices Borrower's right or ability to participate in the contest
of such claim, demand, action or cause of action, as hereinafter provided. In
the event that such Indemnitee's failure to properly notify Borrower materially
prejudices Borrower's right or ability to participate in the contest of such
claim, demand action or cause of action, then said Indemnitee shall have no
right to receive, and Borrower shall have no obligation to pay, any
indemnification amounts hereunder. Borrower may elect to defend any such claim,
demand, action or cause of action (at its own expense) asserted against said
Indemnitee and, if requested by Borrower in writing and so long as no Default or
Event of Default shall have occurred and be continuing, such Indemnitee (at
Borrower's expense) shall, in good faith, contest the validity, applicability
and amount of such claim, demand, action or cause of action and shall permit
Borrower to participate in such contest. Any Indemnitee that proposes to settle
or compromise any claim or proceeding for which Borrower may be liable, for
payment to or on behalf of an Indemnitee hereunder, shall give Borrower written
notice of the terms of such proposed settlement or compromise reasonably in
advance of settling or compromising such claim or proceeding and shall obtain
Borrower's written concurrence thereto. In the event that said Indemnitee fails
to obtain Borrower's prior written consent to any such settlement or compromise,
said Indemnitee shall have no right to receive, and Borrower shall have no
obligation to pay, any indemnification amounts hereunder. Each Indemnitee may
employ counsel, which counsel shall be reasonably acceptable to Borrower, in
enforcing its rights hereunder and in defending against any claim, demand,
action or cause of action covered by this Section 5.16; provided, however, that
each Indemnitee shall endeavor in connection with any matter covered by this
Section 5.16 which also involves any other Indemnitee, use reasonable efforts to
avoid unnecessary duplication of effort by counsel for all Indemnitees,
including allowing Borrower to select one lawyer for all parties, such selection
to be subject to the approval of such parties, which approval shall not be
unreasonably withheld. Any obligation or liability of Borrower to any Indemnitee
under this Section 5.16 shall survive the expiration or termination of this
Agreement and the repayment of the Debentures.
SECTION 5.21 RESERVATION OF SHARES.
Borrower shall, at all times, reserve and keep available sufficient
authorized and unissued shares of Common Stock to effect the conversion of the
Debentures. The Borrower has obtained any necessary approval of its shareholders
to issue to the Lender upon conversion of the Debentures all of the shares of
Common Stock to which it is then entitled.
SECTION 5.22 OWNERSHIP OF SUBSIDIARIES.
Borrower shall own, at all times, all of the capital stock of, or other
equity interests in, the Subsidiaries, except as disclosed on Schedule 5.18.
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SECTION 5.23 RETENTION OF STOCK OWNERSHIP.
(a) Borrower shall not offer, sell or otherwise dispose of any shares of
Common Stock or securities exercisable or convertible into shares of Common
Stock for a period of twelve (12) months following the Loan Closing without the
written approval of the Lender, other than (i) Common Stock issued upon the
conversion of any of the Debentures; and (ii) Common Stock issued upon exercise
of any presently outstanding employee stock options or warrants or employee
stock options or warrants granted in the ordinary course of business consistent
with past practices.
(b) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇) and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇▇")
will execute and deliver Lock-Up Agreements at the Loan Closing which shall
provide that they will not offer, sell or otherwise dispose of the shares of
Common Stock beneficially owned or controlled by them (including subsequently
acquired shares or securities exercisable or convertible into shares) for a
period of twelve (12) months following the Loan Closing, except for intra-family
transfers or estate planning purposes, without the consent of the Lender.
Nothing therein shall restrict or otherwise limit the ability or right of
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ to pledge to a bank or margin any shares of Common
Stock otherwise subject to the terms of the Lock-Up Letter provided that the
pledgee delivers a lock-up letter in a form satisfactory to Lender for the
remaining period covered hereby prior to its acquisition of any such shares.
Thereafter, each such person shall only sell such shares pursuant to Rule 144,
without the consent of the Lender, until the Debentures have been paid in full.
Notwithstanding the foregoing, each such person may sell such shares at any time
at a price in excess of $.90 per share.
SECTION 5.24 SUBSEQUENTLY FORMED U.S. SUBSIDIARIES.
Borrower shall cause all subsequently formed U.S. Subsidiaries to execute a
Subsidiaries' Guaranty and Security Agreement referenced in Section 3.01(c) and
shall pledge all their capital stock to the Lender and Agent.
ARTICLE VI. - NEGATIVE COVENANTS OF BORROWER
So long as any part of the Debentures has not been redeemed or converted
hereunder, and until such redemption or conversion in full, unless the Lender
shall otherwise consent in writing, Borrower agrees that:
SECTION 6.01 LIMITATION ON INDEBTEDNESS.
At Loan Closing, Borrower and its Subsidiaries shall not have any
outstanding Indebtedness, except Indebtedness arising under this Agreement, the
Debentures, the Guaranties, or Permitted Indebtedness or as set forth in
Schedule 6.01. Borrower and its Subsidiaries will not incur or guarantee any
Indebtedness senior to or pari passu with the Debentures, without the consent of
the Lender, except for asset based loans for Borrower's operations, and Senior
Obligations.
SECTION 6.02 LIMITATION ON LIENS.
Borrower shall not, and shall not permit its Subsidiaries to, create,
cause, incur, permit or suffer to exist any Lien upon any of its properties or
assets, other than Permitted Liens.
28
SECTION 6.03 LIMITATION ON INVESTMENTS.
Borrower shall not, and shall not permit its Subsidiaries to, make or have
outstanding any Investments in any Person, except for Borrower's or any
Subsidiary's acquisition or ownership of stock of or other equity interests in
Subsidiaries (including Persons that will be Subsidiaries after giving effect to
such Investments), loans and other transactions between Borrower and any
Subsidiaries, short term bank deposits, money market investments,
investment-grade commercial paper, government securities and such other "cash
equivalent" investments as the Lender may, from time to time, approve, and
customer obligations and receivables arising out of sales or leases made or the
rendering of services in the ordinary course of business.
SECTION 6.04 ALTERATION OF MATERIAL AGREEMENTS.
Borrower shall not, and shall not permit its Subsidiaries to, consent to or
permit any alteration, amendment, modification, release, waiver or termination
of any Senior Documentation or material agreement to which it is a party, other
than in the ordinary course of business.
SECTION 6.05 TRANSACTIONS WITH AFFILIATES.
Except as disclosed in Schedule 6.05, Borrower shall not, and shall not
permit its Subsidiaries to, enter into any transaction not in the ordinary
course of business with, or pay any management fees to, any Affiliate, except
for intercompany transactions, without the consent of the Lender, unless the
terms thereof (i) are no less favorable to Borrower or such Subsidiary than
those that could be obtained at the time of such transaction in arm's-length
dealings with a Person who is not an Affiliate, or (ii) if such transaction
involves an amount less than Fifty Thousand Dollars ($50,000), are set forth in
writing and have been approved by a majority of the members of the Board of
Directors having no personal stake in the transaction. Notwithstanding the
foregoing, Borrower may grant options to employees or directors if otherwise
permitted under this Agreement.
SECTION 6.06 LIMITATIONS ON ACQUISITION OF NONRELATED BUSINESS.
Borrower shall not, and shall not permit its Subsidiaries to, engage in any
line of business, or acquire any new product lines or business, or acquire any
companies unless such new product line or business acquired is primarily
involved in, or substantially similar or related to, Borrower's current lines of
business or extensions thereof.
SECTION 6.07 LIMITATION ON SALE OF PROPERTIES.
Borrower shall not, and shall not permit its Subsidiaries to, (i) sell,
assign, convey, exchange, lease or otherwise dispose of any of its properties,
rights, assets or business (including the capital stock of its operating
Subsidiaries), whether now owned or hereafter acquired, without the consent of
the Lender, except in the ordinary course of business, or (ii) sell, assign or
discount any accounts receivable, except in the ordinary course of business
(which shall include receivable financing or securitization), in each case
without the consent of the Lender; provided, however, that Borrower may sell its
securities to unaffiliated third parties at the current trading price, but not
less than the conversion price and to employees under its existing stock option
plan.
