EXHIBIT 10.80
THIS NOTE AND THE RIGHTS OF THE INITIAL AND ANY SUBSEQUENT SUBORDINATED
NOTEHOLDER HEREUNDER ARE SUBJECT AND SUBORDINATE TO CERTAIN "SENIOR
INDEBTEDNESS" ON THE TERMS SET FORTH HEREIN. UPON THE FAILURE OF MAKER TO MAKE A
PAYMENT HEREUNDER, THE AMOUNT IN DEFAULT SHALL BE PAYABLE AS SET FORTH HEREIN.
AMENDED AND RESTATED SUBORDINATED PROMISSORY NOTE
$68,670,470.00 March 20, 2002
FOR VALUE RECEIVED, ▇▇▇▇▇▇▇ NAVIGATION LIMITED, a California corporation,
("Maker"), hereby agrees to pay to SPECTRA PHYSICS HOLDINGS USA, INC., a
Delaware corporation, or assigns (collectively the "Holder") the principal sum
of Sixty-Eight Million Six Hundred Seventy Thousand Four Hundred Seventy Dollars
($68,670,470.00) (the "Principal Sum") in accordance with the provisions of this
Note, together with interest thereon, or on so much thereof as shall from time
to time remain unpaid, at the rate of ten and forty-one one-hundredths percent
(10.41%) per annum, subject to adjustment as provided herein.
Defined terms not defined herein shall have the meaning set forth in the
Stock and Asset Purchase Agreement dated May 11, 2000 by and among the Maker and
each of the Holder, Spectra Precision AB and Spectra Precision Europe Holdings,
BV (the "Purchase Agreement").
Section 1. Schedule of Principal Payments. All outstanding amounts of
principal and interest hereunder shall be paid in full no later than July 14,
2004.
Section 2. Payment of Interest.
2.1 General Interest Rate. Interest on any sums due shall accrue at
the rate of ten and forty-one one-hundredths percent (10.41%) per annum.
Any payment of principal or interest not paid when due will accrue at a
rate (the "Default Interest Rate") equal to the rate of interest otherwise
applicable to such amounts plus four percent (4%) per annum.
2.2 Calculation of Interest. Interest shall be calculated on the basis
of a year of 360 days comprised of 12 thirty-day months.
Section 3. Method of Payment. Principal, interest, and all other sums
payable under this Note shall be paid in lawful money of the United States in
immediately available funds, free and clear of, and without deduction or offset
for, any present or future taxes, levies, imposts, charges, withholdings, or
liabilities with respect thereto, and free and clear of any and all other
defenses, offsets, claims, counterclaims, credits or deductions of any kind. All
payments of the Principal Sum and any interest thereon shall be made in lawful
tender of the United States of America at the notice address of the Holder set
out below, or at such other place as may be designated by the Holder hereof in
accordance with this Note.
Section 4. Prepayment.
4.1 Optional Prepayment. The Maker shall have the right to prepay the
whole or any part of the unpaid balance of the Principal Sum and accrued
interest at any time and from time to time without penalty.
4.2 Mandatory Prepayment. Maker shall pay to Holder all of the Net
Proceeds of any offering of Qualifying Securities until the outstanding
Principal Sum and accrued interest is paid in full; provided that in the
event that the Maker shall have a ratio of total Debt (excluding the Note)
to EBITDA (as defined in Section 5.2) of greater than 3.0 to 1.0 at the
time of such offering, then Maker shall only be required to pay the Holder
fifty percent (50%) of the Net Proceeds of such offering; provided further
that in the event that any Holder of this Note shall have assigned this
Note in part, such prepayment shall be allocated among the Holder together
with
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any subsequent holder or holders on a pro rata basis. Such sums shall
be due within seven (7) days of receipt of the proceeds of the sale of any
Qualifying Security by Maker, or any Affiliate of Maker.
