EXECUTION VERSION
EFTC CORPORATION
$5,000,000
Subordinated Notes due March 31, 2000
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NOTE AGREEMENT
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Dated as of November 11, 1999
TABLE OF CONTENTS
Page
1. THE NOTES............................................................1
1a. Authorization of Issue of Notes.............................1
1b. Interest on the Notes.......................................1
2. SALE AND PURCHASE OF NOTES...........................................1
3. CLOSING..............................................................1
3a. Closing, Closing Date.......................................1
4. CONDITIONS...........................................................2
4a. Representations and Warranties; Etc.........................2
4b. Proceedings.................................................2
5. PREPAYMENT OF THE NOTES..............................................2
5a. Optional and Mandatory Prepayments. ........................2
5b. Notice of Prepayment........................................3
5c. Surrender of Notes; Notations Thereon.......................3
5d. Prohibition on Purchase of the Notes........................3
6. AFFIRMATIVE COVENANTS................................................3
6a. Notices.....................................................3
6b. Inspection of Property......................................4
6c. Financial Records...........................................4
6d. Corporate Existence; Etc....................................4
6e. Payment of Taxes and Claims.................................4
7. MERGER, CONSOLIDATION, SALE OR TRANSFER OF ASSETS....................4
8. SUBORDINATION........................................................5
8a. Agreement That Notes Be Subordinate.........................5
8b. Limitation During Certain Defaults on Senior Indebtedness...6
8c. Priority of Senior Indebtedness.............................6
8d. Payment to Holders of Senior Indebtedness of Certain Amounts
Received by Holders of Notes................................6
8e. Notice of Specified Events; Reliance on Certificate of
Liquidating Agent...........................................7
8f. Obligation to Pay Not Impaired..............................7
8g. Limitation During Event of Default Hereunder................8
8h. Reliance by Senior Indebtedness on Xxxxxxxxxxxxx Xxxxxxxxxx.0
#000000 x0
0x. Certain Payments and Credits Permitted.......................8
8j. Subordination Not to Be Prejudiced by Certain Acts...........8
8k. Limitation on Securing Notes.................................8
9. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................8
9a. Organization and Qualification...............................8
9b. Actions Pending; Compliance with Law.........................9
9c. Use of Proceeds..............................................9
9d. Insurance....................................................9
9e. Governmental Consent, Etc...................................10
9f. Holding Company Act and Investment Company Act Status.......10
9g. Taxes.......................................................10
9h. No Default; Conflicting Agreement or Charter Provisions.....10
9i. Financial Statements........................................10
9j. Offering of Securities......................................11
10. REPRESENTATIONS AND COVENANT OF THE PURCHASER........................11
10a. Acquisition for Investment..................................11
10b. ERISA.......................................................11
10c. Restriction on Sale, Other Disposition......................11
11. DEFAULT..............................................................12
11a. Events of Default; Acceleration.............................12
11b. Other Remedies..............................................14
12. DEFINITIONS..........................................................15
13. Miscellaneous........................................................17
13a. Home Office Payment.........................................17
13b. Expenses; Fees..............................................17
13c. Consent to Amendments.......................................17
13d. Registration, Transfer and Exchange of Notes................18
13e. Lost, Etc., Notes...........................................19
13f. Survival of Representations and Warranties; Entire Agreement19
13g. Disclosure to Other Persons.................................19
13h. Successors and Assigns......................................19
13i. Notices.....................................................20
13j. Descriptive Headings........................................20
13k. Governing Law...............................................20
13l. Counterparts................................................20
13m. Satisfaction Requirement....................................20
13n. Severability................................................20
EXHIBIT A
[FORM OF NOTE].......................................................1
EXHIBIT B
[FORM OF CONFIDENTIALITY AGREEMENT]..................................1
#561903 v2
EFTC Corporation
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
As of November 11, 1999
To the Purchaser Accepting
This Agreement on the Signature
Page Hereof
Ladies and Gentlemen:
EFTC CORPORATION (the "Company"), a Colorado corporation, hereby agrees
with you as follows:
1. THE NOTES.
1a. Authorization of Issue of Notes. The Company has duly authorized an
issue of $5,000,000 aggregate principal amount of subordinated notes (the
"Notes"), in the forms of Exhibit A. Each such Note shall bear interest and be
payable as provided herein and therein. As used herein, the term "Notes" shall
include all notes originally issued pursuant to this Agreement and all notes
delivered in substitution or exchange for any of said notes pursuant to this
Agreement and, where applicable, shall include the singular number as well as
the plural. The term "Note" means one of the Notes.
1b. Interest on the Notes. Each Note shall bear interest at a
rate of ten percent (10%)per annum, and on any overdue payment, as specified in
Exhibit A.
2. SALE AND PURCHASE OF NOTES. Upon the terms and subject to the
conditions herein set forth, the Company will issue and sell to you and you will
purchase from the Company Notes in the aggregate principal amount of $
5,000,000, at a purchase price of 100% of such principal amount.
3. CLOSING.
3a. Closing, Closing Date. The closing of the sale of Notes to you
shall take place at the offices of Holme Xxxxxxx & Xxxx LLC, 0000 Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000 on November 11, 1999 or such later date as
shall be mutually agreeable to you and the Company. The date of the closing is
hereinafter referred to as the "Closing Date." At the closing, the Company will
deliver to you one or more Notes to be purchased by you, registered in your name
or in the name of your nominee, in any denominations (multiples of $1,000,000)
and in the aggregate principal amount to be purchased by you, all as you may
specify by timely notice to the Company (or in the absence of such notice, one
Note registered in your name), duly executed and dated the Closing
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Date, against payment of the purchase price therefor with funds immediately
available to the Company at its account no. 126000106 at Bank One, Colorado,
N.A., Denver, CO, ABA No. 000000000. If at the closing the Company shall fail to
tender to you any of the Notes to be purchased by you as provided above in this
Section, or any of the conditions specified in Section 4 shall not have been
satisfied or waived by you by the fifth Business Day after the date intended for
the closing to occur, you shall, at your election, be relieved of all further
obligations under this Agreement, without thereby waiving any other rights you
may have by reason of such failure or such non-fulfillment.
4. CONDITIONS. Your obligations to purchase and pay for the
Notes at the closing hereunder are subject to the fulfillment to your
satisfaction, on or before the Closing Date, of the following conditions:
4a. Representations and Warranties; Etc. The representations and
warranties in Section 9 shall be true on and as of the Closing Date with the
same effect as though such representations and warranties had been made on the
Closing Date, except to the extent of changes caused by the transactions
contemplated hereby; the Company shall have performed all agreements on its part
required to be performed under this Agreement on or prior to the Closing Date;
no Default or Event of Default shall exist; and you shall have received an
Officer's Certificate, dated the Closing Date, to the effect specified in this
Section 4a.