29
SECTION 6.08 FISCAL YEAR AND ACCOUNTING METHOD.
Borrower shall not, and shall not permit its Subsidiaries to, change its
fiscal year or method of accounting, except as permitted by GAAP.
SECTION 6.09 LIQUIDATION.
Borrower shall not, and shall not permit its Subsidiaries to, (i) dissolve
or liquidate (except for dissolution or liquidation of inactive Subsidiaries in
the ordinary course of business), or (ii) enter into any other transaction that
has a similar effect.
SECTION 6.10 MATERIAL AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS.
Borrower shall not, and shall not permit its Subsidiaries to, amend its
Certificate or Articles of Incorporation (or other charter document) or bylaws
in any material respect, without the consent of the Lender.
SECTION 6.11 EXECUTIVE COMPENSATION.
(a) Borrower will not increase the salary, bonus, or other compensation
programs (whether in cash, securities or other property, and whether payment is
deferred or current) of its chief executive officer and chief financial officer,
unless such compensation increase is approved by a majority of the Board or a
Compensation Committee of the Board, a majority of whom shall be nonemployee
Directors. Compensation to other senior executive officers, including division
managers, shall be consistent with the policies of the Compensation Committee.
(b) Borrower shall not implement any bonus, profit sharing or other
incentive plans, until such plans are formally adopted by the majority of the
Board or a Compensation Committee of the Board, a majority of whom shall be
nonemployee Directors. Borrower's executive compensation shall be consistent
with the general compensation policies adopted by the Compensation Committee of
the Board.
SECTION 6.12 RESTRICTED PAYMENTS.
Borrower shall not (i) without the consent of the Lender, declare or pay
any Dividend (other than stock dividends) or make any other cash distribution on
(a) any Common Stock, (b) any Preferred Stock, if at the time of such
declaration or payment, Borrower is in Default with respect to the Loan, (ii)
purchase, redeem or otherwise acquire any shares of Common Stock or any shares
of Preferred Stock, without the consent of the Lender, (iii) make any payments
of Indebtedness (other than Senior Obligations) which are pari passu or
subordinated to the Debentures, if at the time of such payment, Borrower is in
Default with respect to the Loan, or (iv) make any prepayments of Indebtedness
(other than Senior Obligations) which are pari passu or subordinated to the
Debentures, unless the Debentures is prepaid on a pro rata basis, without the
consent of the Lender. Borrower shall not permit its Subsidiaries to enter into
any agreements restricting the payment of dividends from the Subsidiaries to
Borrower, without the consent of the Lender.
SECTION 6.13 CONSOLIDATION OR MERGER.
Borrower shall not consolidate with or merge into any other corporation,
unless the surviving corporation, after such merger or consolidation, will not
30
be in Default and the surviving corporation becomes a party to this Agreement.
Subsidiaries shall only consolidate with or merge into Borrower or another
Subsidiary; provided, however, that a Subsidiary may merge or consolidate with
any other entity as long as such Subsidiary is the surviving corporation of such
merger or consolidation, and Borrower is not in Default.
ARTICLE VII. - COVENANTS OF MAINTENANCE OF FINANCIAL STANDARDS
SECTION 7.01 FINANCIAL RATIOS.
So long as any of the Debentures has not been redeemed or converted
hereunder, and until such redemption or conversion has been made in full, or
unless the Lender shall otherwise consent in writing, Borrower, on a
consolidated basis, shall be in compliance with the agreed minimum financial
ratios and standards provided in Schedule 7.01, as of the end of each fiscal
quarter of Borrower and as set forth in its most recent quarterly compliance
certificates delivered pursuant to Section 5.01.
ARTICLE VIII. - EVENTS OF DEFAULT
SECTION 8.01 EVENTS OF DEFAULT.
An "Event of Default" shall exist if any one or more of the following
events (herein collectively called "Events of Default") shall occur and be
continuing:
(a) Borrower shall fail to pay when due (or shall state in writing an
intention not to pay or its inability to pay) any installment of interest on or
principal of, any Debentures or any fee, expense or other payment required
hereunder;
(b) Any representation or warranty made under this Agreement, or any of the
other Loan Documents, or in any certificate or statement furnished or made to
Agent pursuant hereto or in connection herewith or with the Loans hereunder, or
in any Subsidiary Document shall prove to be untrue or inaccurate in any
material respect as of the date on which such representation or warranty was
made;
(c) Default shall occur in the performance of any of the covenants or
agreements of Borrower or of its Subsidiaries contained herein, or in any of the
other Loan Documents or in any Subsidiary Document and the Company shall remain
in default for a period of thirty (30) days;
(d) Provided that Borrower enters into the Subordination and Intercreditor
Agreement in accordance with Section 5.12, an event of default, default, or an
event which, with the passage of time, would result in a default under any
Senior Documents, including, without limitation, any of Borrower's credit
agreements with Bank One, N.A.
(e) Default shall occur in the payment of any Senior Obligations (provided
that Borrower enters into the Subordination and Intercreditor Agreement in
accordance with Section 5.12) or in the payment of any other Indebtedness having
an aggregate principal amount in excess of Twenty-Five Thousand Dollars
($25,000), or nonmonetary default shall occur in respect of any note, loan
agreement or credit agreement relating to any Indebtedness having an aggregate
principal amount in excess of Twenty-Five Thousand Dollars ($25,000), and such
default continues for more than the period of grace, if any, specified therein
or any Indebtedness having an aggregate principal amount in excess of
Twenty-Five Thousand Dollars ($25,000), shall become due before its stated
31
maturity by acceleration of the maturity, or any indebtedness having an
aggregate principal amount in excess of Twenty-Five Thousand Dollars ($25,000),
shall become due by its terms and shall not be promptly paid or extended;
(f) Any of the Loan Documents shall cease to be legal, valid and binding
agreements enforceable against Borrower in accordance with the respective terms,
or shall, in any way, be terminated or become or be declared by any court or by
Borrower or any Subsidiary in any legal proceeding to be ineffective or
inoperative, or shall in any way whatsoever cease to give or provide the
respective rights, titles, interests, remedies, powers or privileges stated
therein to be created thereby;
(g) Borrower or its Subsidiaries shall (i) apply for or consent to the
appointment of a receiver, trustee, custodian, intervenor or liquidator of
itself, or of all or substantially all of such Person's assets, (ii) file a
voluntary petition in bankruptcy, admit in writing that such Person is unable to
pay such Person's debts as they become due or generally not pay such Person's
debts as they become due, (iii) make a general assignment for the benefit of
creditors, (iv) file a petition or answer seeking reorganization or an
arrangement with creditors or to take advantage of any bankruptcy or insolvency
laws, (v) file an answer admitting the material allegations of, or consent to,
or default in answering, a petition filed against such Person in any bankruptcy,
reorganization or insolvency proceeding, or (vi) take corporate action for the
purpose of effecting any of the foregoing;
(h) An involuntary petition or complaint shall be filed against Borrower or
any of its Subsidiaries seeking bankruptcy or reorganization of such Person or
the appointment of a receiver, custodian, trustee, intervenor or liquidator of
such Person, or all or substantially all of such Person's assets, and such
petition or complaint shall not have been dismissed within sixty (60) days of
the filing thereof or an order, order for relief, judgment or decree shall be
entered by any court of competent jurisdiction or other competent authority
approving a petition or complaint seeking reorganization of Borrower or its
subsidiary or appointing a receiver, custodian, trustee, intervenor or
liquidator of such Person, or of all or substantially all of such Person's
assets;
(i) Any final judgment(s) for the payment of money in excess of the sum of
One Hundred Thousand Dollars ($100,000) in the aggregate shall be rendered
against Borrower or any Subsidiary and such judgment or judgments shall not be
satisfied or discharged prior to the date on which any of its assets could be
lawfully sold to satisfy such judgment; or
(j) Borrower shall fail to issue and deliver shares of Common Stock as
provided herein upon conversion of the Debentures.
SECTION 8.02 REMEDIES UPON EVENT OF DEFAULT.