An offering of Qualifying Securities shall mean the sale for cash of
any equity securities or any other security convertible into an equity
security of the Maker or sold in conjunction with any security convertible
into equity securities of Maker or any Affiliate of Maker (including any
note and warrant offering structured to approximate the economic effect of
a convertible note offering or a unit transaction comprised of notes and
warrants to the extent of the warrant coverage). A "Qualifying Security"
shall not include (i) securities sold to any employee, director or
consultant of Maker or any Affiliate pursuant to a written stock option or
similar compensation plan, (ii) securities issued in connection with any
merger or other acquisition of any business, (iii) securities issued in any
joint venture or similar agreement, (iv) securities issued to any third
party in lieu of cash payment for services rendered to Maker or any
Affiliate of Maker, (v) securities issued upon any "cashless" exercise of
any option or warrant or securities issued upon the conversion of a
convertible note, or (vi) securities issued in the ordinary course of
business and not for the primary purpose of raising capital. "Net Proceeds"
shall mean the gross proceeds from the sale of such securities less: (1)
underwriting, brokerage and similar commissions or discounts, (2) legal and
accounting fees directly incurred in connection with such financing, (3)
registration and similar fees payable to federal and state securities
regulatory agencies in connection with such financing, and (4) printing and
roadshow costs associated with such financing.
4.3 Allocation of Payments. All payments made under this Note shall be
applied as follows: first, to the payment of interest on the Principal Sum
outstanding hereunder from time to time; second, to the payment of sums
payable by Maker to the holder of this Note under this Note other than on
account of principal and interest; and third, to the payment of principal.
Section 5. Subordination of Payment Obligations. Amounts payable hereunder
are subordinated to the prior payment in full of certain "Senior Indebtedness,"
all to the extent and on the terms set forth herein.
5.1 Subordination of Liabilities. The payment of the principal of,
interest on, and all other amounts owing in respect of, this Note and any
replacements, renewals or modifications thereof (the "Subordinated
Indebtedness") is hereby expressly subordinated, to the extent and in the
manner hereinafter set forth, to the prior payment in full in cash of all
Senior Indebtedness (as defined in Section 5.7 hereof), until the
Termination Date. Termination Date shall mean the date all commitments
under the Credit Agreement are terminated and all Senior Indebtedness has
been irrevocably paid in full in cash. The provisions of this Section 5
shall constitute a continuing offer to all persons who, in reliance upon
such provisions, become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are hereby made obligees hereunder
the same as if their names were written herein as such, and they and/or
each of them may proceed to enforce such provisions on the basis of the
terms of this Note as in effect on the date hereof. To the extent that the
provisions of this Section 5 conflict with, or are inconsistent with, the
other terms of this Note, the provisions of this Section 5 shall control
5.2. No Payments with Respect to Subordinated Indebtedness, etc.
(a) All Senior Indebtedness shall first be irrevocably paid in full in
cash, before any payment of any kind or character, whether in cash,
property, securities (other than equity securities subordinated to the
Senior Indebtedness and to all debt securities received by the holders of
the Senior Indebtedness in respect thereof to at least the same extent as
the Subordinated Indebtedness is subordinated to the Senior Indebtedness
hereby ("Junior Securities")) or otherwise, is made on account of the
Subordinated Indebtedness.
Notwithstanding the foregoing, the Maker shall be permitted to make
regularly scheduled annual payments of interest in respect of the Subordinated
Indebtedness; provided that at the time of such payment and after giving effect
to such payment, no default or event of default under the Senior Indebtedness
shall have occurred and be continuing.
In addition, on any date on or prior to the Termination Date (as defined in
Section 5.1 hereof) on which principal payments under the Subordinated
Indebtedness are due and payable, the Subordinated Indebtedness may be repaid in
whole or in part in accordance with the terms of this Note if:
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(i) immediately prior to the time of such payment, the Maker
shall have a ratio of total Debt (excluding the Note) to EBITDA for
the most recently ended four fiscal quarters of the Maker of less than
1.0 to 1.0,
(ii) after giving effect to such payment, (x) the Maker shall
have a ratio of total Debt (excluding the Note) to EBITDA for the most
recently ended four fiscal quarters of the Maker of less than 2.0 to
1.0 and (y) the Maker shall have cash and borrowing availability under
the Senior Indebtedness of at least $35,000,000, and
(iii) at the time of such payment and after giving effect to such
payment, no default or event of default under the Senior Indebtedness
shall have occurred and be continuing ((i), (ii) and (iii)
collectively, the "Payment Conditions").