4b. Proceedings. All corporate and other proceedings to be taken by the
Company in connection with the transactions contemplated hereby and all
documents incident thereto shall be reasonably satisfactory in substance and
form to you and your counsel, and you and your counsel shall have received all
such counterpart originals or certified or other copies of such documents as you
or they may reasonably request.
5. PREPAYMENT OF THE NOTES. The Notes may not be paid or prepaid
prior to their final maturity except as hereinafter provided.
5a. Optional and Mandatory Prepayments. (i) Upon notice given as
provided in Section 5b, the Company, at its option, may prepay the Notes as a
whole (or from time to time in part in integral multiples of $50,000), in each
case at the principal amount so to be prepaid, without premium or penalty,
together with interest accrued thereon to the date fixed for such prepayment. It
is understood that the Company intends to use a portion of the net proceeds of
any issuance and sale of equity securities to repay all or a portion of the
Notes. It is further understood that the Company's ability to make any such
prepayment may be limited or prohibited at any particular time by the terms of
the Company's then outstanding Senior Indebtedness.
(ii) Upon (x) the occurrence of a Change of Control or (y) the
incurrence by the Company of any indebtedness for borrowed money that is duly
created in accordance with the terms of a contemporaneous writing (other than
Senior Indebtedness or indebtedness contemplated hereby), then in each case upon
written request of the holders of 100% of the Notes at the time outstanding,
given not less than thirty (30) days prior to the date specified in such notice
as the prepayment date, the Company shall prepay the entire principal amount of
the Notes then outstanding (or, in the case
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of clause (y), the net proceeds of the incurrence of such indebtedness, if
less); provided that the Company shall have no such obligation to so prepay the
Notes unless and until (a) the Company has legally available funds to make such
a prepayment, and (b) the Company is permitted to make such payment pursuant to
the terms of Section 8 hereof and all Senior Indebtedness at the time
outstanding.
(iii) In the event the principal amount of any such prepayment is less
than the outstanding principal amount all of the Notes at the time outstanding,
the Company will allocate the principal amount so to be prepaid among all
outstanding Notes in proportion to the respective unpaid principal amounts
thereof.
5b. Notice of Prepayment. The Company shall give written notice of each
prepayment of Notes pursuant to Section 5a to each holder of such Notes, which
notice shall be given not less than 20 days or more than 60 days prior to the
date fixed for such prepayment, shall specify the amount so to be prepaid and
the date fixed for such prepayment. Notice of prepayment having been so given,
the aggregate principal amount of the Notes so to be prepaid as specified in
such notice, together with interest accrued thereon to such date fixed for
prepayment, shall become due and payable on the specified prepayment date.
5c. Surrender of Notes; Notations Thereon. Subject to the provisions of
Section 13a, as a condition of prepayment of all or any part of the principal of
and interest on any Note, the Company may require the holder to present such
Note for notation of such payment and, if such Note is paid in full, require the
surrender thereof.
5d. Prohibition on Purchase of the Notes. The Company will not, and
will not permit any Affiliate (other than the Initial Purchaser) of the Company
to, acquire directly or indirectly by purchase or prepayment or otherwise any of
the outstanding Notes except (a) by way of payment or prepayment in accordance
with the provisions of the Notes and of this Agreement or (b) pursuant to an
offer to purchase made by the Company or any Affiliate of the Company to the
holders of all Notes, which offer shall require the Company or such Affiliate to
purchase on the same terms and conditions, pro rata among all Notes tendered,
and shall remain open for a period of at least 20 Business Days after notice has
been mailed to the holders of all Notes; provided that at the time of such offer
and purchase no Default or Event of Default shall exist and no waiver in respect
of any previous Default or Event of Default shall then be in effect. Any Notes
purchased by the Company or any such Affiliate in accordance with the preceding
sentence shall thereupon be canceled and no Notes shall be issued in
substitution therefor.
6. AFFIRMATIVE COVENANTS. The Company covenants and agrees that
so long as any Note shall be outstanding:
6a. Notices. The Company will deliver to each Significant Holder in
duplicate promptly after the Company becomes aware of the existence of a Default
or Event of Default, an Officer's Certificate specifying the nature and period
of existence of such Default or Event of Default and what action the Company has
taken, is taking or proposes to take with respect thereto.
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6b. Inspection of Property. The Company will, upon reasonable notice
and subject to applicable law, permit any Person designated in writing by any
Significant Holder (without limitation of any other rights which such
Significant Holder may have as a creditor of the Company) to visit and inspect
at such Significant Holder's expense such of the offices and properties (and,
during the existence of an Event of Default, to examine all corporate books and
financial records) of the Company and its Subsidiaries as such Significant
Holder may reasonably request and to discuss the affairs, finances and accounts
of any thereof with the principal officers of the Company (and, during the
existence of an Event of Default, its independent public accountants), all at
such reasonable times and as often as such, Significant Holder may reasonably
request.
6c. Financial Records. The Company will, and will cause each of its
consolidated Subsidiaries to, maintain financial records (including, but not
limited to, journals and ledgers) so as to reflect accurately its financial
condition in all material respects in accordance with GAAP or, in the case of
any Subsidiary that is not organized under the laws of the United States of
America, any State thereof or the District of Columbia, in accordance with any
prescribed system of accounts applicable from time to time to such Person.
6d. Corporate Existence; Etc. Subject to Section 7, the Company will do
or cause to be done all things necessary to preserve and maintain its existence,
rights and privileges; provided, however, that the Company shall not be required
to preserve any such right or privilege if the Board of Directors of the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the holders of the Notes.
6e. Payment of Taxes and Claims. The Company will pay or discharge, or
cause to be paid or discharged before the same shall become delinquent, (i) all
taxes, assessments and governmental charges imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (ii) all lawful material claims for labor, materials and
supplies that, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; provided that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
7. MERGER, CONSOLIDATION, SALE OR TRANSFER OF ASSETS. The Company
covenants and agrees that so long as any Note shall be outstanding, the Company
will not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person
unless:
(i) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an entirety
shall either (a) expressly assume when due in writing, by documentation
satisfactory to the Required Holder(s), the due and punctual payment of the
principal of and interest on all the Notes and the performance or observance of
every covenant and obligation in this Agreement and the Notes on the part of the
Company to be performed or observed or (b)
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cause a wholly owned Subsidiary of such Person to assume in writing, and such
Person shall unconditionally guarantee such Subsidiary's obligations in respect
of, in each case by documentation satisfactory to the Required Holder(s), the
due and punctual payment of the principal of and interest on all the Notes and
the performance or observance of every covenant and obligation in this Agreement
and the Notes on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall exist;
(iii) the Company has delivered to each holder of a Note an Officer's
Certificate and an opinion of legal counsel, each stating that such
consolidation, merger, conveyance, transfer or lease complies with this Section
7 and that all conditions precedent herein provided for relating to such
transaction have been complied with; and
(iv) such merger or consolidation will not otherwise materially
adversely affect the ability of the Company (or any other obligator with respect
to the Notes) to perform its or their obligations under this Agreement or the
Notes.