(a) If an Event of Default shall have occurred and be continuing, then the
Lender may exercise any one or more of the following rights and remedies, and
any other remedies provided in any of the Loan Documents, as the Lender in its
sole discretion may deem necessary or appropriate:
(i) declare the unpaid Principal Amount (after application of any
payments or installments received by the Lender) of, and all interest then
accrued but unpaid on, the Debentures and any other liabilities hereunder to be
forthwith due and payable, whereupon the same shall forthwith become due and
payable without presentment, demand, protest, notice of default, notice of
acceleration or of intention to accelerate or other notice of any kind, all of
which Borrower hereby expressly waives, anything contained herein or in the
Debentures to the contrary notwithstanding;
(ii) reduce any claim to judgment; and
32
(iii) without notice of default or demand, pursue and enforce any of
the Lender's rights and remedies under the Loan Documents and the Subsidiary
Documents, or otherwise provided under or pursuant to any applicable law or
agreement, all of which rights may be specifically enforced.
(b) In the event of a violation by Borrower of the negative covenants set
forth in Article VI, the Lender may, in its sole discretion, (i) waive
compliance with the covenants, provided Borrower is in compliance with Section
7.01 hereof; or (ii) require Borrower to redeem the Debentures at the higher of
market value or the unpaid principal amount of the Debentures, together with an
amount equal to an 18% annual yield on the principal amount through the
Redemption Date, whichever is greater.
SECTION 8.03 PERFORMANCE BY THE LENDER.
Should Borrower or any Subsidiary fail to perform any covenant, duty or
agreement contained herein or in any of the other Loan Documents or in any
Subsidiary Document, Lender or Agent may perform or attempt to perform such
covenant, duty or agreement on behalf of Borrower. In such event, Borrower
shall, at the request of Lender or Agent, promptly pay any amount reasonably
expended by Lender or Agent in such performance or attempted performance to
Lender or Agent at its principal office, together with interest thereon, at the
interest rate specified in the Debentures, from the date of such expenditure
until paid. Notwithstanding the foregoing, it is expressly understood that
Lender or Agent assumes no liability or responsibility for the performance of
any duties of Borrower or any Subsidiary hereunder or under any of the other
Loan Documents or under any Subsidiary Document.
SECTION 8.04 PAYMENT OF EXPENSES INCURRED BY THE LENDER.
Upon the occurrence of a Default or an Event of Default, which occurrence
is not cured within the notice provisions, if any, provided herein, Borrower
agrees to pay and shall pay all costs and expenses (including reasonable
attorneys' fees and expenses) incurred by Lender or Agent in connection with the
preservation and enforcement of the Lender's rights under this Agreement, the
Debentures or any other Loan Document.
ARTICLE IX. - REGISTRATION RIGHTS
SECTION 9.01 "PIGGY-BACK" REGISTRATION.
If Borrower proposes to register any of its capital stock under the 1933
Act in connection with the public offering of such securities for its own
account or for the account of its security holders, other than Holders of
Registrable Securities pursuant hereto (a "Piggy-Back Registration Statement"),
except for (i) a registration relating solely to the sale of securities to
participants in Borrower's stock or stock option plans or employee benefit plans
or (ii) a registration relating solely to a transaction for which Form S-4 may
be used, then:
(a) Borrower shall give written notice of such determination to each Holder
of Registrable Securities, and each such Holder shall have the right to request,
by written notice given to Borrower within 15 days of the date that such written
notice was mailed by Borrower to such Holder, that a specific number of
Registrable Securities held by such Holder be included in the Piggy-Back
Registration Statement (and related underwritten offering, if any) and the
states in which such Registrable Securities are to be sold;
33
(b) If the Piggy-Back Registration Statement relates to an underwritten
offering, the notice given to each Holder shall specify the name or names of the
managing underwriter or underwriters for such offering. In addition, such notice
shall also specify the number of securities to be registered for the account of
Borrower and for the account of its shareholders (other than the Holders of
Registrable Securities), if any;
(c) If the Piggy-Back Registration Statement relates to an underwritten
offering, each Holder of Registrable Securities to be included therein must
agree (i) to sell such Holder's Registrable Securities on the same basis as
provided in the underwriting arrangement approved by Borrower, and (ii) to
timely complete and execute all questionnaires, powers of attorney, indemnities,
hold-back agreements, lock-up agreements, underwriting agreements and other
documents required under the terms of such underwriting arrangements or by the
SEC or by any state securities regulatory body;
(d) If the managing underwriter or underwriters for the underwritten
offering under the Piggy-Back Registration Statement determines that inclusion
of all or any portion of the Registrable Securities in such offering would
materially adversely affect the ability of the underwriters for such offering to
sell all of the securities requested to be included for sale in such offering at
the best price obtainable therefor, the aggregate number of Registrable
Securities that may be sold by the Holders shall be limited to such number of
Registrable Securities, if any, that the managing underwriter or underwriters
determine may be included therein without such adverse effect as provided below.
If the number of securities proposed to be sold in such underwritten offering
exceeds the number of securities that may be sold in such offering, there shall
be included in the offering, first, up to the maximum number of securities to be
sold by Borrower for its own account and for the account of other stockholders
(other than Holders of Registrable Securities), as they may agree among
themselves, and second, as to the balance, if any, Registrable Securities
requested to be included therein by the Holders thereof (pro rata as between
such Holders based upon the number of Registrable Securities initially proposed
to be registered by each), or in such other proportions as the managing
underwriter or underwriters for the offering may require; provided, however,
that in the event that the number of securities proposed to be sold in such
underwritten offering exceeds the number of securities that may be sold in such
offering pursuant to the terms and conditions set forth above and the Piggy-Back
Registration Statement is a result of public offering by Borrower of its
securities for its own account, there shall be included in the offering, first,
up to the maximum number of securities to be sold by Borrower for its own
account and second, as to the balance, if any, securities to be sold for the
account of Borrower's stockholders (both the Holders of Registrable Securities
requested and such other stockholders of Borrower requested to be included
therein) on a pro rata basis;
(e) Holders of Registrable Securities shall have the right to withdraw
their Registrable Securities from the Piggy-Back Registration Statement, but if
the same relates to an underwritten offering, they may only do so during the
time period and on the terms agreed upon among the underwriters for such
underwritten offering and the Holders of Registrable Securities;
(f) The exercise of the registration rights of the Holders with respect to
any specific underwritten offering shall be subject to a 90-day delay at the
request of the managing underwriter;
(g) All piggyback registration rights of the Holders shall terminate when
all of the Registrable Securities Then Outstanding may be sold pursuant to Rule
144(k).
34
SECTION 9.02 SHELF REGISTRATION.
Borrower shall file a registration statement on Form SB-2 under the 1933
Act (the "Shelf Registration") covering all of the Registrable Securities within
180 days of the date of the Debentures, and Borrower shall use its best efforts
to cause the Shelf Registration to be declared effective and to keep the Shelf
Registration continuously effective until all of the Registrable Securities
registered therein cease to be Registrable Securities. The securities shall
cease to be Registrable Securities (a) when the Shelf Registration shall have
become effective under the 1933 Act and such securities shall have been disposed
of pursuant to a registration statement, or (b) such securities shall have been
sold as permitted by Rule 144 under the 1933 Act or the date on which the
Registrable Securities may be sold pursuant to Rule 144(k), whichever is the
first to occur. Borrower agrees, if necessary, to supplement or amend the Shelf
Registration, as required by the registration form utilized by Borrower or by
the instructions applicable to such registration form or by the 1933 Act, and
Borrower agrees to furnish to the holders of the Registrable Securities copies
of any such supplement or amendment prior to its being used.
SECTION 9.03 OBLIGATIONS OF BORROWER.
