Exhibit 4.6
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN APPLICABLE EXEMPTION TO THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH LAWS.
THIS NOTE IS SUBJECT TO THE TERMS OF A SUBORDINATION AND
INTERCREDITOR AGREEMENT IN FAVOR OF IBM CREDIT CORPORATION, WHICH
SUBORDINATION AND INTERCREDITOR AGREEMENT CONTAINS CERTAIN
SUBORDINATION PROVISIONS AND IS INCORPORATED HEREIN BY REFERENCE.
NOTWITHSTANDING ANY CONTRARY STATEMENT CONTAINED IN THIS NOTE, NO
PAYMENT ON ACCOUNT OF THE PRINCIPAL, PREMIUM, IF ANY, OR INTEREST
HEREOF SHALL BECOME DUE OR BE PAID EXCEPT IN ACCORDANCE WITH THE
TERMS OF SUCH SUBORDINATION AND INTERCREDITOR AGREEMENT.
WESTERN MICRO TECHNOLOGY, INC.,
Issuer
13.5% SECOND PRIORITY SENIOR SECURED NOTES DUE SEPTEMBER 30, 2000
No. 1 September 30, 1997
$7,850,000
FOR VALUE RECEIVED, the undersigned, WESTERN MICRO TECHNOLOGY, INC., a
Delaware corporation (the "ISSUER") hereby promises to pay to XXXXXX XXXXXXX
INC., a Delaware corporation, or registered assigns, the principal sum of SEVEN
MILLION EIGHT HUNDRED FIFTY THOUSAND DOLLARS ($7,850,000) on September 30, 2000,
with interest (computed on the basis of a 360-day year of twelve 30-day months)
(a) on the unpaid balance thereof at the rate of 1.125% per month from the date
hereof, payable monthly, on the 1st day of each month, commencing with November
1, 1997, until the principal hereof shall have become due and payable, and (b)
to the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal and any overdue payment of interest (as defined in the
Agreement (as defined below)), payable monthly as aforesaid (or, at the option
of the registered Holder (as defined in the Agreement) hereof, on demand), at a
rate per annum from time to time equal to the Default Rate (as defined in the
Agreement).
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Payments of principal of and interest on this Note are to be made in lawful
money of the United States of America by the method and to the address or
account specified with respect to the holder hereof pursuant to Section 2.05 of
the Agreement.
This Note is one of a duly authorized issue of Notes of the Issuer
designated as its 13.5% Second Priority Senior Secured Notes Due September 30,
2000 (herein called the "Notes"), limited in aggregate principal amount to
$15,700,000 issued and to be issued under a Note Purchase Agreement dated as of
September 30, 1997 among Issuer, Xxxxxx Xxxxxxx Inc. and Canpartners Investments
IV, LLC as Purchasers, Canpartners Investments IV, LLC, as Agent for the
Purchasers, and WMT Acquisition Corp., Savoir Technology Group, Inc., Star
Management Services, Inc., Inet Systems, Inc., Star Data International, Sirius
Investments, Inc., and Star Data Systems, Inc. (herein called the "Agreement"),
to which Agreement and all Agreements supplemental thereto reference is hereby
made for a statement of the respective rights, thereunder of the Issuer, the
holders of Senior Debt and the Holders of the Notes. Pursuant to the Agreement,
the Holders of Notes are also entitled to the benefits of a Security and Pledge
Agreement, dated September 30, 1997 between the Issuer and the Agent thereunder.
The terms of the Notes include those stated in the Agreement. The Notes are
subject to all such terms, and holders are referred to the Agreement for a
statement of such terms. Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Agreement.
The Issuer hereby acknowledges and makes this Note a registered obligation
for United States withholding tax purposes. The Issuer shall be the registrar
for this Note (the "REGISTRAR") with full power of substitution. In the event
the Registrar becomes unable or unwilling to act as registrar for this Note, the
Issuer shall reasonably designate a successor Registrar. If the Holder is a
foreign person, by its acceptance of this Note, the Holder hereby agrees to
provide the Issuer with a completed Internal Revenue Service Form W-8
(Certificate of Foreign Status) or a substantially similar form for such Holder,
participants or other affiliates who are holders of beneficial interests in this
Note. Notwithstanding any contrary provision contained in this Note or any of
the other Note Documents (as defined in the Agreement), neither this Note nor
any interests herein may be sold, transferred, hypothecated, participated or
assigned to any Person (as defined in the Agreement) except upon satisfaction of
the conditions specified in this paragraph. The Holder, by its acceptance of
this Note, agrees to be bound by the provisions of this paragraph and to
indemnify and hold harmless the Registrar against any and all loss or liability
arising from the disposition by the Holder of this Note or any interest herein
in violation of this paragraph. The Registrar shall keep at its principal
executive office (or an office or agency designated by it by notice to the last
registered Holder) a ledger, in which, subject to such reasonable regulations as
it may prescribe, but at its expense (except as specified below), it shall
provide for the registration and transfer of this Note. No sale, transfer,
hypothecation, participation or assignment of this Note or any interest herein
shall be effective for any purpose until it shall be registered on the books of
the Registrar to be maintained for such purpose. The Registrar shall record the
transfer of this Note on the books maintained for this purpose upon receipt by
the Registrar at the office or agency designated by the Registrar of (a) a
written assignment of this Note (or the applicable interest herein), (b) funds
sufficient to pay any transfer
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taxes payable upon the making of such transfer as well as the cost of reviewing
the documents presented to the Registrar, and (c) such evidence of due execution
as the Registrar shall reasonably require. The Registrar shall record the
transfer of this Note on the books maintained for such purpose at the cost and
expense of the assignee.