The Company will give each holder of Notes written notice of any proposed
transaction permitted by this Section 7 not less than 30 days prior to the date
of consummation thereof. Upon any consolidation or merger of the Company into
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with the
provisions of this Section 7, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or
lease is made (or such wholly owned Subsidiary that assumes the Company's
obligations pursuant to this Section 7) shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Agreement
and the Notes with the same effect as if such successor Person or Subsidiary, as
the case may be, had been named as the Company herein, and thereafter, except in
the case of a lease to another Person, the predecessor Person shall be relieved
of all obligations and covenants under this Agreement and the Notes.
8. SUBORDINATION.
8a. Agreement That Notes Be Subordinate. The Company covenants and
agrees, and you, and each other holder of Notes issued hereunder by the
acceptance thereof likewise covenants and agrees, that all Notes shall be issued
subject to the provisions of this Section 8; and each Person holding any Note,
whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions. All Notes shall, for all purposes and in
all respects without limitation, including those hereinafter in this Section 8
set forth, be subordinated and subject in right of payment to the prior payment
in full in cash or money's worth of the principal of and interest on all Senior
Indebtedness; provided, however, that payments on account of principal of and
interest on the Notes may be made from time to time, subject to the specific
limitations set forth in this Section 8.
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8b. Limitation During Certain Defaults on Senior Indebtedness. If there
shall have occurred a default in the payment of the principal of or any premium
or interest on any Senior Indebtedness, or if there shall have occurred an event
of default with respect to any Senior Indebtedness permitting the holders
thereof to accelerate the maturity thereof, or if such payment would itself
constitute such an event of default, then, unless and until such default or
event of default shall have been cured or waived or shall have ceased to exist,
no payment shall be made by the Company on account of principal of or any
premium or interest on the Notes or on account of the purchase or other
acquisition of Notes.
8c. Priority of Senior Indebtedness. Upon any distribution of all or
substantially all of the assets of the Company, or upon any dissolution, winding
up or liquidation of the Company, whether voluntary or involuntary, or upon any
reorganization, readjustment, arrangement or similar proceeding relating to the
Company or its property, whether or not the Company is a party thereto, and
whether in bankruptcy, insolvency or receivership proceedings or otherwise, or
upon any assignment by the Company for the benefit of creditors, or upon any
other marshaling of the assets and liabilities of the Company:
(i) the principal of and any premium and interest on all the
Senior Indebtedness and any and all other amount dues thereunder shall
first be paid in full in cash or money's worth, or provisions made for
such payment, before any payment is made on account of the principal of
or interest on the Notes; and
(ii) any distribution of assets of the Company or payment by
or on behalf of the Company of any kind or character, whether in cash,
property or securities, to which the holders of the Notes would be
entitled except for the provisions of this Section 8, shall be paid or
delivered by the liquidating trustee or agent or other Person making
such distribution or payment, whether a trustee in bankruptcy,
receiver, assignee for benefit of creditors, liquidating trustee, or
otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, to the extent necessary to
make payment in full in cash or money's worth of the principal of and
any premium and interest on all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent distribution or payment, or
provision therefor, to the holders of such Senior Indebtedness.
8d. Payment to Holders of Senior Indebtedness of Certain Amounts
Received by Holders of Notes. In the event that, notwithstanding the provisions
of Sections 8b and 8c, any distribution of assets of the Company or payment by
or on behalf of the Company of any kind or character, whether in cash, property
or securities, to which the holders of the Notes would be entitled but for the
provisions of this Section 8, shall be received by the holders of the Notes
before the principal of and any premium and interest on all Senior Indebtedness
is paid in full in cash or money's worth, or provision made for its payment,
such distribution or payment shall be held in trust
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for the benefit of, and shall be paid over or delivered to, the holders of such
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably as
aforesaid, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay the principal of and any premium and
interest on all such Senior Indebtedness in full in cash or money's worth, after
giving effect to any concurrent distribution or payment, or provision therefor,
to the holders of such Senior Indebtedness.
8e. Notice of Specified Events; Reliance on Certificate of Liquidating
Agent. (i) The Company shall give prompt written notice to the holders of the
Notes of any dissolution, winding up, liquidation, reorganization, readjustment,
arrangement or similar proceeding, assignment for the benefit of creditors, or
any marshaling of assets and liabilities, in respect of the Company, within the
meaning of Section 8c, and shall also give prompt written notice to the holders
of the Notes of any event which pursuant to Section 8b would prevent payment by
the Company on account of the principal of or interest on the Notes or on
account of the purchase of the Notes. The holders of the Notes shall be entitled
to assume that no such event has occurred unless the Company has given such
notice.
(ii) Upon any distribution of assets of the Company or payment by or on
behalf of the Company referred to in this Section 8, the holders of the Notes
shall be entitled to rely upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 8c
are pending, and the holders of such Notes shall be entitled to rely upon a
certificate of the liquidating trustee or agent or other Person making any
distribution to the holders of such Notes for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Section 8. In the event that any holder of
Notes determines, in good faith, that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Section 8, such holder of Notes may
request such Person to furnish evidence to the reasonable satisfaction of such
holder of Notes as to the amount of Senior Indebtedness held by such Person, as
to the extent to which such Person is entitled to participate in such payment or
distribution, and as to other facts pertinent to the rights of such Person under
this Section 8, and if such evidence is not furnished, such holder of Notes may
defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment.
8f. Obligation to Pay Not Impaired. Nothing contained in this Section 8
or elsewhere in this Agreement, or in the Notes, is intended to or shall alter
or impair, as between the Company, its creditors other than the holders of
Senior Indebtedness, and the holders of the Notes, the obligation of the
Company, which is absolute and unconditional, to pay to the holders of the Notes
the principal of and interest on the Notes at the time and place and at the rate
prescribed, or to affect the relative rights of the holders of the Notes and
creditors of the Company other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the holder of any Notes from exercising
all remedies otherwise permitted by applicable law upon any Default or Event of
Default
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under this Agreement, subject to the rights, if any, under this Section 8 of the
holders of Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
8g. Limitation During Event of Default Hereunder. Subject to Section
8b, if there shall have occurred any Event of Default specified in Section 11a,
other than of the nature referred to in Section 8c, then and unless and until
either such Event of Default shall have been cured or waived or shall have
ceased to exist or the principal of and interest on all Senior Indebtedness
shall have been paid in full in cash or money's worth, no payment shall be made
by the Company on account of the principal of or interest on, the Notes, or on
account of the purchase or other acquisition of Notes, except (i) payments at
the maturity of Notes (subject to Section 8c), (ii) current interest payments,
and (iii) payments for the purpose of curing any such Event of Default.
8h. Reliance by Senior Indebtedness on Subordination Provisions. Each
holder of any Note by the acceptance thereof acknowledges and agrees that the
subordination provisions set forth in this Section 8 are, and are intended to
be, an inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Notes, to acquire and continue to hold, or to continue to hold,
such Senior Indebtedness and such holder of Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold such Senior Xxxxxxxxxxxx.