For purposes hereof, the term "EBITDA" shall mean earnings before interest,
taxes, depreciation and amortization of the Maker as determined by the Maker in
accordance with U.S. generally accepted accounting principles applied on a
consistent basis, and the term "Debt" shall mean the Maker's obligations for
borrowed money, obligations which are evidenced by notes, acceptances, or other
similar instruments, capitalized lease obligations, hedging obligations,
obligations in respect of letters of credit, and any guaranties in respect of
the foregoing.
If the Payment Conditions are not satisfied as of any such date principal
payments are due hereunder, such payment date shall be extended for successive
quarters until the date such Payment Conditions are satisfied. Once all Payment
Conditions are satisfied, the Maker shall pay to the Holder all sums previously
due and payable but not paid as a result of the provisions of this Section 5;
provided that such payment does not violate any Payment Conditions.
Notwithstanding anything else contained in this Note to the contrary,
unless any default or event of default has occurred and is continuing with
respect to any Senior Indebtedness, the Subordinated Indebtedness shall be
prepaid in accordance with the provisions of Section 4.2 of this Note relating
to mandatory prepayment. In addition, the Subordinated Indebtedness may be
prepaid with the prior written consent of the "Required Lenders" of Senior
Indebtedness, which Required Lenders are defined in the Credit Agreement as
defined in Section 5.8 herein.
(b) Except as set forth in (a) above or in Section 4.2, until the
Termination Date, the Maker may not, directly or indirectly, make (and the
Holder shall not accept) any payment of any Subordinated Indebtedness and
may not acquire (and the Holder shall not sell to the Maker or any of its
subsidiaries) any Subordinated Indebtedness for cash or property. The
Holder hereby agrees that, prior to the Termination Date, or July 14, 2004,
whichever occurs first, except that such date shall be extended by a period
of 180 days if any administrative agent for the benefit of any holder of
Senior Indebtedness sends a notice to the Holder that a default or an event
of default under the Senior Indebtedness has occurred and is continuing, it
will not ▇▇▇ for, or otherwise take any action to enforce the obligations
of the Maker to pay, amounts owing in respect of this Note; provided that
upon the acceleration of all of the Senior Indebtedness, the Holder may
accelerate the Subordinated Indebtedness; and provided further that if the
acceleration of the Senior Indebtedness is rescinded, the acceleration of
the Subordinated Indebtedness shall be deemed to have been rescinded.
Nothing herein shall be deemed to prevent the payment by the Maker of
amounts then due and owing in respect of the Subordinated Indebtedness at
any time after the Termination Date or as set forth in subsection (a)
above.
(c) In the event that notwithstanding the provisions of the preceding
subsections (a) and (b) of this Section 5.2, the Maker shall make (or the
Holder shall accept) any payment on account of the Subordinated
Indebtedness at a time when such payment or acceptance is not permitted by
said subsection (a) or (b), such payment shall be held by the Holder, in
trust for the benefit of, and shall be paid forthwith over and delivered
to, the holders of Senior Indebtedness or their representative or the
trustee under any other agreement pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their
respective interests may appear, for application pro rata to the payment of
all Senior Indebtedness remaining unpaid to the extent necessary to
irrevocably pay all Senior Indebtedness in full in cash in accordance with
the terms of such Senior Indebtedness, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness.
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5.3. Subordination to Prior Payment of All Senior Indebtedness on
Dissolution, Liquidation or Reorganization of Maker. Upon any distribution
of assets of the Maker upon dissolution, winding up, liquidation or
reorganization of the Maker (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors
or otherwise):
(a) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full in cash of all Senior Indebtedness (including,
without limitation, post-petition interest at the rate (including the
default rate) provided in the Credit Agreement, whether or not such
post-petition interest is an allowed claim against the debtor in any
bankruptcy or similar proceeding) before the Holder is entitled to receive
any payment of any kind or character on account of the Subordinated
Indebtedness;
(b) any payment or distribution of assets of the Maker of any kind or
character, whether in cash, property or securities, to which the Holder
would be entitled except for the provisions hereof, shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or other trustee or agent, directly to the holders of Senior
Indebtedness or their representative or representatives, to the extent
necessary to make payment in full in cash of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of
this Section 5.3, any payment or distribution of assets of the Maker of any
kind or character, whether in cash, property or securities (other than
Junior Securities), shall be received by the Holder on account of
Subordinated Indebtedness before all Senior Indebtedness is paid in full in
cash, such payment or distribution shall be received and held in trust for
and shall be paid over to the holders of the Senior Indebtedness remaining
unpaid or unprovided for or their representative or representatives, for
application to the payment of such Senior Indebtedness until all such
Senior Indebtedness shall have been paid in full in cash, after giving
effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness.