Whenever required to effect the registration of any Registrable Securities
pursuant to this Agreement, Borrower shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration statement with respect to
such Registrable Securities and use all reasonable efforts to cause such
registration statement to become effective, subject to the receipt of all
required information from the Holders, and keep such registration statement
effective until the sooner of all such Registrable Securities having been
distributed, or until 120 days have elapsed since such registration statement
became effective (subject to an extension of this period as provided below);
(b) Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
1933 Act with respect to the disposition of all securities covered by such
registration statement, or 120 days have elapsed since such registration
statement became effective (subject to the extension of this period as provided
below);
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
1933 Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them;
(d) Use all reasonable efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that Borrower shall not be required, in connection therewith or as a
condition thereto, to qualify as a broker-dealer in any states or jurisdictions
or to do business or to file a general consent to service of process in any such
states or jurisdictions;
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement with the managing
underwriter of such offering, in usual and customary form reasonably
satisfactory to Borrower and the Holders of a majority of the Registrable
Securities to be included in such offering. Each Holder participating in such
underwriting shall also enter into and perform its obligations under such an
agreement;
35
(f) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto and
covered by such registration statement is required to be delivered under the
1933 Act, of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; and
(g) In the event of the notification provided for in Section 9.03(f) above,
Borrower shall use its best efforts to prepare and file with the SEC (and to
provide copies thereof to the Holders) as soon as reasonably possible an amended
prospectus complying with the 1933 Act, and the period during which the
prospectus referred to in the notice provided for in Section 9.03(f) above
cannot be used and the time period prior to the use of the amended prospectus
referred to in this Section 9.03(g) shall not be counted in the 120 day period
of this Section 9.03.
SECTION 9.04 FURNISH INFORMATION.
(a) It shall be a condition precedent to the obligations of Borrower to
take any action pursuant to this Article IX that the selling Holders shall
furnish to Borrower any and all information reasonably requested by Borrower,
its officers, directors, employees, counsel, agents or representatives, the
underwriter or underwriters, if any, and the SEC or any other Governmental
Authority, including, but not limited to: (i) such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities, as shall be required to effect the registration
of their Registrable Securities; and (ii) the identity of and compensation to be
paid to any proposed underwriter or broker-dealer to be employed in connection
therewith.
(b) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the 1933 Act, Borrower shall
give the Holders of Registrable Securities on whose behalf such Registrable
Securities are to be registered and their underwriters, if any, and their
respective counsel and accountants, at such Holders' sole cost and expense
(except as otherwise set forth herein), such access to copies of Borrower's
records and documents and such opportunities to discuss the business of Borrower
with its officers and the independent public accountants who have certified its
financial statements as shall be reasonably necessary in the opinion of such
Holders and such underwriters or their respective counsel, to conduct a
reasonable investigation within the meaning of the 1933 Act.
SECTION 9.05 EXPENSES OF REGISTRATION.
All expenses, other than underwriting discounts and commissions applicable
to the Registrable Securities sold by selling Holders, incurred in connection
with the registration of the Registrable Securities pursuant to this Article,
including, without limitation, all registration, filing and qualification fees,
printer's expenses, and accounting and legal fees and expenses of Borrower,
shall be borne by Borrower; provided, however, selling Holders shall be
responsible for all costs of their due diligence and legal counsel and other
advisors in connection with a registration of Registrable Securities.
SECTION 9.06 INDEMNIFICATION REGARDING REGISTRATION RIGHTS.
If any Registrable Securities are included in a registration statement
under this Article:
(a) To the extent permitted by law, Borrower will indemnify and hold
harmless each Holder, the officers and directors of each Holder, any underwriter
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(as defined in the ▇▇▇▇ ▇▇▇) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the 1933 Act or the
1934 Act, against any losses, claims, damages, liabilities (joint or several) or
any legal or other costs and expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action to which they may become subject under the 1933 Act, the 1934 Act or
state law, insofar as such losses, claims, damages, costs, expenses or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (each a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact with respect
to Borrower or its securities contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements therein; (ii) the omission or alleged omission to
state therein a material fact with respect to Borrower or its securities
required to be stated therein or necessary to make the statements therein not
misleading; or (iii) any violation or alleged violation by Borrower of the 1933
Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the 1933 Act, the 1934 Act or any state securities law.
Notwithstanding the foregoing, the indemnity agreement contained in this Section
9.06(a) shall not apply and Borrower shall not be liable (i) in any such case
for any such loss, claim, damage, costs, expenses, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon, and in conformity with, written information furnished expressly
for use in connection with such registration by any such Holder or its
authorized agent, underwriter or controlling person, or (ii) for amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the prior written consent of Borrower, which
consent shall not be unreasonably withheld.
(b) To the extent permitted by law, each Holder who participates in a
registration pursuant to the terms and conditions of this Agreement shall
indemnify and hold harmless Borrower, each of its directors and officers who
have signed the registration statement, each Person, if any, who controls
Borrower within the meaning of the 1933 Act, the 1934 Act, any state securities
law or any rule or regulation promulgated under the 1933 Act, the 1934 Act or
any state securities law, each of Borrower's employees, agents, counsel and
representatives, any underwriter and any other Holder selling securities in such
registration statement, or any of its directors or officers, or any person who
controls such Holder, against any losses, claims, damages, costs, expenses or
liabilities (joint or several) to which Borrower or any such director, officer,
controlling person, employee, agent, representative, underwriter or other such
Holder, or director, officer or controlling person thereof, may become subject,
under the 1933 Act, the 1934 Act or other federal or state law, only insofar as
such losses, claims, damages, costs, expenses or liabilities or actions in
respect thereto arise out of or are based upon any Violation, in each case to
the extent, and only to the extent, that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such Registration. Each such Holder will indemnify
any legal or other expenses reasonably incurred by Borrower or any such
director, officer, employee, agent, representative, controlling person,
underwriter or other Holder, or officer, director or any controlling person
thereof, in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this Section 9.06(b) shall not apply to amounts paid in settlement
of any such loss, claim, damage, costs, expenses, liability or action if such
settlement is effected without the prior written consent of the Holder, which
consent shall not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this Section 9.06
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 9.06, deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party shall have the right to retain its
37
own counsel, with the reasonable fees and expenses of such counsel to be paid by
the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve the indemnifying party of its
obligations under this Section 9.06, except to the extent that the failure
results in a failure of actual notice to the indemnifying party and such
indemnifying party is materially prejudiced in its ability to defend such action
solely as a result of the failure to give such notice.
(d) If the indemnification provided for in this Section 9.06 is unavailable
to an indemnified party under this Section in respect of any losses, claims,
damages, costs, expenses, liabilities or actions referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, costs, expenses, liabilities or actions in such
proportion as is appropriate to reflect the relative fault of Borrower, on the
one hand and of the Holder, on the other, in connection with the Violation that
resulted in such losses, claims, damages, costs, expenses, liabilities or
actions. The relative fault of Borrower, on the one hand, and of the Holder, on
the other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of the material fact or the omission to state
a material fact relates to information supplied by Borrower or by the Holder,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) Borrower, on the one hand, and the Holders, on the other, agree that it
would not be just and equitable if contribution pursuant to this Section 9.06
were determined by a pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of losses, claims, damages, costs, expenses, liabilities and
actions referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any reasonable legal or
other expenses incurred by such indemnified party in connection with defending
any such action or claim. Notwithstanding the provisions of this Section 9.06,
neither Borrower nor the Holders shall be required to contribute any amount in
excess of the amount by which the total price at which the securities were
offered to the public exceeds the amount of any damages which Borrower or each
such Holder has otherwise been required to pay by reason of such Violation. No
person guilty of fraudulent misrepresentations (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who is
not guilty of such fraudulent misrepresentation.
SECTION 9.07 REPORTS UNDER THE 1934 ACT.
So long as Borrower has a class of securities registered pursuant to
Section 12 of the 1934 Act, with a view to making available to the Holders the
benefits of Rule 144 promulgated under the 1933 Act ("Rule 144") and any other
rule or regulation of the SEC that may at any time permit a Holder to sell
securities of Borrower to the public without registration or pursuant to a
registration on Form S-3, if applicable, Borrower agrees to use its reasonable
efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
(b) File with the SEC, in a timely manner, all reports and other documents
required of Borrower under the 1933 Act and the 1934 Act;
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(c) Use its best efforts to include all Common Stock covered by such
registration statement on NASDAQ if the Common Stock is then quoted on NASDAQ;
or list all Common Stock covered by such registration statement on such
securities exchange or bulletin board on which any of the Common Stock is then
listed; or, if the Common Stock is not then quoted on NASDAQ or listed on any
national securities exchange or bulletin board, use its best efforts to have
such Common Stock covered by such registration statement quoted on NASDAQ or, at
the option of Borrower, listed on a national securities exchange or bulletin
board if eligible for listing; and
(d) Furnish to any Holder, so long as the Holder owns any Registrable
Securities, (i) forthwith upon request, a copy of the most recent annual or
quarterly report of Borrower and such other SEC reports and documents so filed
by Borrower, and (ii) such other information (but not any opinion of counsel) as
may be reasonably requested by any Holder seeking to avail himself of any rule
or regulation of the SEC which permits the selling of any such securities
without registration or pursuant to such form.