0x. Certain Payments and Credits Permitted. Nothing contained in this
Section 8 or elsewhere in this Agreement, or in any of the Notes, shall prevent
(i) the Company from making payment of the principal of or interest on the
Notes, at any time except under the conditions described in Sections 8b, 8c and
8g or (ii) the application by the holder of any Notes of any moneys under this
Agreement to the payment of or on account of the principal of or interest on the
Notes at any time except under the conditions described in Section 8d.
8j. Subordination Not to Be Prejudiced by Certain Acts. No right of any
present or future holder of any Senior Indebtedness of the Company 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 Company or by any act
or failure to act, in good faith, by any such holder, or by any non- compliance
by the Company with the terms, provisions and covenants of this Agreement,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
8k. Limitation on Securing Notes. The Company will not give, and the
holders of the Notes will not take or receive, any security interest for the
payment of the principal of or interest on the Notes, other than cash required
or permitted to be paid to such holders hereunder.
9. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants as hereinafter set forth.
9a. Organization and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Colorado, each of the Company's
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Subsidiaries is duly organized and existing in good standing under the laws of
the jurisdiction in which it is incorporated, and the Company and each such
Subsidiary has the corporate power to own its respective property and to carry
on its respective business as now being conducted, and the Company and each
Subsidiary is duly qualified as a foreign corporation to do business and in good
standing in every jurisdiction in which the nature of the respective business
conducted or property owned by it makes such qualification necessary and where
the failure so to qualify would have a material adverse effect on the business
or financial position of the Company or the Company and its Subsidiaries taken
as a whole. The Company and its Subsidiaries possess all rights, licenses and
permits reasonably required for the maintenance and operation of their
respective properties and the conduct of their respective businesses as now
being maintained and operated and conducted. The issuance and sale of the Notes
and the execution and delivery of this Agreement by the Company and compliance
by the Company with all of the provisions of this Agreement and the Notes (i)
are within the corporate powers and authority of the Company, (ii) do not
require the approval or consent of any stockholders of the Company and (iii)
have been authorized by all requisite corporate proceedings on the part of the
Company.
9b. Actions Pending; Compliance with Law. Other than as disclosed in
any documents filed by the Company with the Securities and Exchange Commission,
there is no action, suit, investigation or proceeding pending, or to the
knowledge of the Company threatened, against the Company or any of its
Subsidiaries or any of their respective properties or assets by or before any
court, arbitrator or governmental body, department, commission, board, bureau,
agency or instrumentality, which questions the validity of this Agreement or the
Notes or any action taken or to be taken pursuant hereto or thereto, or which,
in the opinion of senior management of the Company after consultation with
counsel, are reasonably likely to result in any material adverse change in the
business or financial condition of the Company and its Subsidiaries taken as a
whole. Neither the Company nor any of its Subsidiaries is in default in any
material respect with respect to any judgment, order, writ, injunction, decree,
or award, and, the business of the Company and its Subsidiaries is presently
being conducted so as to comply in all material respects with applicable
federal, state and local governmental laws and regulations, including without
limitation laws and regulations relating to environmental requirements (such as
requirements in respect of air, water and noise pollution) and to employment
practices (such as practices in respect of discrimination, health and safety),
all to the extent necessary to avoid any material adverse effect on the
business, properties or condition (financial or other) of the Company or the
Company and its Subsidiaries taken as a whole.
9c. Use of Proceeds. The Company will use the proceeds of the sale of
the Notes for general corporate purposes, including without limitation making
payments under the Senior Indebtedness.
9d. Insurance. The Company and its Subsidiaries maintain insurance in
such amounts, including self-insurance, retainage and deductible arrangements,
and of such a character as is usually maintained by or required for companies
engaged in the same or similar business.
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9e. Governmental Consent, Etc. The Company is not required to obtain
any consent, approval or authorization of, or to make any declaration or filing
with, any governmental authority as a condition to or in connection with the
execution, delivery or performance of this Agreement, the Notes or the valid
offer, issue, sale or delivery of the Notes or the performance by the Company of
its obligations in respect thereof.
9f. Holding Company Act and Investment Company Act Status. The Company
is not a "holding company" or a "public utility company" as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended. The
Company is not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
9g. Taxes. The Company and its Subsidiaries have filed or caused to be
filed all federal and state income tax returns which are required to be filed
and have paid or caused to be paid all taxes as shown on said returns and on all
assessments received by it to the extent that such taxes have become due, except
taxes (i) the validity or amount of which is being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
set aside and (ii) which, in the aggregate, are in an amount that is not
material to the Company and its Subsidiaries taken as a whole. The Company and
its Subsidiaries have paid or caused to be paid, or have established reserves
adequate in all material respects, for all federal income tax liabilities and
state income tax liabilities applicable to the Company and its Subsidiaries for
all fiscal years which have not been examined and reported on by the taxing
authorities (or closed by applicable statutes).
9h. No Default; Conflicting Agreement or Charter Provisions. Neither
the Company nor any of its Subsidiaries is a party to any contract or agreement
or subject to any charter or other corporate restriction which materially and
adversely affects the business, property or assets or financial condition of the
Company and its Subsidiaries taken as a whole. Neither the issuance and sale of
the Notes nor fulfillment of nor compliance with the terms and provisions hereof
or of the Notes will conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, or result in any
violation of, the Certificate of Incorporation or by-laws of the Company or any
material mortgage, agreement, instrument, order, judgment, decree, statute, law,
rule or regulation to which the Company or its property is subject. The Company
is not in default under any outstanding indenture or other debt instrument or
with respect to the payment of principal of or interest on any outstanding
obligations for borrowed money, and there exists no default by the Company under
any material contracts or agreements, or under any instrument by which the
Company is bound, which would materially and adversely affect the Company's
ability to perform its obligations hereunder or under the Notes or which would
materially and adversely affect its business, operations or financial condition.
9i. Financial Statements. The Company has provided you copies of
consolidated balance sheets of the Company and its consolidated Subsidiaries as
of December 31, 1998 and the related consolidated statements of operations, cash
flows and changes in consolidated common stockholders' equity position of the
Company and such Subsidiaries for the fiscal years ended on said dates, all with
reports thereon of KPMG LLP, independent public accountants. The Company has
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also provided to you copies of a consolidated balance sheet of the Company and
its consolidated Subsidiaries as of June 30, 1999 and the related consolidated
statements of operations and cash flows for the fiscal quarter then ended. All
of such financial statements (including the related schedules and notes) fairly
present the consolidated financial position of the Company and such Subsidiaries
as of the respective dates of said balance sheets and the consolidated results
of their operations for the fiscal periods ended on said dates, and have been
prepared in accordance with GAAP consistently maintained by the Company and such
Subsidiaries throughout such periods, except as set forth in the notes thereto.