Without in any way modifying the provisions hereof or affecting the
subordination effected hereby if the hereafter referenced notice is not given,
the Maker shall give prompt written notice to the Holder of any dissolution,
winding up, liquidation or reorganization of the Maker (whether in bankruptcy,
insolvency or receivership proceedings or upon assignment for the benefit of
creditors or otherwise).
The Holder agrees not to initiate or prosecute or encourage any other
person to initiate or prosecute any claim, action or other proceeding
challenging the enforceability of the Senior Indebtedness or any liens and
security interests securing the Senior Indebtedness. The Holder further agrees
to execute, verify, deliver and file any proofs of claim in respect of the
Subordinated Indebtedness requested by the holders of the Senior Indebtedness in
connection with any such proceeding and hereby irrevocably authorize, empower
and appoint each holder of the Senior Indebtedness their agent and
attorney-in-fact to (A) execute, verify, deliver and file such proofs of claim
upon the failure of the holders of the Subordinated Indebtedness promptly to do
so (and, in any event, prior to 15 days before the expiration of the time to
file any such proof) and (B) vote such claim upon the failure of the holders of
the Subordinated Indebtedness to do so prior to 15 days before the expiration of
the time to vote any such claim; provided the holders of the Senior Indebtedness
shall have no obligation to execute, verify, deliver, file and/or vote any such
proof of claim. In the event that the holders of the Senior Indebtedness vote
any claim in accordance with the authority granted hereby, the holders of the
Subordinated Indebtedness shall not be entitled to change or withdraw such vote.
The Senior Indebtedness shall continue to be treated as Senior Indebtedness and
the provisions of this Section 5 shall continue to govern the relative rights
and priorities of the holders of the Senior Indebtedness and the holders of the
Subordinated Indebtedness even if all or part of the Senior Indebtedness or the
security interests securing the Senior Indebtedness are subordinated, set aside,
avoided or disallowed in connection with any such Proceeding and this Section 5
shall be reinstated if at any time any payment of any of the Senior Indebtedness
is rescinded or must otherwise be returned by any holder of Senior Indebtedness
or any representative of such holder.
5.4. Subrogation. Subject to the prior irrevocable payment in full in
cash of all Senior Indebtedness, the Holder shall be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Maker applicable to the Senior Indebtedness
until all amounts owing hereunder shall
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be paid in full, and for the purpose of such subrogation no payments
or distributions to the holders of the Senior Indebtedness by or on behalf
of the Maker or by or on behalf of the Holder by virtue hereof which
otherwise would have been made to the Holder shall, as between the Maker,
its creditors other than the holders of Senior Indebtedness, and the
Holder, be deemed to be payment by the Maker to or on account of the Senior
Indebtedness, it being understood that the provisions hereof are and are
intended solely for the purpose of defining the relative rights of the
Holder, on the one hand, and the holders of the Senior Indebtedness, on the
other hand.
5.5. Obligation of the Maker Unconditional. Nothing contained herein
is intended to or shall impair, as between the Maker and the Holder, the
obligations of the Maker, which are absolute and unconditional, to pay to
the Holder the principal of and interest on this Note as well as all costs
associated with collection of sums due under this Note as and when the same
shall become due and payable in accordance with its terms, or is intended
to or shall affect the relative rights of the Holder and creditors of the
Maker other than the holders of the Senior Indebtedness, nor, except as
specifically provided herein, shall anything herein or therein prevent the
Holder from exercising all remedies otherwise permitted by applicable law
upon an Event of Default as provided for herein, subject to the rights, if
any, herein of the holders of Senior Indebtedness in respect of cash,
property, or securities of the Maker received upon the exercise of any such
remedy. Upon any distribution of assets of the Maker referred to herein,
the Holder shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, or a certificate of
the liquidating trustee or agent or other person making any distribution to
the Holder, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Indebtedness
and other indebtedness of the Maker, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or hereof.