SECTION 9.08 ASSIGNMENT OF REGISTRATION RIGHTS.
Subject to the terms and conditions of this Agreement, and the Debentures,
the right to cause Borrower to register Registrable Securities pursuant to this
Agreement may be assigned by Holder to any transferee or assignee of such
securities; provided that (i) such transferee or assignee is a transferee or
assignee of at least ten percent (10%) of the Registrable Securities, (ii) such
transferee or assignee is not a Person who is a direct, material competitor of
Borrower, (iii) Borrower is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; and, (iv) such assignment shall be effective only if,
immediately following such transfer, the further disposition of such securities
by the transferee or assignee is restricted under the 1933 Act; it being the
intention that, so long as Holder holds any Registrable Securities hereunder,
either Holder or its transferee or assignee of at least ten percent may exercise
the piggy-back registration rights hereunder. Other than as set forth above, the
parties hereto hereby agree that the registration rights hereunder shall not be
transferable or assigned and any contemplated transfer or assignment in
contravention of this Agreement shall be deemed null and void and of no effect
whatsoever.
SECTION 9.09 OTHER MATTERS.
(a) Each Holder of Registrable Securities hereby agrees by acquisition of
such Registrable Securities that, with respect to each offering of the
Registrable Securities, whether each Holder is offering such Registrable
Securities in an underwritten or nonunderwritten offering, such Holder will
comply with Regulation M or such other or additional anti-manipulation rules
then in effect until such offering has been completed, and in respect of any
nonunderwritten offering, in writing will inform Borrower, any other Holders who
are selling shareholders, and any national securities exchange upon which the
securities of Borrower are listed, that the Registrable Securities have been
sold and will, upon Borrower's request, furnish the distribution list of the
Registrable Securities. In addition, upon the request of Borrower, each Holder
will supply Borrower with such documents and information as Borrower may
reasonably request with respect to the subject matter set forth and described in
this Section 9.09.
(b) Each Holder of Registrable Securities hereby agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from Borrower of
the happening of any event which makes any statement made in the registration
statement, the prospectus or any document incorporated therein by reference,
untrue in any material respect or which requires the making of any changes in
the registration statement, the prospectus or any document incorporated therein
by reference, in order to make the statements therein not misleading in any
material respect, such Holder will forthwith discontinue disposition of
39
Registrable Securities under the prospectus related to the applicable
registration statement until such Holder's receipt of the copies of the
supplemented or amended prospectus, or until it is advised in writing by
Borrower that the use of the prospectus may be resumed, and has received copies
of any additional or supplemental filings which are incorporated by reference in
the prospectus.
ARTICLE X. - BOARD OF DIRECTORS
SECTION 10.01 BOARD REPRESENTATION OR ATTENDANCE BY OBSERVER.
(a) Borrower herewith agrees that Agent shall have the right, from time to
time, to designate a nominee to serve as a member of the Board of Directors of
Borrower. In the event of a monetary Default under Section 8.01 hereof, the
Agent shall have the right to designate one (1) additional nominee to serve as a
member of the Board of Directors of Borrower. Borrower will nominate and use its
best efforts to secure the election of such designee(s) as Director(s) of
Borrower. During such time as Agent has not exercised such rights, the Agent
shall have the right to designate an observer, who shall be entitled to attend
and participate (but not vote) in all meetings of the Board of Directors and to
receive all notices, reports, information, correspondence and communications
sent by Borrower to members of the Board of Directors. All costs and expenses
incurred by any such designated Director or observer, or by Agent on behalf of
such Director or observer, shall be promptly reimbursed by Borrower.
(b) Any such Director or observer shall, if requested to do so, absent
himself or herself from the meeting in the event of, and so long as, the
Directors are considering and acting on matters pertaining to any rights or
obligations of Borrower or the Lender under this Agreement, the Debentures, the
other Loan Documents or the Subsidiary Documents.
SECTION 10.02 LIMITATION OF AUTHORITY OF PERSONS DESIGNATED AS A DIRECTOR
NOMINEE.
It is provided and agreed that the actions and advice of any person while
serving pursuant to Section 10.01 as a Director or an observer at meetings of
the Board of Directors shall be construed to be the actions and advice of that
person alone and not be construed as actions of the Lender as to any notice of
requirements or rights of Lender under this Agreement, the Debentures, the other
Loan Documents or the Subsidiary Documents nor as actions of the Lender to
approve modifications, consents, amendments or waivers thereof; and all such
actions or notices shall be deemed actions or notices of the Lender only when
duly provided in writing and given in accordance with the provisions of this
Agreement.
SECTION 10.03 NONLIABILITY OF THE LENDER.
The relationship between Borrower and the Lender is, and shall at all times
remain, solely that of borrower and lender. The Lender neither undertakes nor
assumes any responsibility or duty to Borrower to review, inspect, supervise,
pass judgment upon or inform Borrower of any matter in connection with any phase
of Borrower's business, operations or condition, financial or otherwise.
Borrower shall rely entirely upon its own judgment with respect to such matters,
and any review, inspection, supervision, exercise of judgment or information
supplied to Borrower by the Lender, or any representative or agent of the
Lender, in connection with any such matter is for the protection of the Lender,
and neither Borrower nor any third party is entitled to rely thereon.
40
ARTICLE XI. - AGENCY PROVISIONS
SECTION 11.01 THE LENDER'S REPRESENTATIONS AND WARRANTIES TO AGENT.
Lender represents and warrants to the Agent:
(a) It is legal for it to make the Loan, and the making of such Loan
complies with laws applicable to it;
(b) It has made, its own independent review (including any desired
investigations and inspections) of, and it accepts and approves, the Loan, this
Agreement and the associated documents and all other matters and information
which it deems pertinent. It acknowledges that the Loan Documents and the
Subsidiary Documents are a complete statement of all understandings and
respective rights and obligations between and among the Lender, Subsidiaries and
Borrower regarding the Loan;
(c) Lender has not made any express or implied representation or warranty
to any other lender with respect to this transaction;
(d) It will, independently and without reliance upon any other lender, and
based upon such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and will make such
investigation as it deems necessary to inform itself as to the Loan, the Loan
Documents, the Subsidiary Documents, Borrower and any collateral; provided,
however, nothing contained in this Section shall limit Agent's obligation to
provide the Lender with the information and documents Agent is expressly
required to deliver under this Agreement;
(f) The Loan Documents executed by the Lender are valid and binding
obligations of the Lender.
SECTION 11.02 WAIVER OF LOAN PROVISIONS OR INTEREST OR PRINCIPAL PAYMENTS.
A waiver of an interest or principal payment, a declaration of a Default or
any amendment, modification or waiver of this Agreement or the Debentures will
require the consent of the Lender.
SECTION 11.03 AGENCY.
(a) Lender hereby designates and appoints Renaissance Group as its Agent
under this Agreement and authorizes the Agent to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and the
Subsidiary Documents and to exercise such powers as are set forth herein or
therein, together with such other powers as are reasonably incidental thereto.
In performing its functions and duties under this Agreement, the Agent shall act
solely as agent of the Lender and does not assume, and shall not be deemed to
have assumed, any obligation toward or relationship of agency or trust with or
for Borrower. The Agent may perform any of its duties under this Agreement, or
under the other Loan Documents or the Subsidiary Documents, by or through its
agents or employees.
(b) The Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement, in the other Loan Documents or in the
Subsidiary Documents. Except as expressly provided herein, the duties of the
41
Agent shall be mechanical and administrative in nature. The Agent shall have,
and may use, its sole discretion with respect to exercising or refraining from
taking any actions which the Agent is expressly entitled to take or assert under
this Agreement, the other Loan Documents and the Subsidiary Documents. The Agent
shall not have, by reason of this Agreement, a fiduciary relationship with
respect to the Lender. Nothing in this Agreement, any of the other Loan
Documents or any of the Subsidiary Documents, express or implied, is intended to
or shall be construed to impose upon the Agent any obligations in respect of
this Agreement, any of the other Loan Documents or any of the Subsidiary
Documents except as expressly set forth herein or therein. If the Agent seeks
the consent or approval of the Lender to the taking or refraining from taking
any action hereunder, the Agent shall send notice thereof to the Lender. The
Agent may employ agents, co-agents and attorneys-in-fact and shall not be
responsible to the Lender or Borrower, except as to money or securities received
by it or its authorized agents, for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care.