Except as disclosed to the Initial Purchaser, there are no material liabilities,
contingent or otherwise, of the Company or any such Subsidiary as of June 30,
1999 that are not reflected in said consolidated balance sheet (or the notes
thereto as required by GAAP) as of said date. Except as disclosed to the Initial
Purchaser, since June 30, 1999, there has been no change in the business,
financial condition, properties or prospects of the Company and its Subsidiaries
taken as a whole that could materially and adversely affect the Company's
ability to perform its obligations hereunder or under the Notes.
9j. Offering of Securities. Neither the Company nor any agent acting on
its behalf has offered the Notes or any similar securities of the Company for
sale to, or solicited any offers to buy the Notes or any similar securities of
the Company from, or otherwise approached or negotiated with respect thereof
with, any Person other than you, and the Company has offered the Notes to you
for purposes of investment and not for distribution. Neither the Company nor any
agent acting on its behalf has offered or will offer the Notes or any part
thereof or any similar securities for issue or sale to, or solicit any offer to
acquire any of the same from, anyone so as to bring the issuance and sale of the
Notes within the provisions of Section 5 of the Securities Act.
9k. Disclosure. None of this Agreement or any certificate or written
disclosure statement furnished to you on or prior to the Closing Date by or on
behalf of the Company in connection with the transactions contemplated hereby,
when taken together as a whole, contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
contained herein and therein, in light of the circumstances in which they were
made, not misleading.
10. REPRESENTATIONS AND COVENANT OF THE PURCHASER.
10a. Acquisition for Investment. You represent, and in making this sale
to you it is specifically understood and agreed, that you are not acquiring the
Notes to be purchased by you hereunder with a view to, or for sale in connection
with, any distribution of any part thereof within the meaning of the Securities
Act, and that you have no present intention or plan to effect any distribution
of any of the Notes.
10b.ERISA. You represent that your purchase of Notes hereunder is not
being made for or on behalf of any pension or welfare plan, as defined in
Section 3 of ERISA.
10c.Restriction on Sale, Other Disposition. You agree that, without
the prior consent of the Company, you will not, directly or indirectly, sell,
transfer, pledge, encumber or otherwise dispose of (a "Transfer") any Notes or
any interest therein. Without limiting the foregoing, any
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Permitted Transferee shall, by a written agreement reasonably satisfactory to
the Company, expressly assume your obligations, duties and covenants under this
Agreement as to the Notes so Transferred and make a representation to the
Company to the same or similar effect as is contained in Section 10b or provide
other information reasonably satisfactory to the Company to enable the Company
to determine that the Transfer of such Note to such Transferee will not
constitute a non- exempt prohibited transaction under Section 406 of ERISA.
11. DEFAULT.
11a. Events of Default; Acceleration. (i) "Event of Default", wherever
used herein with respect to Notes, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Section 8 or be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(A) default in the due and punctual payment of all or any part
of the principal on any Note (whether at the stated maturity or by
declaration of acceleration, by notice of prepayment at the option of
the Company or otherwise); or
(B) default in the due and punctual payment of any interest on
any Note and such default shall have continued for a period of 10 days;
or
(C) default in the performance or observance of any other
covenant of the Company in this Agreement and such default shall have
continued for a period of 30 days after the Company first becomes aware
thereof; or
(D) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or any
Subsidiary or under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or a Subsidiary, whether
such indebtedness now exists or shall hereafter be created, which
default shall constitute a failure to pay an aggregate principal amount
of such indebtedness exceeding $1,000,000 when due and payable after
the expiration of any applicable grace period with respect thereto or
shall have resulted in such indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become
due and payable in an aggregate principal amount exceeding $1,000,000,
without such indebtedness having been discharged, or such acceleration
having been rescinded or annulled, within a period of 10 days after the
occurrence thereof; or
(E) any representation or warranty of the Company in this
Agreement or in any certificate or other instrument delivered hereunder
or pursuant hereto shall prove to be false or incorrect in any material
respect on the date as of which it was made; or
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(F) the entry by a court having jurisdiction in the premises
of (1) a decree or order for relief in respect of the Company or a
Subsidiary in an involuntary case or proceeding under any applicable
United States federal or state bankruptcy, insolvency, reorganization
or other similar law of any applicable jurisdiction or (2) a decree or
order adjudging the Company or a Subsidiary a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable United States federal or state law or the
applicable law of any other jurisdiction or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or a Subsidiary or of any substantial part of
its property, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60
consecutive days; or
(G) the commencement by the Company or any Subsidiary of a
voluntary case or proceeding under any applicable United States federal
or state bankruptcy, insolvency, reorganization or other similar law of
any applicable jurisdiction or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company or any
Subsidiary in an involuntary case or proceeding under any applicable
United States federal or state bankruptcy, insolvency, reorganization
or other similar law of any applicable jurisdiction or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable United States Federal or
state law or the applicable law of any other jurisdiction, or the
consent of the Company or a Subsidiary to the filing of such petition
or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any Subsidiary or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company or a Principal Subsidiary in furtherance of any
such action;
then (x) upon the occurrence of any Event of Default described in the foregoing
clauses (F) or (G) with respect to the Company or a Subsidiary the unpaid
principal amount of all Notes, together with the interest accrued thereon, shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by the Company, or (y) upon the occurrence of any other Event of Default,
the holder or holders of at least 25% of the outstanding principal amount of the
Notes may, by written notice to the Company, declare the unpaid principal amount
of all Notes to be, and the same shall forthwith become, due and payable,
together with the interest accrued thereon, all without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived; provided that, during the existence of an Event of Default described in
the foregoing clause (A) or clause (B) with respect to any Note, the holder of
such Note may, by written notice to the Company
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declare such Note to be, and the same shall forthwith become, due and payable,
together with the interest accrued thereon, all without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived. If any holder of any Note shall exercise the option specified in the
proviso to the preceding sentence, the Company will forthwith give written
notice thereof to the holders of all other outstanding Notes and each such
holder may (whether or not such notice is given or received), by written notice
to the Company, declare the principal of all Notes held by it to be, and the
same shall forthwith become, due and payable, together with the interest accrued
thereon.
(ii) The provisions of this Section 11a are subject, however, to the
condition that if, at any time after any Note shall have so become due and
payable, the Company shall pay all arrears of interest on the Notes and all
payments on account of the principal of the Notes which shall have become due
otherwise than by acceleration (with interest on such principal and, to the
extent permitted by law, on overdue payments of interest, at the rate specified
in the Notes) and all Events of Default (other than nonpayment of principal of
and accrued interest on Notes due and payable solely by virtue of acceleration)
shall be remedied or waived pursuant to Section 13c, then, and in every such
case, the holder or holders of at least a majority of the outstanding principal
amount of the Notes, by written notice to the Company, may rescind and annul any
such acceleration and its consequences, but no such action shall affect any
subsequent Default or Event of Default or impair any right consequent thereon.