5.6. Subordination Rights Not Impaired by Acts or Omissions of Maker
or the Maker or Holders of Senior Indebtedness. No right of any present or
future holders of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Maker or by any act or failure
to act by any such holder, or by any noncompliance by the Maker with the
terms and provisions of this Note, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The holders of
the Senior Indebtedness may, without in any way affecting the obligations
of the Holder with respect hereto, at any time or from time to time and in
their absolute discretion, change the manner, place or terms of payment of,
change or extend the time of payment of, or renew or alter, any Senior
Indebtedness or amend, modify or supplement any agreement or instrument
governing or evidencing such Senior Indebtedness or any other document
referred to therein, or exercise or refrain from exercising any other of
their rights under the Senior Indebtedness including, without limitation,
the waiver of default thereunder and the release of any collateral securing
such Senior Indebtedness, all without notice to or assent from the Holder.
Nothing in this Section 5.6 shall be deemed to modify or negate in any way
the limitations on the amount of Senior Indebtedness to which this Note is
subordinated as described in Section 5.8 herein.
5.7. Senior Indebtedness. The term "Senior Indebtedness" shall mean,
subject to Section 5.8, all Obligations (as defined below) of the Maker
under, or in connection with, the Credit Agreement, dated as of the Closing
Date, by and among the Maker, the lenders from time to time party thereto,
and ABN AMRO Bank NV, as Administrative Agent (as amended, modified,
supplemented, extended, restated, refinanced, replaced or refunded from
time to time, the "Credit Agreement") or under any related documentation
(including, without limitation, notes, security and pledge documentation,
guarantees, and interest rate hedging, swap or similar agreements) from
time to time executed in connection with the Credit Agreement (together
with the Credit Agreement, the "Senior Loan Documents"). As used herein,
the term "Obligations" shall mean any principal, interest, premium,
penalties, fees, expenses, indemnities and other liabilities and
obligations (including guaranties in respect thereof) payable under the
Senior Loan Documents (including interest accruing after the commencement
of any bankruptcy, insolvency, receivership or similar proceeding at the
rate provided for in the respective documentation, whether or not such
interest is an allowed claim against the debtor in any such proceeding).
5.8 Changes to Senior Indebtedness. The Holder agrees, with respect to
the Senior Indebtedness and any and all collateral therefor or guaranties
thereof, that the Maker and the holders of the Senior Indebtedness may
agree to modify the terms of any of the Senior Indebtedness from time to
time without the consent of the Holder, without incurring liability to the
Holder and without impairing or releasing the obligations of the Holder
under this Section 5, change the manner or place of payment or extend the
time of payment of or renew or
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alter any Senior Indebtedness, or amend, modify, or waive the
application of, in any manner, any agreement, note, guaranty or other
instrument evidencing or securing or otherwise relating the Senior
Indebtedness; provided that:
(a) the Senior Loan Documents shall not be amended or modified so as
to provide for an increase in the principal amount of loans which may be
incurred thereunder to an amount in excess of $200,000,000 (such
$200,000,000 constituting the "Maximum Amount"), and any principal amount
of such loans in excess of the Maximum Amount shall not constitute Senior
Indebtedness hereunder; and
(b) to the extent that the Senior Loan Documents are amended or
modified so as to provide for a prepayment premium (excluding customary
breakage costs) in excess of three percent (3%) of the amount prepaid, then
such excess premium shall not constitute Senior Indebtedness hereunder.
Section 6. No Waiver. No failure or delay by the Holder hereof to insist
upon the strict performance of any term, provision, or agreement of this Note,
or to exercise any right, power or remedy consequent upon a breach thereof,
shall constitute a waiver of any such term, provision or agreement or of any
such breach, or preclude the Holder from exercising any such right, power or
remedy at any later time or times. By accepting payment after the due date of
any amount payable under this Note, the Holder hereof not be deemed to have
waived the right either to require prompt payment when due of all other amounts
due under this Note, or to declare a default hereunder.