(c) Neither the Agent nor any of its officers, directors, employees or
agents shall be liable to the Lender for any action taken or omitted by it or
any of them under this Agreement, any of the other Loan Documents or any of the
Subsidiary Documents, or in connection herewith or therewith, except that no
Person shall be relieved of any liability imposed by law, intentional tort or
gross negligence. The Agent shall not be responsible to the Lender for any
recitals, statements, representations or warranties contained in this Agreement
or for the execution, effectiveness, genuineness, validity, enforceability,
collectability or sufficiency of this Agreement, any of the other Loan Documents
or any of the Subsidiary Documents or any of the transactions contemplated
thereby, or for the financial condition of Borrower or the Subsidiaries. The
Agent shall not be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement, any of the other Loan Documents or any of the Subsidiary Documents or
the financial condition of Borrower, or the existence or possible existence of
any Default or Event of Default. Agent shall give the Lender notice of any
Default or Event of Default of which Agent has actual notice. The Agent may, at
any time, request instructions from the Lender with respect to any actions or
approvals which, by the terms of this Agreement, of any of the other Loan
Documents or of any of the Subsidiary Documents, the Agent is permitted or
required to take or to grant, and if such instructions are promptly requested,
the Agent shall be absolutely entitled to refrain from taking any action or to
withhold any approval and shall not be under any liability whatsoever to any
Person for refraining from any action or withholding any approval under any of
the Loan Documents or any of the Subsidiary Documents until it shall have
received such instructions from the Lender. Without limiting the foregoing, the
Lender shall not have any right of action whatsoever against the Agent as a
result of the Agent acting or refraining from acting under this Agreement, any
of the other Loan Documents or any of the Subsidiary Documents in accordance
with the instructions of the Lender.
(d) The Agent shall be entitled to rely upon any written notices,
statements, certificates, orders or other documents or any telephone message
believed by it, in good faith, to be genuine and correct and to have been
signed, sent or made by the proper Person, and with respect to all matters
pertaining to this Agreement, any of the other Loan Documents or any of the
Subsidiary Documents and its duties hereunder or thereunder, upon advice of
counsel selected by it.
(e) To the extent that the Agent is not reimbursed and indemnified by
Borrower, the Lender will reimburse and indemnify the Agent for and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, advances or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against the
Agent in any way relating to or arising out of this Agreement, any of the other
Loan Documents, or any of the Subsidiary Documents or any action taken or
omitted by the Agent under this Agreement, any of the other Loan Documents or
42
any of the Subsidiary Documents. The obligations of the Lender under this
indemnification provision shall survive the payment in full of the Loans and the
termination of this Agreement.
ARTICLE XII. - MISCELLANEOUS
SECTION 12.01 STRICT COMPLIANCE.
Any waiver by the Lender of any breach or any term or condition of this
Agreement, the other Loan Documents or the Subsidiary Documents shall not be
deemed a waiver of any other breach, nor shall any failure to enforce any
provision of this Agreement, the other Loan Documents or the Subsidiary
Documents operate as a waiver of such provision or of any other provision, nor
constitute nor be deemed a waiver or release of Borrower for anything arising
out of, connected with or based upon this Agreement, the other Loan Documents or
the Subsidiary Documents.
SECTION 12.02 WAIVERS AND MODIFICATIONS.
All modifications, consents, amendments or waivers (herein "Waivers") of
any provision of this Agreement, the Debentures, any other Loan Documents or any
Subsidiary Documents, and any consent to departure therefrom, shall be effective
only if the same shall be in writing by the Lender and then shall be effective
only in the specific instance and for the purpose for which given. No notice or
demand given, in any case, shall constitute a waiver of the right to take other
action in the same, similar or other instances without such notice or demand. No
failure to exercise, and no delay in exercising, on the part of Agent or Lender,
any right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right. The rights of Lender hereunder, under the other
Loan Documents and under the Subsidiary Documents shall be in addition to all
other rights provided by law.
SECTION 12.03 LIMITATION ON LIABILITY.
The duties, warranties, covenants and promises arising from the Loan
Documents and the Subsidiary Documents of Lender or Agent to Borrower shall be
several and not joint, and Borrower shall have no legal or equitable cause of
action against Lender or Agent (or their successors or assigns) for any
liability of the other (or its successors or assigns).
SECTION 12.04 CHOICE OF FORUM; CONSENT TO SERVICE OF PROCESS AND JURISDICTION.
Any suit, action or proceeding against Borrower with respect to this
Agreement or the Debentures or any judgment entered by any court in respect
thereof, may be brought in the courts of the State of Texas, County of Dallas,
or in the United States federal courts located in the State of Texas, as Lender
or Agent, in its sole discretion, may elect, and Borrower hereby submits to the
nonexclusive jurisdiction of such courts for the purpose of any such suit,
action or proceeding. Borrower hereby agrees that service of all writs, process
and summonses in any such suit, action or proceeding brought in the State of
Texas may be brought upon, and Borrower hereby irrevocably appoints, CT
Corporation System, Dallas, Texas, as its true and lawful attorney-in-fact in
the name, place and stead of Borrower to accept such service of any and all such
writs, process and summonses. Borrower hereby irrevocably waives any objections
which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any Debentures
43
brought in such courts, and hereby further irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in
any inconvenient forum.
SECTION 12.05 INVALID PROVISIONS.
If any provision of any Loan Document is held to be illegal, invalid or
unenforceable under present or future laws during the term of this Agreement,
such provision shall be fully severable; such Loan Document shall be construed
and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of such Loan Document; and the remaining provisions of such
Loan Document shall remain in full force and effect and shall not be affected by
the illegal, invalid or unenforceable provision or by its severance from such
Loan Document. Furthermore, in lieu of each such illegal, invalid or
unenforceable provision shall be added as part of such Loan Document a provision
mutually agreeable to Borrower and Lender as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid and
enforceable. In the event Borrower and Lender are unable to agree upon a
provision to be added to the Loan Document within a period of ten (10) business
days after a provision of the Loan Document is held to be illegal, invalid or
unenforceable, then a provision acceptable to independent arbitrators, such to
be selected in accordance with the provisions of the American Arbitration
Association, as similar in terms to the illegal, invalid or unenforceable
provision as is possible and be legal, valid and enforceable shall be added
automatically to such Loan Document. In either case, the effective date of the
added provision shall be the date upon which the prior provision was held to be
illegal, invalid or unenforceable.
SECTION 12.06 MAXIMUM INTEREST RATE.
(a) Regardless of any provision contained in any of the Loan Documents,
Lender shall never be entitled to receive, collect or apply as interest on the
Debentures any amount in excess of interest calculated at the Maximum Rate, and,
in the event that Lender ever receives, collects or applies as interest any such
excess, the amount which would be excessive interest shall be deemed to be a
partial prepayment of principal and treated hereunder as such; and, if the
principal amount of the Obligation is paid in full, any remaining excess shall
forthwith be paid to Borrower. In determining whether or not the interest paid
or payable under any specific contingency exceeds interest calculated at the
Maximum Rate, Borrower and Lender shall, to the maximum extent permitted under
applicable law, (i) characterize any nonprincipal payment as an expense, fee or
premium rather than as interest, (ii) exclude voluntary prepayments and the
effects thereof, and (iii) amortize, pro rate, allocate and spread, in equal
parts, the total amount of interest throughout the entire contemplated term of
the Debentures; provided that, if the Debentures is paid and performed in full
prior to the end of the full contemplated term thereof, and if the interest
received for the actual period of existence thereof exceeds interest calculated
at the Maximum Rate, Lender shall refund to Borrower the amount of such excess
or credit the amount of such excess against the principal amount of the
Debentures and, in such event, Lender shall not be subject to any penalties
provided by any laws for contracting for, charging, taking, reserving or
receiving interest in excess of interest calculated at the Maximum Rate.