11b. Other Remedies. (i) If any Event of Default shall exist, subject
to the provisions of Section 8, the holder of any Note may proceed to protect
and enforce its rights, either by suit in equity or by action at law, or both,
whether for the specific performance of any covenant or obligation contained in
this Agreement or in the Notes or in aid of the exercise of any power granted in
this Agreement, or the holder of any Note may proceed to enforce the payment of
all sums due upon such Note or to enforce any other legal or equitable right of
the holder of such Note.
(ii) The Company covenants that, if it shall default in the making of
any payment due under any Note or in the performance or observance of any
covenant or obligation contained in this Agreement or in the Notes, it will pay
to the holder thereof such further amounts, to the extent lawful, as shall be
sufficient to pay the costs and expenses of collection or of otherwise enforcing
such holder's rights, including reasonable legal or other professional fees.
(iii) No remedy herein conferred upon you or the holder of any Note is
intended to be exclusive of any other remedy each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise.
(iv) No course of dealing between the Company and you or any other
holder of a Note, and no delay or failure in exercising any rights hereunder or
under any Note, shall operate as a waiver of any rights you or any such holder
of a Note may have.
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12. DEFINITIONS. For the purpose of this Agreement the following terms
shall have the meanings specified with respect thereto below:
"Affiliate" means, with respect to a specified Person, any other Person
that controls, is controlled by, or is under common control with such specified
Person. For the purposes of this definition, the term "control" (including, with
correlative meanings, the terms "controlling," "controlled by" or "under common
control with") means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
"Business Day" means any day other than a Saturday, Sunday, or a day on
which banking institutions in the State of Colorado are authorized or obligated
by law or executive order to close.
"Change of Control" means any occurrence or event pursuant to which any
Person or group of Persons (within the meaning of Section 13(d) of the Exchange
Act) shall obtain ownership or control in one or more series of transactions of
more than fifty percent (50%) of the common stock of the Company or fifty
percent (50%) of the voting power of the Company entitled to vote on the
election of members of the board of directors of the Company.
"Closing Date" shall have the meaning specified in Section 3a.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" shall have the meaning specified in the introduction to this
Agreement.
"Default" means any event which, with notice or the lapse of time or
both, would constitute an Event of Default.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles as in effect in
the United States at the time of application to the provisions thereof.
Initial Purchaser means the initial purchaser of the Notes accepting
this Agreement on the signature page hereof.
"Interest Payment Date" means each January 1, April 1, July 1 and
October 1 of each year, beginning on January 1, 2000.
"Notes" shall have the meaning specified in Section 1a.
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"Officer's Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, if any, the Chief Executive Officer,
the Chief Financial Officer, the President, the Controller or a Vice President
of the Company or any officers of the Company performing the same duties from
time to time.
"Permitted Transferee" means a Person to whom Notes are permitted to be
Transferred pursuant to Section 10c.
"Person" means and include an individual, a partnership, a limited
liability company, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof.
"Required Holder(s)" means the holder or holders of at least 51% of the
outstanding principal amount of the Notes at the time.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means (i) the Credit Agreement among the Company,
the Banks party thereto and Bank One, Colorado, N.A., as Agent, dated as of
September 30, 1997, as amended by the Restated and Amended Credit Agreement
dated as of March 12, 1999, and any extensions or renewals, and any substitute,
refinancing or replacements thereof, (ii) all other indebtedness of the Company
for borrowed money that is duly created in accordance with the terms of a
contemporaneous writing expressly providing for such indebtedness to be senior
in right of payment to the Notes, and (iii) all debts, liabilities, obligations,
covenants and duties of the Company arising under either of the foregoing.
"Significant Holder" means (i) you, so long as you shall hold (or be
committed under this Agreement to purchase) any Notes, (ii) any Affiliate of
yours, or (iii) any other holder of at least 25% of the outstanding principal
amount of the Notes from time to time.
"Subsidiary" means (i) any Person of which or in which the Company
and/or its other Subsidiaries own directly or indirectly more than 50% of (a)
all classes of Voting Stock of such Person, if it is a corporation, (b) the
capital interest or profits interest of such Person, if it is a partnership,
limited liability company, joint venture of similar entity or (c) the beneficial
interest of such Person, if it is a trust, association or other unincorporated
organization; provided that, in the case of each Person specified in the
foregoing clauses (a) through (c), such Person is accounted for as a
consolidated Subsidiary on the balance sheet of the Company in accordance with
GAAP, and (ii) any other Person that is accounted for as a consolidated
subsidiary of the Company in accordance with GAAP. Except as otherwise expressly
indicated herein, references to Subsidiaries shall refer to Subsidiaries of the
Company.
"Transfer" shall have the meaning specified in Section 10c.
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"Voting Stock" means, with respect to a corporation, all classes of
capital stock of such corporation that have voting power under ordinary
circumstances to elect the directors of such corporation, whether at all times
or only so long as no senior class of capital stock of such corporation has such
voting power as the result of the occurrence of any contingency; and without
limiting the foregoing, any such class of capital stock which is redeemable or
which has a preference upon redemption or upon payment of dividends over any
other class of capital stock of such corporation shall not, irrespective of
voting power, be deemed to be Voting Stock.
13. Miscellaneous.
13a. Home Office Payment. The Company agrees that, as long as you shall
hold any Notes, all payments to be made on, or in connection with the payment or
prepayment of, such Notes will be made at such place and in such manner you may
designate in writing, without any requirement for the presentation or surrender
of such Notes. You agree that (i) prior to any delivery upon the sale or other
disposition of any Note held by you, you will promptly make or cause to be made
a notation on such Note of any such payment on account thereof, (ii) if such
Note shall be paid in full you will promptly surrender such Note to the Company
for cancellation, and (iii) prior to any delivery upon the sale or other
disposition of any Note held by you, you will surrender such Note to the Company
in exchange for a new Note or Notes in the same aggregate principal amount being
sold or disposed of and the aggregate unpaid principal amount of Notes to be
held by you after such sale or disposition. The Company agrees to afford the
benefits of this Section 13a to any Permitted Transferee which shall have made
the same agreement as you have made in this Section 13a.
13b. Expenses; Fees. The Company agrees to be responsible for and to
pay your and the Company's respective costs, fees and expenses incurred in
connection with the negotiation, execution and delivery of this Agreement and
the Notes. The Company also agrees to pay all fees of the Initial Purchaser as
agreed separately in writing between the Company and the Initial Purchaser.
13c. Consent to Amendments. (i) This Agreement may be amended only with
the consent of the Company, and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if the Company shall have obtained the consent to such amendment or waiver
with respect to such action or omission to act, by one or more substantially
concurrent written instruments signed by the Required Holder(s); provided,
however, that
(A) no such amendment or waiver shall
(1) change the rate or extend the time of payment of
interest on any of the Notes, without the consent of the
holder of each Note so affected, or
(2) modify any of the provisions of this Agreement or
of the Notes with respect to the payment or prepayment
thereof, or reduce the percentage of the principal amount of
the Notes the holders of
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which are required to approve any such amendment or effectuate
any such waiver, without the consent of the holders of all the
Notes then outstanding, and
(B) no such waiver shall extend to or affect any obligation
not expressly waived or impair any right consequent thereon.