Section 7. Affirmative and Negative Covenants. Until the obligations of the
Maker hereunder are paid and satisfied in full, the Maker covenants and agrees
as follows:
7.1 Information. Promptly upon the issuance thereof, to deliver to the
Holder copies of all reports, if any, to any applicable governmental agency
or any securities exchange, including the Securities and Exchange
Commission regarding any securities and/or its Subsidiaries and all
reports, notices or statements sent by the Maker and/or its Subsidiaries to
the holders of any indebtedness for borrowed money of the Maker and/or its
Subsidiaries or to the trustee under any indenture under which the same is
issued, and with reasonable promptness, such other information respecting
the business, operations and financial condition of the Borrower as the
Lender may from time to time request;
7.2. Notice of Default. The Maker shall notify the Holder in writing
promptly upon the Maker becoming aware of any default or event, condition
or occurrence which with notice or lapse of time, or both, would constitute
a default under this Note or any agreement for borrowed money in excess of
$3,000,000.00 to which the Maker is a party or by which any of its assets
are bound.
Section 8. Events of Default. Upon the occurrence of any of the following
specified events (each an "Event of Default"):
8.1 Payments. Failure in the payment after the due date (whether at
stated maturity, by acceleration or otherwise) of any amounts due under
this Note; or
8.2 Representations, etc. Any representation, warranty or statement
made by the Maker in the Purchase Agreement or in any statement or
certificate at any time delivered pursuant thereto shall be untrue or
inaccurate in any material respect when made; or
8.3 Other Financial Obligations. The Maker shall fail to perform,
comply with, or observe any material financial obligations contained in any
of the Purchase Agreement or this Note and such default shall not have been
waived or remedied within 10 days after notice thereof from the Holder; or
8.4 Indebtedness. The Maker shall create, incur, assume or suffer to
exist, contingently or otherwise, any indebtedness, except:
(a) indebtedness to the holders of the Senior Indebtedness (up to a
maximum loan principal amount not to exceed $200,000,000.00);
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(b) unsecured current liabilities (not the result of borrowing)
incurred in the ordinary course of business and not represented by any
note, bond, debenture or other similar evidence of indebtedness;
(c) indebtedness outstanding on the date hereof, but not the increase,
refunding or extension of maturity thereof, in whole or in part, including
indebtedness assumed in connection with the transaction contemplated by the
Purchase Agreement;
(d) capital lease obligations or purchase money indebtedness for
equipment secured by purchase money security interests (together with
accessions, additions, modifications and replacements thereof);
(e) indebtedness in respect of taxes, assessments and governmental
charges to the extent that payment therefor shall not at the time be
required to be made in accordance with the provisions of the Loan
Agreement;
(f) future secured indebtedness permitted by prior written consent of
the Holder, which may be withheld in its sole and absolute discretion;
(g) indebtedness of the Maker owed to any direct or indirect
subsidiary;
(h) indebtedness in the nature of guaranties of indebtedness otherwise
permitted hereunder;
(i) indebtedness incurred to refinance other indebtedness permitted
under this Section 8.4; and
(j) indebtedness constituting interest rate or currency future,
forward or swap contracts entered into for the purpose of hedging interest
rate or currency fluctuation risk.