(b) "Maximum Rate" shall mean, on any day, the highest nonusurious rate of
interest permitted by applicable law on such day that, at any time or from time
to time, may be contracted for, taken, reserved, charged or received on the
Indebtedness evidenced by the Debentures under the laws which are presently in
effect of the United States of America and the laws of any other jurisdiction
which are or may be applicable to the holder of the Debentures and such
Indebtedness or, to the extent permitted by law, under such applicable laws of
the United States of America and the laws of any other jurisdiction which are or
may be applicable to the holder of the Debentures and which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
44
SECTION 12.07 PARTICIPATIONS AND ASSIGNMENTS OF THE DEBENTURES.
(a) Lender and the Agent shall have the right to enter into a participation
agreement with any other party or its Affiliates with respect to the Debentures,
or to sell all or any part of the Debentures, but any participation or sale
shall not affect the rights and duties of Lender or the Agent hereunder
vis-a-vis Borrower. In the event that all or any portion of the Loan shall be at
any time, assigned, transferred or conveyed to other parties, any action,
consent or waiver (except for compromise or extension of maturity), to be given
or taken by Lender or the Agent hereunder (herein "Action"), shall be such
action as taken by the holder of a majority in amount of the Principal Amount of
the Debentures then outstanding, as such holder are recorded on the books of
Borrower and represented by the Agent as described in subsection (b) below.
(b) Assignment or sale of the Debentures shall be effective on the books of
Borrower only upon (i) endorsement of the Debentures, or part thereof, to the
proposed new holder, along with a current notation of the amount of payments or
installments received and net Principal Amount yet unfunded or unpaid, and
presentment of such Debentures to Borrower for issue of a replacement
Debentures, in the name of the new holder; and (ii) delivery of an opinion of
counsel, reasonably satisfactory to Borrower, that transfer shall not require
registration or qualification under applicable state or federal securities laws.
(c) The Debentures may be sold, transferred or assigned only to Affiliates
of Lender or permitted transferees in multiples of One Hundred Thousand Dollars
($100,000).
SECTION 12.08 CONFIDENTIALITY.
(a) All financial reports or information that are furnished to Lender or
Holders, or their respective director designees or other representatives,
pursuant to this Agreement or pursuant to the Debentures, the other Loan
Documents or the Subsidiary Documents shall be treated as confidential unless
and to the extent that such information has been otherwise disclosed by
Borrower, but nothing herein contained shall limit or impair the Lender's or
Holders' right to disclose such reports to any appropriate Governmental
Authority, or to use such information to the extent pertinent to an evaluation
of the Obligation, or to enforce compliance with the terms and conditions of
this Agreement, or to take any lawful action which the Lender or Holders deem
necessary to protect their respective interests under this Agreement.
(b) Lender and the Agent shall use their reasonable efforts to protect and
preserve the confidentiality of such information, except for such disclosure as
shall be required for compliance by Lender or its respective director designees
with SEC reporting requirements or any administrative or judicial proceeding or
otherwise as a matter of law. The provisions of Section 5.01 notwithstanding,
Borrower may refuse to provide information as required pursuant thereto to an
assignee or successor in interest to Lender, unless and until such assignee or
successor shall have executed an agreement to maintain the confidentiality of
the information as provided herein.
SECTION 12.09 BINDING EFFECT.
The Loan Documents shall be binding upon and inure to the benefit of
Borrower and Lender and their respective successors, assigns and legal
representatives; provided, however, that Borrower may not, without the prior
written consent of Lender, assign any rights, powers, duties or obligations
thereunder.
45
SECTION 12.10 NO THIRD PARTY BENEFICIARY.
The parties do not intend the benefits of this Agreement to inure to any
third party, nor shall this Agreement be construed to make or render Lender
liable to any materialman, supplier, contractor, subcontractor, purchaser or
lessee of any property owned by Borrower, or for debts or claims accruing to any
such persons against Borrower. Notwithstanding anything contained herein, in the
Debentures, in any other Loan Document or in any Subsidiary Document, no conduct
by any or all of the parties hereto, before or after signing this Agreement, any
other Loan Document nor any Subsidiary Document, shall be construed as creating
any right, claim or cause of action against Lender, or any of its respective
officers, directors, agents or employees, in favor of any materialman, supplier,
contractor, subcontractor, purchaser or lessee of any property owned by
Borrower, nor to any other person or entity other than Borrower.
SECTION 12.11 ENTIRETY.
This Agreement and the Debentures, the other Loan Documents, the Subsidiary
Documents and any other documents or instruments issued or entered into pursuant
hereto and thereto contain the entire agreement between the parties and
supersede all prior agreements and understandings, written or oral (if any),
relating to the subject matter hereof and thereof.
SECTION 12.12 HEADINGS.
Section headings are for convenience of reference only and, except as a
means of identification of reference, shall in no way affect the interpretation
of this Agreement.
SECTION 12.13 SURVIVAL.
All representations and warranties made by Borrower herein shall survive
delivery of the Debentures and the making of the Loans.
SECTION 12.14 MULTIPLE COUNTERPARTS.
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same agreement, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
SECTION 12.15 KNOWLEDGE OF BORROWER.
As used herein or in any of the other Loan Documents, all references to
"Borrower's best knowledge" or "to the knowledge of Borrower" or words or
phrases of similar import (whether or not modified by any additional phrase)
shall in each case mean the knowledge of Borrower, the Subsidiaries or their
respective executive officers, directors and principal shareholders.
SECTION 12.16 NOTICES.
Any notices or other communications required or permitted to be given by
this Agreement or any other documents and instruments referred to herein must be
(i) given in writing and personally delivered, mailed by prepaid certified or
registered mail or sent by overnight service, such as FedEx, or (ii) made by
telex or facsimile transmission delivered or transmitted to the party to whom
46
such notice or communication is directed, with confirmation thereupon given in
writing and personally delivered or mailed by prepaid certified or registered
mail.
If to Borrower: Simtek Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Holme ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
1700 Lincoln, Suite 4100
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lender: Renaissance Capital Growth & Income Fund III, Inc.
c/o Renaissance Capital Group, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President and CEO
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Renaissance US Growth & Income Trust PLC
c/o Renaissance Capital Group, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President and CEO
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
BFSUS Special Opportunities Trust PLC
c/o Renaissance Capital Group, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President and CEO
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
48
with a copy to: ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Agent: Renaissance Capital Group, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President and CEO
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice delivered personally in the manner provided herein will be
deemed given to the party to whom it is directed upon the party's (or its
agent's) actual receipt. Any notice addressed and mailed in the manner provided
herein will be deemed given to the party to whom it is addressed at the close of
business, local time of the recipient, on the fourth business day after the day
it is placed in the mail, or, if earlier, the time of actual receipt.
SECTION 12.17 GOVERNING LAW.
THIS LOAN AGREEMENT HAS BEEN PREPARED, IS BEING EXECUTED AND DELIVERED, AND
IS INTENDED TO BE PERFORMED IN THE STATE OF TEXAS, AND THE SUBSTANTIVE LAWS OF
SUCH STATE AND THE APPLICABLE FEDERAL LAWS OF THE UNITED STATES OF AMERICA SHALL
GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THIS LOAN
AGREEMENT.
[Signature page follows.]
49
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
and year written above.
BORROWER:
SIMTEK CORPORATION
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Chief Executive Officer and President
LENDER:
BFSUS SPECIAL OPPORTUNITIES TRUST PLC
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Director
RENAISSANCE US GROWTH & INCOME TRUST PLC
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Director
RENAISSANCE CAPITAL GROWTH & INCOME FUND III, INC.
By: Renaissance Capital Group, Inc.,
Investment Adviser
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President and CEO
AGENT:
RENAISSANCE CAPITAL GROUP, INC.