(ii) Any amendment or waiver pursuant to clause (i) above shall apply
equally to all the holders of the Notes and shall be binding upon them, upon
each future holder of any Note and upon the Company, in each case whether or not
a notation thereof shall have been placed on any Note.
(iii) the Company will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement or the Notes unless each holder of a Note (regardless of the principal
amount of Notes then held by it) shall be informed thereof by the Company and
shall be afforded the opportunity of considering the same and shall be supplied
by the Company with sufficient information to enable it to make an informed
decision with respect thereto. The Company will not, directly or indirectly, pay
or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, to any holder of a Note as consideration
for or as an inducement to the entering into by such holder of any such
amendment or waiver unless such remuneration is concurrently paid, on the same
terms, ratably to the holders of all of the Notes then outstanding. The Company
shall promptly send copies of any amendment, waiver (and any request for any
such amendment, consent or waiver) relating to this Agreement to you and, to the
extent practicable, shall consult with you in connection with each such
amendment, consent and waiver.
(iv) For the purpose of determining whether the holders of the
requisite outstanding principal amount of Notes have taken any action or given
any consent or approval under this Agreement, any Notes held by the Company or
any of its Affiliates (other than the Initial Purchaser) shall not be deemed
outstanding.
13d. Registration, Transfer and Exchange of Notes. The Company will
keep at its principal executive office a note register in which, subject to such
reasonable regulations as it may prescribe, but at its expense (other than
transfer taxes, if any), it will provide for the registration and transfer of
Notes.
The holder of any Note may, at such holder's option, surrender the same
for transfer or exchange at said office, or at the place of payment named in
such Note, accompanied in the case of a transfer by a written instrument of
transfer duly executed by the holder thereof or by such holder's attorney duly
authorized in writing. In case any holder shall so request transfer or exchange
of any Note, the Company at its expense (other than transfer taxes, if any, or
similar governmental charges) will deliver in exchange therefor one or more new
Notes (in minimum denominations of $1,000,000, except to evidence the entire
unpaid principal amount of the Note so surrendered), as requested by such
holder, in the same aggregate principal amount as the Note so surrendered, each
dated the later of the date of, or the date to which interest has been paid on,
the Note so surrendered.
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The Company and any agent of the Company may treat the Person in whose
name any Note is registered as the owner of such Note for the purpose of
receiving payment of the principal of and interest on, such Note and for all
other purposes whatsoever, whether or not such Note be overdue, and prior to due
presentment for registration of transfer, the Company shall not be affected by
notice to the contrary. If any Note shall have been transferred to another
holder pursuant to this Section and such holder shall have designated in writing
the address to which communications with respect to such Note shall be mailed,
all notices, certificates, requests, statements and other documents required or
permitted to be delivered to any holder of a Note by any provision hereof shall
be delivered to such holder.
13e. Lost, Etc., Notes. Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
any Note, and (in case of loss, theft or destruction) of indemnity satisfactory
to it, or (in the case of mutilation) upon surrender and cancellation of such
Note, the Company will make and deliver in lieu of such Note a new Note of like
tenor and for the same unpaid principal amount, dated the later of the date of,
or the date to which interest has been paid on, the Note in lieu of which such
new Note is made and delivered.
13f. Survival of Representations and Warranties; Entire Agreement. All
representations and warranties contained herein or made in writing by the
Company in connection herewith shall survive the execution and delivery of this
Agreement, the sale and purchase of the Notes. Subject to the preceding
sentence, this Agreement embodies the entire agreement and understanding between
you and the Company and supersedes all prior agreements and understandings
relating to the subject matter hereof.
13g. Disclosure to Other Persons. The Company acknowledges that the
holder of any Notes may deliver copies of any financial statements and other
documents delivered to such holder, and disclose any other information disclosed
to such holder, by or on behalf of the Company or any Subsidiary of the Company
in connection with or pursuant to this Agreement to (i) such holder's directors,
officers, employees, agents and professional consultants (who shall be made
aware of the requirements of this Section 13g and the need to comply herewith),
(ii) any federal or state regulatory authority having jurisdiction over such
holder, (iii) any Person expressly identified in a prior written consent of the
Company or (iv) any other Person to whom such delivery or disclosure may be
necessary or appropriate (a) in compliance with any law, rule, regulation or
order applicable to such holder or (b) in response to any subpoena or other
legal process; provided that you agree not to disclose to any Person specified
in clause (iii) above any information delivered to you pursuant to Section 6a or
any other provisions of this Agreement that the Company has conspicuously
identified as non-public, confidential or proprietary in nature and subject to
the provisions hereof unless such Person shall have executed and delivered to
the Company an agreement substantially in the form of Exhibit B hereto.
13h. Successors and Assigns. All covenants and agreements in this
Agreement contained by or on behalf of either of the parties hereto shall bind
and inure to the benefit of the Company's successors and assigns and your
successors and assigns, including any Permitted Transferees.
-19-
13i. Notices. All communications provided for hereunder shall be sent
by facsimile transmission, with written confirmation of receipt, or a
nationwide overnight delivery service, with receipt of delivery requested, and
(i) if to you, addressed to you at the address set forth by you for such
communications on the signature page hereof, or to such other address as you may
have designated to the Company in writing, (ii) if to any other holder of the
Notes, addressed to such holder at the address of such holder in the note
register of the Company, and (iii) if to the Company, addressed to it at, EFTC
Corporation 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, Attention: Chief
Financial Officer (Tel: (000) 000-0000; Fax: (000) 000-0000), with a copy to the
attention of Xxxxxxx X. Xxxxxxx, Esq. at Xxxxx Xxxxxxx & Xxxx XXX, Xxxxx 0000,
0000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 (tel: (000) 000-0000; Fax: (303)
000-0000), or to such other address or addresses as the Company may have
designated in writing to you and each other holder of any of the Notes at the
time outstanding.
13j. Descriptive Headings. The descriptive headings of the several
Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
13k. Governing Law. This Agreement and the Notes shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the laws of the State of Colorado (without regard to conflicts of laws
provisions thereof).
13l. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
13m. Satisfaction Requirement. If any agreement, certificate or other
writing, or any action taken or to be taken, or any other thing, is by the terms
of this Agreement required to be
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satisfactory to you or to the Required Holder(s), the determination of such
satisfaction shall be made by you or the Required Holder(s), as the case may be,
in the sole and exclusive judgment (exercised in good faith) of the Person or
Persons making such determination.
13n. Severability. In case any one or more of the provisions contained
in this Agreement or in any instrument contemplated hereby, or any application
thereof, shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein, and any other application thereof, shall not in any way be
affected or impaired thereby.