8.5 Default Under Other Indebtedness. The Maker shall (i) fail to pay
when due (after giving effect to applicable grace periods) any indebtedness
in excess of $3,000,000 in the aggregate, or (ii) breach or default in the
observance or performance of any agreement, obligation, covenant or
condition relating to any such indebtedness referred to in clause (i) above
or any other event shall occur or condition exist, the effect of which
breach, default or other event or condition is to cause the holder or
holders of such indebtedness to declare that such indebtedness shall be due
and payable in full prior to its stated maturity or, as to any demand loan,
immediately; or
8.6 Bankruptcy, etc.
(a) A court shall enter a decree or order for relief in respect of the
Maker in an involuntary case under the Bankruptcy Code or any applicable
foreign, federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, which decree or order is not stayed; or (y) an
involuntary case is commenced against the Maker under the Bankruptcy Code
or any applicable foreign, federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect; or a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other person having similar
powers over the Maker, or over all or a substantial part of its property,
shall have been entered; or an interim receiver, trustee or other custodian
of the Maker for all or a substantial part of the property of the Maker is
involuntarily appointed; or a warrant of attachment, execution or similar
process is issued against any substantial part of the property of the
Maker; and the foregoing events continue for 20 days without being
dismissed, or bonded and stayed, or discharged; or
(b) The Maker shall have an order for relief entered with respect to
it or shall commence a voluntary case under the Bankruptcy Code or any
applicable foreign, federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, or shall consent to the appointment
of or taking possession by a receiver, trustee or other custodian for all
or a substantial part of its property, or the making by the Maker of any
assignment for the benefit of creditors; or the inability or failure of the
Maker to pay its debts as such debts mature, or the admission by the Maker
in writing of its inability to pay its debts as such debts become due, or
the
47
Board of Directors (or any committee thereof) of the Maker adopts any
resolution or otherwise authorizes action to approve any of the foregoing;
8.7 Other Mortgages, Liens and Encumbrances. The Maker shall create,
incur, assume or suffer to exist any mortgage, security interest, lien or
encumbrance on any of its property now owned or hereafter acquired, other
than rights granted under, or pursuant to, the Credit Agreement and any
other lien or encumbrance allowed under the terms of the Credit Agreement.
8.8. Change of Control. There shall have occurred a Change of Control
in the Maker. For the purpose of this Note, a "Change of Control" shall
mean:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of fifty percent
(50%) or more of the then outstanding shares of stock of the Maker entitled
to vote in the election of directors (the "Outstanding Common Stock"),
whether in one transaction or in multiple transactions which in the
aggregate equal or exceed fifty percent (50%) of the Outstanding Common
Stock of the Maker; or
(b) Approval by the stockholders of the Maker of (i) a reorganization,
merger or consolidation, in each case, with respect to which all or
substantially all of the individuals and entities who were the beneficial
owners of the Outstanding Common Stock of Maker immediately prior to such
reorganization, merger or consolidation will not, following such
reorganization, merger or consolidation, beneficially own, directly or
indirectly, more than 50% of the then outstanding shares of common stock of
the corporation resulting from such a reorganization, merger or
consolidation, other than a merger or consolidation effected to implement a
recapitalization of the Maker (or similar transaction) in which no "person"
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
acquires 50% or more of Outstanding Common Stock of Maker; or (ii) the sale
or other disposition of all or substantially all of the assets of the
Maker;
THEN, and in any such event, all amounts owing by the Maker pursuant to this
Note shall, at the option of Holder, become immediately due and payable in full.
Section 9. Miscellaneous.
9.1 Binding Obligation. This Note shall be binding upon the Maker and
shall be enforceable against the Maker and its heirs, successors and
representatives, and shall inure to the benefit of the Holder and the
holders of Senior Indebtedness. The Maker may not assign this Note or any
rights hereunder without the express written consent of the Holder. The
Holder may assign this Note in whole or in part, without notice to, or
consent from, the Maker, so long as the assignee shall acknowledge in
writing for the benefit of holders of Senior Indebtedness the continuing
applicability of the subordination provisions. By acceptance of this Note,
the holder of Subordinated Debt agrees to be bound by the terms of this
Note including Section 5 hereof.
9.2 Amendments; Modifications.This Note shall not be amended without
the written consent of the parties' hereto and the Agent for the lenders
under the Credit Agreement. The modification, amendment or waiver of any
provision of this Note or the Purchase Agreement, shall not release, or
diminish, modify or otherwise affect the liability of, Maker or any other
person or entity that may be or become liable under or with respect to this
Note.
9.3 Collection Costs. If the Holder shall employ attorneys to collect
any sums due hereon, then the Maker promises to pay, in addition to all
other sums due hereon, all fees and costs of collection, including
reasonable attorneys' fees.
9.4 WAIVER. MAKER ACKNOWLEDGES THAT THE LOAN EVIDENCED BY THIS NOTE IS
A COMMERCIAL TRANSACTION AND TO THE MAXIMUM EXTENT PERMITTED BY LAW WAIVES
DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT, NOTICE OF NON-PAYMENT, PROTEST
AND NOTICE OF PROTEST, AND NOTICE OF ANY RENEWALS OR EXTENSIONS OF THIS
NOTE.
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9.5 No Obligation to Extend Payment Provisions. Maker agrees that the
time for payment of this Note may be extended at the Holder's sole
discretion, without impairing Maker's liability thereon, and further
consents to the release of all or any part of the security for payment
hereof at the discretion of the Holder, or the release of any party liable
for the obligation without affecting the liability of the other parties
hereto.