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President and CEO
50
SCHEDULES TO CONVERTIBLE LOAN AGREEMENT
Schedule 2.08 Fees and Expenses
Schedule 2.09 Finder's Fees
Schedule 4.05 Permitted Liens
Schedule 4.06 Financial Condition
Schedule 4.08 Material Agreements
Schedule 4.09 Litigation
Schedule 4.10 Taxes
Schedule 4.11 Capitalization
Schedule 4.13 Employee Matters
Schedule 4.14 Employee Benefit Plans
Schedule 4.15 Permits
Schedule 4.16 Licenses and Permits
Schedule 4.17 Contracts
Schedule 4.19 Insider Agreements not listed on SEC Filings
Schedule 4.20 Subsidiaries
Schedule 4.21 Casualties
Schedule 4.24 Corporate Names
Schedule 4.25 Insurance
Schedule 4.27 Real Property
Schedule 4.28 Environmental Matters
Schedule 5.18 Ownership of Subsidiaries
Schedule 6.05 Transactions with Affiliates
Schedule 7.01 Financial Ratios
SCHEDULE 2.08 - BROKERS
None
SCHEDULE 4.03 - NO CONFLICTS OR CONSENT
Q-DOT, Inc., the Borrower's sole Subsidiary, has entered into, and/or is
performing services pursuant to, various government contracts in the ordinary
course of its business. Such contracts impose various restrictions on Borrower
and such Subsidiary, including in some cases requiring security clearances,
confidential treatment of certain information and restrictions on who may serve
as management of such Subsidiary. It is anticipated that such Subsidiary will
continue to enter into similar agreements and continue to be subject to such
restrictions. Notwithstanding anything to the contrary in any of the Loan
Documents, Borrower and Subsidiary express no representation or warranty as to
Lender's or Agent's rights relating to any such contracts.
SCHEDULE 4.05 - LIENS
4.05(a) IBM Credit Corp Acct # QLO 736697--Software Lease (previously provided
to Lender)
4.05(b) GE Capital Acct # 355371001 (Originally Fidelity Capital)--Software
Lease (previously provided to Lender)
4.05(c) Avaya Financial Services Acct # X862120 (Originally Lucent Product
Finance--Equipment Lease (previously provided to Lender)
4.05(d) Cadence Design Systems Acct # SLA-02SIMT0327--Software Lease
(previously provided to Lender)
4.05(e) Bank One Acct # 5758668455--Line of Credit (previously provided to
Lender)
SCHEDULE 4.06 - FINANCIAL CONDITION
Since December 31, 2001, there have not been (i) any Material Adverse Change;
(ii) any Dividend declared or paid or distribution made on the capital stock of
Borrower or any capital stock thereof redeemed or repurchased; (iii) any
incurrence of long-term debt by Borrower; (iv) any salary, bonus or compensation
increases to any officers, key employees or agents of Borrower, other than in
the ordinary course of business and consistent with past practice; or (v) any
other material transaction entered into by Borrower, except in the ordinary
course of business and consistent with past practice.
SCHEDULE 4.08 - MATERIAL AGREEMENTS
None
SCHEDULE 4.09 - LITIGATION
None
SCHEDULE 4.10 - TAXES
None
SCHEDULE 4.11 - CAPITALIZATION
4.11(a) Statement of Shareholders' Equity (previously provided to Lender)
4.11(b) Simtek 1994 Non-Qualified Stock Option Table and related share
reservations and option issuances (previously provided to Lender)
4.11(c) Q-DOT Stock Option Plan Adopted by Simtek and related share
reservations and option issuances (previously provided to Lender)
4.11(d) 3,095,000 shares of common stock reserved for issuance pursuant to
exercise of non-qualified stock options which have not yet been issued
SCHEDULE 4.13 - EMPLOYMENT
None
SCHEDULE 4.14 - EMPLOYEE BENEFIT PLANS
None
SCHEDULE 4.15 - COMPLIANCE WITH LAWS
None
SCHEDULE 4.16 - LICENSE AND PERMITS
4.16(a) Colorado Springs Sales Tax Permit - Simtek
4.16(b) Colorado Springs Sales Tax Permit - Q-DOT
4.16(c) State of Colo/El Paso County Sales Tax Permit - Simtek
4.16(d) State of Colo/El Paso County Sales Tax Permit - Q-DOT
SCHEDULE 4.17 - CONTRACTS
4.17(a) Zentrum Mikroelektronik Dresden, GmbH--Active
4.17(b) Baja Properties--Active
4.17(c) Q-DOT Office Lease--Active
4.17(d) Amkor Technology; Technology Development, License and Product Agreement
--Active
4.17(e) Amkor Technology Manufacturing Services Agreement--Active
4.17(f) GEC Plessey License Agreement--Inactive since 1992
4.17(g) Nippon Steel License Agreement--Inactive since 1992
4.17(h) The following contracts of Q-DOT, Inc.:
ID# Title Date signed Contractor
--- ----- ----------- ----------
5117 Bandpass Delta-Sigma ADC 9/29/1999 US Army & Missile Aviation
Command
5119 Superdance & CC SiGe 3/1/2020 USC/ISI
5120 Low Phase Noise Miniature Oscillator (MINO) 9/13/2000 US Army & Missile Aviation
Command
5122 SiGe Direct Digital Synthesizer System 6/6/2001 US Army Research Lab
5123 SiGe MODFET Circuit Applications 1/28/2002 SPAWAR Systems Center
5124 Multi-Channel, Wideband, 4-40GHz Tuner 2/6/2002 US Army CECOM Acquisition
Center
5125 High Speed Sub-sampler development 3/18/2002 INSYTE
5126 Miniaturized Low Jitter Clock for Digital Receivers 4/22/2002 RF Monolithics
5127 Flight Test Receiver and Decoder for Universal 5/10/2002 Air Force Research Lab
Flight Termination System
5128 Bandpass Delta-Sigma Analog to Digital Converter 5/20/2002 Naval Surface Warfare Center
for Advanced Digital Array Radar (DAR)
SCHEDULE 4.19 - INSIDER AGREEMENTS NOT LISTED ON SEC FILINGS
None
SCHEDULE 4.20 - SUBSIDIARIES
Borrower owns 100% of the issued and outstanding stock of Q-DOT, Inc. of ▇▇▇▇
▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Borrower also owns a 1% membership interest in QD Acoustics, LLC and views such
membership interest as immaterial to Borrower's operations.
SCHEDULE 4.21 - CASUALTIES
None
SCHEDULE 4.24 - CORPORATE NAMES
None
SCHEDULE 4.25 - INSURANCE
Copies of all responsive insurance polices were provided to Lender by Borrower
on or about ____, 2002.
Certificate of Workers Compensation Insurance
Certificate of Property, General Liability, Automobile Liability, Excess
Liability for all Domestic Locations
Certificate of Property, General Liability, Automobile Liability, Excess
Liability for all Foreign locations
Endorsement showing Marine Cargo Insurance
Policy # NY02DOL858466NC for Directors and Officers Liability Insurance
SCHEDULE 4.27 - REAL PROPERTY
Neither Borrower nor its Subsidiary owns any fee simple interest in real
property; both, however, are lessees of real property as described in Schedule
4.17.
SCHEDULE 4.28 - ENVIRONMENTAL
None
SCHEDULE 5.18 - OWNERSHIP OF SUBSIDIARIES
Borrower owns 100% of the issued and outstanding stock of Q-DOT, Inc. of ▇▇▇▇
▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Borrower also owns a 1% membership interest in QD Acoustics, LLC and does not
expect that such membership interest will be material to Borrower's business.
SCHEDULE 6.01 - SCHEDULE OF LIMITATION ON INDEBTEDNESS
SCHEDULE 6.05 - TRANSACTIONS WITH AFFILIATES
None
SCHEDULE 7.01 FINANCIAL RATIOS
(a) Current Ratio. The Borrower will not permit its Current Ratio to be less
than 1:1 as of the end of each fiscal quarter.
(b) Interest Coverage Ratio. The Borrower will not permit its Interest Coverage
Ratio to be less than 2:1, with such ratio to be calculated quarterly on a
cumulative basis for the initial four (4) fiscal quarters of Borrower after the
date hereof and thereafter to be calculated quarterly for the four (4) fiscal
quarters of Borrower immediately preceding the date of determination.
(c) Total Debt to Equity Ratio. The Borrower will not permit the ratio of its
total Indebtedness to stockholders' equity to be less than 1:1 as of the end of
each fiscal quarter.