This Note is subject to prepayment, in whole or from time to time in part,
at the times and on the terms specified in that certain Agreement, but not
otherwise.
If an Event of Default, as defined in the Agreement, occurs and is
continuing, the principal of this Note may be declared or otherwise become due
and payable in the manner, at the price and with the effect provided in the
Agreement.
Issuer, for itself and its successors and assigns, hereby: (i) waives
demand, presentment for payment, notice of nonpayment, protest, notice of
protest, notice of intent to accelerate, notice of acceleration and all other
notice, filing of suit and diligence in collecting this Note or enforcing any of
its remedies, (ii) agrees that Holder shall not be required first to institute
suit or exhaust its remedies hereon against Issuer or others liable or to become
liable hereon or to enforce its rights against them and (iii) consents to any
extension or postponement of time of payment of this Note and to any other
indulgence with respect hereto without notice thereof to Issuer. This Note, and
the terms, conditions and provisions hereof, may not be changed, modified,
amended or terminated except as provided in the Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of California
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State ("Governing
Law").
Notwithstanding anything to the contrary contained elsewhere in this Note
or in any other Note Document, the Issuer and the Holder of this Note hereby
agree that all agreements among them under this Note and the other Note
Documents, whether now existing or hereafter arising and whether written or
oral, are expressly limited so that in no contingency or event whatsoever shall
the amount paid, or agreed to be paid, to the Holder for the use, forbearance,
or detention of the money loaned to the Issuer and evidenced hereby or thereby
or for the performance or payment of any covenant or obligation contained herein
or therein, exceed the Highest Lawful Rate (as defined below). If due to any
circumstance whatsoever, fulfillment of any provision of this Note or any of the
other Note Documents at the time performance of such provision shall be due
shall exceed the Highest Lawful Rate, then, automatically, the obligation to be
fulfilled shall be modified or reduced to the extent necessary to limit such
interest to the Highest Lawful Rate, and if from any such circumstance the
Holder should ever receive anything of value deemed interest by Governing Law
which would exceed the Highest Lawful Rate, such excessive interest shall be
applied to the reduction of the principal amount then outstanding hereunder or
on account of any other then outstanding Obligations (as defined in the
Agreement) and not to the payment of interest, or if such excessive interest
exceeds the principal unpaid
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balance then outstanding hereunder and such other then outstanding Obligations,
such excess shall be refunded to the Issuer. All sums paid or agreed to be paid
to the Holder for the use, forbearance, or detention of the Obligations and
other Indebtedness of the Issuer to the Holder, to the extent permitted by
Governing Law, shall be amortized, prorated, allocated and spread throughout the
full term of such Indebtedness, until payment in full thereof, so that the
actual rate of interest on account of all such Indebtedness does not exceed the
Highest Lawful Rate throughout the entire term of such Indebtedness. For
purposes of this paragraph, "HIGHEST LAWFUL RATE" means, at any given time
during which any Obligations shall be outstanding hereunder, the maximum
nonusurious interest rate that at any time or from time to time may be
contracted for, taken, reserved, charged or received on the Obligations
evidenced by this Note, under the laws of the State of California (or the law of
any other jurisdiction whose laws may be mandatorily applicable notwithstanding
other provisions of this Note and the other Note Documents), or under applicable
federal laws which may presently or hereafter be in effect and which allow a
higher maximum nonusurious interest rate than under the laws of the State of
California (or such other jurisdiction's law), in any case after taking into
account, to the extent permitted by applicable law, any and all relevant
payments or charges under this Note and any other Note Documents and any
available exemptions, exceptions and exclusions. The terms and provisions of
this paragraph shall control every other provision of this Note and all
agreements between the Issuer and the Holder.
IN WITNESS WHEREOF, the Issuer has executed this Note on the date first
written above.
WESTERN MICRO TECHNOLOGY, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Chief Financial Officer
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