9.6 Limitation on Interest. Nothing in this Note shall require the
payment, or permit the collection by the holder hereof, of interest in an
amount exceeding the maximum amount permitted under applicable law in
commercial loan transactions between parties of the character of the
parties hereto (the "Maximum Interest Amount"). Maker shall not be
obligated to pay to said holder any interest in excess of the Maximum
Interest Amount, and the amount of interest payable to said holder under
this Note shall under no circumstance be deemed to exceed the Maximum
Interest Amount. To the extent that any payment made to said holder under
this Note would cause the amount of interest charged to exceed the Maximum
Interest Amount, such payment shall be deemed a prepayment of principal as
to which no prepayment charge shall be required, notwithstanding anything
to the contrary in this Note or, if the amount of excess interest exceeds
the unpaid principal balance of this Note, such excess shall be refunded to
Maker.
9.7 Governing Law; Venue. This Note shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts. Maker
unconditionally and irrevocably agrees that any action or proceeding
against Maker with respect to this Note or for the recognition or
enforcement of any judgment rendered in any such action or proceeding may
be brought in the United States District Court for the District of
Massachusetts or in the courts of the Commonwealth of Massachusetts, as the
holder of this Note may elect; and by executing and delivering this Note,
Maker unconditionally and irrevocably accepts and submits to the
non-exclusive jurisdiction of each of the aforesaid courts in persona
generally with respect to any such action or proceeding for itself and in
respect of its properties. Maker further agrees that final judgment against
it in any action or proceeding shall be conclusive and may be enforced in
any other jurisdiction, by suit on the judgment, a certified or exemplified
copy of which shall be conclusive evidence of the fact and of the amount of
Maker indebtedness.
9.8 WAIVER OF JURY TRIAL. MAKER WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING (INCLUDING ANY AND ALL
COUNTERCLAIMS THERETO) THAT DIRECTLY OR INDIRECTLY RELATES TO THE SUBJECT
MATTER OF THIS NOTE.
9.9 Notices. All notices and other communications required or
permitted to be given hereunder shall be in writing, and if hand-delivered
or transmitted by United States certified mall, return receipt requested,
postage prepaid or by nationally recognized overnight courier, to the
address set forth below, such notice shall be deemed to have been received
on the date so delivered if hand-delivered or if otherwise transmitted,
then three business days following the date of such transmittal.
If to Maker:
▇▇▇▇▇▇▇ Navigation Limited
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
If to the Holder:
Thermo Electron Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
General Counsel
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
9.10 Exercise of Rights. No delay or omission on the part of the
holder in exercising any right hereunder shall operate as a waiver of such
right or any other right hereunder, and a waiver of any such right on any
one occasion shall not be construed as a bar to or waiver of any such right
on any future occasion.
9.11 Non-Exclusive Remedies. No right or remedy of the holder of this
Note is intended to be exclusive of any other right or remedy specified
herein, in the Purchase Agreement or available to said holder at law or in
equity. All such rights and remedies shall be cumulative and concurrent
and, in said holder's sole discretion, may be pursued singularly,
successively or together and may be exercised as often as occasion therefor
shall arise. Without limiting the generality of the foregoing, the payment
by Maker of any installment of interest at the Default Interest Rate is
intended by the parties hereto to represent a non-exclusive remedy of
payment of an agreed amount as compensation to said holder with respect to
costs and expenses incurred and/or damage suffered by said holder as a
result of Maker's failure to comply with one or more obligations imposed
upon Maker in this Note, and any such payment shall be in addition to, and
not in lieu of, such other rights and remedies.
9.12 Severability. If any provision hereof is invalid or unenforceable
in any jurisdiction, the other provisions hereof and thereof shall remain
in full force and effect in such jurisdiction and shall be liberally
construed in favor of the holder of this Note in order to effectuate the
intent of this Note. The invalidity of any provision of this Note in any
jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction, including the Commonwealth of
Massachusetts.
9.13 Schedule. The Schedule of Annual Payments of Interest attached
hereto is incorporated herein and made a part hereof.
IN WITNESS WHEREOF, this Note has been executed, under seal, with the
intention of making this a sealed instrument, as of the day and year first above
written.
▇▇▇▇▇▇▇ NAVIGATION LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: CFO
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