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this letter and return the same to the
undersigned, whereupon this letter shall become a binding agreement between you
and the undersigned.
Very truly yours,
EFTC CORPORATION
By
Name:
Title:
The foregoing Agreement is hereby accepted and agreed as of the date first above
written:
-------------------------------
Xxxxxxx Family Limited Partnership I
Address: 0000 Xxxxxx Xxxxx, Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax Number: (000) 000-0000
-21-
EXHIBIT A
[FORM OF NOTE]
EFTC CORPORATION
Subordinated Note due 2000
No. ________ Denver, Colorado
$__________ ____________, 0000
XXXX CORPORATION, a Colorado corporation (the "Company"), for value
received, hereby promises to pay to or registered assigns, the principal sum of
DOLLARS (or so much thereof as shall have not been prepaid) on March 31, 2000
and to pay interest (computed on the basis of a 365-day year (or a 366-day year,
in a leap year)) on the unpaid principal hereof from the date hereof at a rate
of ten percent (10%) per annum (the "Applicable Interest Rate"), payable in
arrears on each Interest Payment Date (unless any such Interest Payment Date is
a Saturday, a Sunday or a day on which banking institutions in Denver, Colorado,
or New York, New York are authorized or obligated by law or executive order to
close (an "Excluded Day"), in which case the interest payment due on such
Interest Payment Date will be made the next day thereafter that is not an
Excluded Day), until such principal sum shall have become due and payable
(whether at maturity, upon acceleration, upon notice of prepayment or otherwise)
and to pay on demand interest (so computed) on any overdue principal and, to the
extent permitted by applicable law, on any overdue interest, from the due date
thereof at a rate per annum equal to the greater of (i) 2% over the Applicable
Interest Rate for this Note from time to time in effect pursuant to the Note
Agreement and (ii) 2% above the prime commercial lending rate of interest
announced from time to time by Bank One, Colorado, N.A. at its principal office
in Denver, Colorado (or, if said bank shall no longer be in existence, by the
domestic commercial bank which at the time has the largest capital and surplus
of all domestic commercial banks), until the obligation of the Company with
respect to the payment thereof shall be discharged. Payments of principal and
interest shall be made in lawful money of the United States of America upon the
presentation hereof (subject to the provisions of Section 13a of the Note
Agreement with respect to payments to certain holders) at said principal office
of the Company.
This Note is one of the Subordinated Notes due March 31, 2000 of the
Company issued pursuant to the Note Agreement dated as of November 11, 1999 (as
at any time amended, the "Note Agreement") entered into by the Company with the
initial purchaser, and the duly registered holder of this Note is entitled to
the benefits thereof. Capitalized terms used herein without definition have the
meanings ascribed thereto in the Note Agreement.
A-1
The Company may at its election prepay this Note, in whole or in part,
and the maturity hereof may be accelerated following an Event of Default and
certain other stated events, all as provided in the Note Agreement, to which
reference is made for the terms and conditions of such provisions as to
prepayment and acceleration.
Upon surrender of this Note for registration of transfer or exchange,
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note of the same series and for a like principal amount will be
issued to, and, at the option of the holder, registered in the name of, the
transferee. The Company and any agent of the Company may deem and treat the
Person in-whose name this Note is registered as the owner hereof for the purpose
of receiving payments of the principal hereof and interest hereon and for all
other purposes whatsoever whether or not this Note is overdue, and the Company
shall not be affected by any notice to the contrary.
Payments of principal and interest in respect of this Note are
subordinate, to the extent and upon the terms set forth in the Note Agreement,
to all payments on or in respect of "Senior Indebtedness". The holder of this
Note, by acceptance hereof, is deemed to accept the terms and conditions of said
Note Agreement providing for such subordination.
As provided in the Note Agreement, this Note shall be governed by and
construed in accordance with the laws of the State of Colorado.
EFTC CORPORATION
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Chief Executive Officer
A-2
EXHIBIT B
[FORM OF CONFIDENTIALITY AGREEMENT]
[Date]
EFTC Corporation
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Ladies and Gentlemen:
In connection with the Note Agreement, dated as of November 11, 1999 (the
"Agreement"), between EFTC Corporation (the "Company") and the initial purchaser
of the notes specified therein, the Company may furnish us with certain
information that is non-public, confidential or proprietary in nature.
As used herein, "Confidential Information" means information about the Company
furnished to us by the Company (or by a holder of Notes issued under the
Agreement who received such information as provided in the Agreement) pursuant
to Section 6a thereof (or any other information delivered to us pursuant to the
Agreement) if the Company or such holder has conspicuously identified such
information as non-public, confidential or proprietary in nature and subject to
the provisions of the Agreements or this letter, but does not include
information (i) which was publicly known, or otherwise known to me, at the time
of disclosure, (ii) which subsequently becomes publicly known through no act or
omission by me or (iii) which otherwise becomes known to me, other than through
disclosure by the Company.
I agree that I will (1) hold in confidence the Confidential Information and (2)
not disclose or permit disclosure of the Confidential Information, except as
permitted in Section 13g of the Agreement, a copy of which is attached hereto as
Annex I. Notwithstanding the foregoing, I will be free, after notice to the
Company, to correct any false or misleading information which may become public
concerning our relationship to the Company.
Please confirm your agreement with the foregoing by signing and returning to me
the enclosed copy of this letter.
Very truly yours,
By
Name:
Title:
Accepted and agreed to:
EFTC CORPORATION
By
Name:
Title:
B-1
B-2
ANNEX I
To Confidentiality Agreement
13g. Disclosure to Other Persons. The Company acknowledges that the
holder of any Notes may deliver copies of any financial statements and other
documents delivered to such holder, and disclose any other information disclosed
to such holder, by or on behalf of the Company or any Subsidiary of the Company
in connection with or pursuant to this Agreement to (i) such holder's directors,
officers, employees, agents and professional consultants (who shall be made
aware of the requirements of this Section 13g and the need to comply herewith),
(ii) any federal or state regulatory authority having jurisdiction over such
holder, (iii) any Person expressly identified in a prior written consent of the
Company or (iv) any other Person to whom such delivery or disclosure may be
necessary or appropriate (a) in compliance with any law, rule, regulation or
order applicable to such holder or (b) in response to any subpoena or other
legal process; provided that you agree not to disclose to any Person specified
in clause (iii) above any information delivered to you pursuant to Section 6a or
any other provisions of this Agreement that the Company has conspicuously
identified as non-public, confidential or proprietary in nature and subject to
the provisions hereof unless such Person shall have executed and delivered to
the Company an agreement substantially in the form of Exhibit B hereto.
B-3
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
(Insert assignee's social security or tax identification number)
(Print or type assignee's name, address and zip code)
and irrevocably appoint ___________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: _____________ Your Signature:____________________________
(Sign exactly as your name appears on the front of this Note)
Signature Guarantee:
