Exhibit 4.2
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE. IT MAY NOT BE SOLD OR OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THAT ACT AND SUCH LAWS OR UNLESS SUCH
TRANSFER IS MADE PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
EFTC CORPORATION
July 14, 2000
SENIOR SUBORDINATED EXCHANGEABLE NOTE
DUE JUNE 30, 2006
No: 0002 U.S. $14,000,000
EFTC CORPORATION, a Colorado corporation (the "Company"), for
value received, promises to pay to the order of XXXXXX-XXXX FUNDING, L.L.C., a
Delaware limited liability company ("Holder"), or its registered successors or
assigns, on June 30, 2006 (or such earlier date as this Note shall become
payable), the principal amount of $14,000,000 (or such lesser or greater
principal amount as is then unpaid) and to pay interest (computed on the basis
of a 360-day year of twelve 30-day months) on the unpaid principal amount hereof
(and on the principal balance of any PIK Note (as defined in Section 10)) at the
rate of 15.00% per annum, compounded quarterly, commencing on the date hereof
for this Note (and on the date of issuance for any PIK Note).
1. Payment of Principal and Interest.
The principal of, together with all accrued and unpaid
interest on, this Note shall be due and payable on June 30, 2006. Interest shall
accrue in arrears on September 30, December 31, March 31 and June 30 of each
year, commencing July 14, 2000, and be added to the principal amount of this
Note or, at the option of the Company, shall be paid by issuance of a PIK Note,
until the principal amount hereof (and the principal amount of any PIK Note)
shall have been paid in full. Notwithstanding the foregoing, if the Shareholder
Approval (as defined in that certain Securities Purchase Agreement, dated as of
March 30, 2000, as amended, by and between the Company and Holder (the "Purchase
Agreement")) is not obtained by September 30, 2000 (the "Approval Date"), then
interest on all unpaid amounts outstanding hereunder from and after such date
(or under any PIK Note) (including overdue installments of principal or
interest) shall be payable at the rate of 20.00% per annum, compounded quarterly
(to the extent permitted by applicable law). The Company may treat the Person in
whose name this Note is registered as the owner hereof for the purpose of
receiving payment and for all other purposes. The principal and interest on this
Note (and on any PIK Note) is payable when due in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts by federal funds bank wire transfer. Certain
capitalized terms shall have the meanings specified in Section 10 hereof. This
Note is issued under and pursuant to, and subject to the terms and conditions
of, the Purchase Agreement.
2. Exchange.
Upon the consummation of a Successful Tender Offer (as defined
in the Purchase Agreement), the Notes shall automatically be exchanged for
shares of Convertible Preferred Stock ("Preferred Stock"), having an aggregate
liquidation preference equal to the aggregate principal amount of Notes then
outstanding, plus accrued interest. The rights and preferences of the Preferred
Stock shall be as set forth in articles of amendment to the Company's articles
of incorporation in the form attached as Exhibit G to the Purchase Agreement.
3. Optional Redemption.
If the Shareholder Approval is not obtained on or prior to the
Approval Date, the Company may redeem the Notes, in whole or in part, by paying
a redemption price equal to 108% of the principal amount of the Notes so being
redeemed, plus accrued and unpaid interest to the redemption date.
4. Mandatory Redemption.
The Company will be obligated to redeem the Notes, at the
option of the Holders of a majority in principal amount of the Notes of the
Holders, in whole or in part, at a redemption price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest to the redemption
date upon a Change of Control or a Financing Redemption Event (each a "Mandatory
Redemption Event").
5. Redemption Procedures.
(a) If fewer than all of the principal of and accrued interest on the Notes are
to be redeemed, the Company shall redeem a pro rata portion of each Note then
outstanding.
(b) At least 30 days but not more than 60 days before a redemption pursuant to
Section 3, the Company shall mail a notice of redemption to each Holder whose
Notes are to be redeemed. The notice shall: (i) identify the Notes to be
redeemed and shall state the redemption date; (ii) state the redemption price;
(iii) indicate, if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date, upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion will be issued; (iv) state that Notes called for
redemption must be surrendered to the Company to collect the redemption price;
and (v) state that interest on the Notes called for redemption ceases to accrue
on and after the redemption date, unless the Company has defaulted on the
payment of the redemption price.
(c) In the event a Mandatory Redemption Event shall occur, at the sole option of
the Holders of a majority in principal amount of the Notes, Holders may elect to
have the Company mandatorily redeem Notes pursuant to Section 4 by mailing a
notice of such election to the Company within 60 days of the occurrence of such
Mandatory Redemption Event. The notice shall: (i) identify the Notes to be
redeemed and shall state the date upon which the Mandatory Redemption Event
occurred; (ii) state the redemption date (as set forth in subsection (d)); and
(iii) indicate, if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date, upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion will be issued.
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(d) The redemption date with respect to any redemption effected in the case of a
Mandatory Redemption Event shall be a date not earlier than the fifth day nor
later than the 30th day following the receipt by the Company of the notice
thereof pursuant to Section 5(c).
(e) Once notice of redemption is given, Notes called for redemption become due
and payable on the redemption date at the redemption price.
(f) Upon surrender of a Note that is redeemed in part, the Company shall issue a
new Note equal in principal amount to the unredeemed portion of the Note
surrendered.
6. Subordination.
(a) Agreement to Subordinate.
The Company and Holders agree that the indebtedness evidenced
by this Note is subordinated in right of payment, to the extent and in the
manner provided in this Section 6, to the prior payment in full, in cash, of all
Senior Debt (as defined below), (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed), and that the subordination
is for the benefit of the holders of Senior Debt.
A distribution may consist of cash, securities or other
property, by set-off or otherwise.
(b) Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, in an assignment for the benefit of creditors or any marshalling of
the Company's assets and liabilities:
(i) holders of Senior Debt shall be entitled to receive payment in full, in
cash, of all obligations due in respect of such Senior Debt (including interest
after the commencement of any such proceeding at the rate specified in the
applicable Senior Debt) before any Holder shall be entitled to receive any
payment with respect to its Note (except that Holders may receive Permitted
Junior Securities); and
(ii) until all obligations with respect to Senior Debt (as provided in
subsection (i) above) are paid in full, in cash, any distribution to which
Holders would be entitled but for this Section 6 shall be made to holders of
Senior Debt (except that Holders may receive Permitted Junior Securities), as
their interests may appear.
(c) Default on Senior Debt.
(i) The Company may not make any payment or distribution to any Holder in
respect of obligations with respect to the Note and may not acquire from any
Holder any loans for cash or property (other than Permitted Junior Securities)
and no Holder may accept or retain any such payments until all principal and
other obligations with respect to the Senior Debt have been paid in full, in
cash, if:
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(A) a default in the payment of any principal or other obligations with respect
to Senior Debt occurs and is continuing beyond any applicable grace period in
the agreement, indenture or other document governing such Senior Debt; or
(B) a default, other than a payment default, on Senior Debt occurs and is
continuing that permits holders of the Senior Debt to accelerate its maturity
and the Company receives a notice of the default (a "Payment Blockage Notice").
If the Company and the Holder Representative receive from the Agent under the
Credit Agreement any such Payment Blockage Notice, no subsequent Payment
Blockage Notice shall be effective for purposes of this Section 6(c) unless and
until at least 360 days shall have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice. No nonpayment default that existed or
was continuing on the date of delivery of any Payment Blockage Notice to the
Company shall be, or be made, the basis for a subsequent Payment Blockage Notice
unless such nonpayment default shall have been waived for a period of not less
than 180 days or unless the holder of the Senior Debt was not aware of such
default.
The Company may and shall resume payments on and distributions
in respect of the Notes and the Holder may receive and retain the same upon the
earlier of:
(1) the date upon which the default is cured or waived, or
(2) in the case of a default referred to in Section 6(c)(ii)
hereof, 179 days pass after notice is received if the maturity of such Senior
Debt has not been accelerated,
if this Section 6 otherwise permits the payment or distribution at the time of
such payment or distribution.
(ii) No Holder may take any actions to enforce any of its
available remedies upon the occurrence of a Default or an Event of Default, for
a period of 90 days following the receipt by the Company and the Holder
Representative of a notice from the Agent under the Credit Agreement of any
default with respect to the Senior Debt; provided, that such 90 day period shall
immediately end in the event (x) of a Default under Section 8(a)(i)(G) or (H),
(y) the Senior Debt is accelerated in accordance with its terms, or (z) the
holders of the Senior Debt act to enforce their available remedies upon the
occurrence of a default on the Senior Debt.
(d) Acceleration of Securities.
If the Note is accelerated because of an Event of Default, the
Company shall promptly notify holders of Senior Debt of the acceleration.
(e) When Distribution Must Be Paid Over.
In the event that Holder receives any payment of any
obligations with respect to the Note at a time when such payment is prohibited
by Section 6(c) hereof, such payment shall be held by the Holder in trust for
the benefit of, and shall be paid forthwith over and delivered, upon written
request, to, the holders of Senior Debt under the Senior Debt Documents pursuant
to which Senior Debt may have been issued, as their respective interests may
appear, for application to the payment of all obligations with respect to Senior
Debt remaining unpaid to the extent necessary to pay such obligations in full,
in cash, in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.
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(f) Notice by Company.
The Company shall promptly notify the Holders of any facts
known to the Company that would cause a payment of any obligations with respect
to the Note to violate this Section 6, but failure to give such notice shall not
affect the subordination of the Note to the Senior Debt as provided in this
Section 6.
(g) Subrogation.
After all Senior Debt is paid in full, in cash, and until the
Note is paid in full, the Holders shall be subrogated (equally and ratably with
all other indebtedness pari passu with the Note) to the rights of holders of
Senior Debt to receive distributions applicable to Senior Debt and all other
rights, claims and collateral security of the holders of Senior Debt to the
extent that distributions otherwise payable to the Holders have been applied to
the payment of Senior Debt. A distribution made under this Section 6 to holders
of Senior Debt that otherwise would have been made to the Holders is not, as
between the Company, on one hand, and the Holder, on the other hand, a payment
by the Company on Senior Debt.
(h) Relative Rights.
This Section 6 defines the relative rights of the Holders and
holders of Senior Debt. Nothing in this Note shall:
(a) impair, as between the Company, on one hand, and the
Holders, on the other hand, the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the Note in accordance with
its terms;
(b) affect the relative rights of the Holders and
creditors of the Company other than their rights in relation to holders of
Senior Debt; or
(c) prevent any lender from exercising its available remedies
upon a Default or Event of Default, subject to the rights of holders of Senior
Debt to receive distributions and payments otherwise payable to the lenders, and
except as set forth in Section 6(c)(ii) above.
If the Company fails because of this Section 6 to pay
principal of or interest on the Note on the Payment Date, the failure is still a
Default or Event of Default.
(i) Subordination May Not Be Impaired by the Company.
No right of any holder of Senior Debt to enforce the
subordination of the indebtedness evidenced by any loans shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or Holders to comply with the terms of this Note.
(j) Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their representative.
Upon any payment or distribution of assets of the Company
referred to in this Section 6 the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction or upon any
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certificate of such representative or of the liquidating trustee or agent or
other Person making any distribution to the Holders for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Debt and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Section 6.
(k) Authorization to Effect Subordination.
The Holders authorize and direct the Company to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in this Section 6.
(l) Amendments.
The provisions of this Section 6 shall not be amended or
modified without the written consent of the holders of all Senior Debt.
7. Covenants.
The Company covenants and agrees that so long as this Note
shall be outstanding:
(a) Payment of Notes; Satisfaction of Obligations.
(i) The Company shall pay the principal of and interest on the Notes on
the dates and in the manner provided in the Notes.
(ii) If there has occurred and is continuing any Event of Default, defined
below, under Sections 8(a)(i)(A) or 8(a)(i)(B) hereof, then to the extent
lawful, the Company shall pay interest (including interest accruing after the
commencement of any proceeding under any Bankruptcy Law) on all unpaid amounts
outstanding under the Notes (including overdue installments of principal or
interest) at a rate of interest equal to the then current rate of interest plus
2%, compounded quarterly.
(iii) Subject to performance by all other parties thereto of their respective
obligations thereunder, the Company shall satisfy in all material respects all
of its obligations under the Transaction Documents.
(b) Commission Reports, Financial Reports. The Company shall deliver to the
Holders within 15 days after it files them with the Commission copies of any
annual reports and any information, documents and other reports that the Company
is required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act.
(c) Compliance Certificate. The Company shall deliver to the Holders, within 45
days after the end of each fiscal quarter and within 90 days after the end of
each fiscal year of the Company an Officers' Certificate stating that a review
of the activities of the Company and its subsidiaries during the preceding
fiscal quarter or fiscal year has been made with a view to determining whether
the Company has kept, observed, performed and fulfilled its obligations under
this Agreement, and further stating, as to each such officer signing such
certificate, that to his knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Agreement (or, if a Default
or Event of Default shall have occurred, describing all such Defaults or Events
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of Default of which he may have knowledge) and that to his knowledge no event
has occurred and remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Notes in accordance with their
terms are prohibited or if such event has occurred, a description of the event.
So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, the Officers' Certificate
accompanying the fiscal year end financial statements delivered pursuant to this
Section 7 shall be accompanied by a written statement of independent public
accountants (which shall be one of the "Big Five" accounting firms) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention which would lead them to believe that the
Company has violated any provisions of this Note or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation. The
Company will deliver to the Holders, forthwith upon becoming aware of (i) any
Default or Event of Default or (ii) any event of default under any other loan
agreement, mortgage, indenture or instrument referred to in Section 6, an
Officers' Certificate specifying in reasonable detail such Default, Event of
Default or default and the nature of any remedial or corrective action the
Company proposes to take with respect thereto.
(d) Stay, Extension and Usury Laws. The Company covenants and agrees (to the
extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter
enforced, that may affect the covenants or the performance of its obligations
under this Note; and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Holders, but will suffer and permit the
execution of every such power as though no such law has been enacted.
(e) Limitation on Restricted Payments. The Company shall not, directly or
indirectly:
(i) declare or pay any dividend on, or make any distribution to the
holders (as such) in respect of, any shares of its capital stock.
(ii) purchase, redeem or otherwise acquire or retire for value any Equity
Interest of the Company or any subsidiary of the Company (other than any such
Equity Interest of a directly or indirectly wholly-owned subsidiary of the
Company) or other Affiliate of the Company;
(iii) permit any subsidiary of the Company to declare or pay any dividend on, or
make any distribution to the holders (as such) in respect of, any shares of its
capital stock except to the Company or another directly or indirectly
wholly-owned subsidiary of the Company; or
(iv) permit any subsidiary of the Company to purchase, redeem or otherwise
retire for value any Equity Interests of it, the Company or any Affiliate the
Company (other than any such Equity Interests owned by the Company or any other
directly or indirectly wholly owned subsidiary of the Company).
(f) Corporate Existence. The Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate existence of each of its subsidiaries in accordance with the
respective organizational documents of each of them and the corporate rights
(charter and statutory), licenses and franchises of the Company and its
subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or corporate existence, if the
7
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and its
subsidiaries taken as a whole and that the loss thereof will not cause a
Material Adverse Effect.
(g) Taxes. The Company shall, and shall cause its subsidiaries to, pay prior to
delinquency all material taxes, assessments and governmental levies except as
contested in good faith and by appropriate proceedings.
(h) Investment Company Act; United States Real Property Holding Corporation.
Neither the Company nor any of its subsidiaries shall become an investment
company subject to registration under the Investment Company Act of 1940, as
amended. Neither the Company nor any of its subsidiaries shall become a United
States real property holding corporation as defined in Section 897(c)(2) of the
Internal Revenue Code of 1986, as amended.
(i) Limitation on Additional Indebtedness. The Company will not, and will not
permit any of its subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become or remain directly or indirectly liable
with respect to any Indebtedness other than (A) the Indebtedness represented by
the Notes, (B) Senior Debt, (C) Indebtedness represented by a Promissory Note
dated March 30, 2000 payable to the Xxxxxxx Family Limited Partnership I in the
principal amount of $3,000,000, and (D) other Indebtedness in aggregate
principal amount of no greater than $5,000,000.
(j) Limitation on Transactions With Affiliates.
(i) Neither the Company nor any of its subsidiaries shall sell, lease, transfer
or otherwise dispose of any of its properties or assets to or purchase any
property or assets from, or enter into any contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit of, an Affiliate of the
Company (but specifically excluding for these purposes Holders and their
respective Affiliates) (an "Affiliate Transaction"), except on terms that are no
less favorable to the Company or the relevant subsidiary than those that could
have been obtained in a comparable transaction by the Company or such subsidiary
from an unrelated person; provided, however, that the Company and its
wholly-owned subsidiaries may engage in any sale, lease, transfer, or other
disposition of property among themselves and may enter into any contract,
agreement, understanding, loan, advance or guarantee among themselves.
(ii) In addition, neither the Company nor any subsidiary may enter into an
Affiliate Transaction or series of related Affiliate Transactions involving or
having a potential value of more than $1,000,000 unless such transaction has
been approved by the holders of at least a majority in principal amount of the
Notes such approval not to be unreasonably withheld; provided, however, that the
Company and its wholly-owned subsidiaries may engage in any sale, lease,
transfer, or other disposition of property among themselves and may enter into
any contract, agreement, understanding, loan, advance or guarantee among
themselves.
(k) Restrictions on Liens. The Company will not itself, and will not permit any
subsidiary, to create or suffer to exist any Liens upon any assets of the
Company or any subsidiary or any shares of capital stock of any subsidiary, in
either case now owned or hereafter acquired; provided, however, that this
Section 7(k) shall not prohibit the creation or continuing existence of any
Permitted Liens.
(l) Sale of Assets.
(i) Neither the Company nor any of its subsidiaries shall, without the consent
of the holders of at least a majority in principal amount of the Notes, sell,
lease, convey or otherwise dispose (whether in one transaction or a series of
8
transactions) of any assets (including capital stock of any subsidiaries), other
than sales of inventory in the ordinary course of business (an "Asset Sale"), if
the aggregate net proceeds of all Asset Sales during any fiscal year exceed
$2,000,000; excluding payments under the GECC Payment Agreement.
(ii) Neither the Company nor any of its subsidiaries shall, without the consent
of the holders of at least a majority in principal amount of the Notes, enter
into any Asset Sale if the consideration paid is less than the fair market value
of such asset; provided, however, that assets with a fair market value of not
greater than $2,000,000 in the aggregate may be sold during any fiscal year
without regard to the foregoing requirement if the amount of consideration
received for such assets is promptly applied to the purchase of comparable
assets.
(iii) At least 90% of the consideration for each Asset Sale received by the
Company or such subsidiary shall be in the form of cash; provided, however, that
the amount of (A) any liabilities (as shown on the Company's or such
subsidiary's most recent balance sheet or in the notes thereto) of the Company
or any subsidiary that are assumed by the transferee of any such assets or stock
sold, leased, conveyed or disposed of and (B) any notes or other obligations
received by the Company or any subsidiary from such transferee that are
immediately converted by the Company or such subsidiary into cash, shall be
deemed to be cash for purposes of this Section 7(l)(iii).
(m) Ownership of Subsidiaries. Except as permitted by Section 7(l) above, the
Company shall maintain (along with one or more subsidiaries in the case of an
indirect subsidiary) good and valid title to those Equity Interests of each of
its subsidiaries owned by it, free and clear of any Lien other than Permitted
Liens. Notwithstanding the provisions of Section 7(l) above, neither the Company
nor any subsidiary shall dispose of the capital stock of any subsidiary, if,
after giving effect to such disposition, the Company would own less than a
majority of the outstanding economic and voting interests in such subsidiary or
former subsidiary.
(n) Minimum Performance Target. The Company shall furnish to the Holders an
Officers' Certificate within 90 days after the end of the Company's fiscal year
ending in 2002 (the "2002 EBITDA Notice"), setting forth the Company's EBITDA
for its previous fiscal year. The 2002 EBITDA Notice shall be audited in
accordance with GAAP and the terms of this Note by the Company's independent
auditors which shall be a "Big Five" accounting firm and shall contain a written
statement that, in making the examination necessary for certification of the
2002 EBITDA Notice, nothing has come to their attention which would lead them to
believe that the Company's EBITDA for the fiscal year ending in 2002 is not
correctly stated in the 2002 EBITDA Notice, or, if the EBITDA is incorrectly
stated, the basis of their belief regarding such incorrect statement.
(o) Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries. Except as otherwise provided herein or in the Senior Debt
Documents, the Company will not, and will not permit any subsidiary to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any consensual encumbrance or restriction on the ability of any subsidiary of
the Company to (a) pay dividends or make any other distributions on its capital
stock or any other interest or participation in, or measured by, its profits
owned by, or pay any Indebtedness owed to, the Company or a subsidiary of the
Company, (b) make loans or advances to the Company or a subsidiary of the
Company or (c) transfer any of its properties or assets to the Company or to any
subsidiary of the Company, except for such encumbrances or restrictions existing
9
under or by reason of (i) any restrictions, with respect to a subsidiary of the
Company that is not a subsidiary of the Company on the date hereof, in existence
at the time such Person becomes a subsidiary of the Company; or (ii) any
restrictions existing under any agreement that refinances or replaces the
agreements containing the restrictions in clause (i); provided that the terms
and conditions of any such restrictions are no less favorable to the Holders
than those under or pursuant to the agreement evidencing the Indebtedness
refinanced. Nothing contained in this Section 7(p) shall prevent the Company or
any of its subsidiaries from entering into any agreement permitting or providing
for the incurrence of Liens otherwise permitted by Section 7(k).
(p) Compliance with Laws. The Company will, and will cause its subsidiaries to,
comply with all federal, state, local or foreign statutes, ordinances,
governmental rules and regulations, judgments, orders and decrees to which any
of them is subject, and obtain and keep in effect all licenses, permits,
franchises and other governmental authorizations necessary to the ownership or
operation of their respective properties or the conduct of their respective
businesses, except to the extent that the failure to so comply or obtain and
keep in effect would not have a Material Adverse Effect.
(q) When Company May Merge, Etc.
(i) The Company will not merge with or into, or sell, convey, or transfer, or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to any Person or permit any Person to merge with or into
the Company, unless:
(A) either the Company shall be the continuing Person
or the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that
acquired such property and assets of the Company shall be an
entity organized and validly existing under the laws of the
United States of America or any state or jurisdiction thereof
and shall expressly assume, by amendments to this Note,
executed and delivered to Holder, all of the obligations of
the Company, on this Note;
(B) immediately after giving effect, on a pro forma
basis, to such transaction, no Default or Event of Default
shall have occurred and be continuing; and
(C) the Company will have delivered to the Holders of
a majority in principal amount of the Notes an Officers'
Certificate and an opinion of counsel, in each case stating
that such consolidation, merger or transfer and such
supplemental indenture complies with this provision and that
all conditions precedent provided for herein relating to such
transaction have been complied with.
(ii) Upon any consolidation or merger or any transfer of all or substantially
all of the assets of the Company, in accordance with Section 7(q)(i), the
successor Person formed by such consolidation or into which the Company is
merged or to which such transfer is made, shall succeed to, be substituted for,
and may exercise every right and power of the Company under this Note with the
same effect as if such successor Person had been named therein as the Company
and the Company shall be released from the obligations under this Note.
(r) Office or Agency. The Company will maintain an office or agency in
metropolitan Denver, Colorado (or in any future principal place of business of
the Company with respect to which the Holder has been notified pursuant to
Section 9.1 of the Purchase Agreement) where notices, presentations and demands
to or upon the Company in respect of this Note may be given or made.
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(s) Directors. The Company's Board of Directors shall at all times be composed
of no more than 12 directors unless approved by Holders of a majority in
principal amount of the Notes. At all times during the term of this Note,
Holders of a majority in principal amount of the Notes shall have the right to
designate an aggregate of two persons for election as members of the Board of
Directors of the Company (or up to an aggregate of four persons pursuant to
Section 8(c)(iii) upon the occurrence of an Event of Default). Holder hereby
acknowledges that its two designees have been appointed to the Company's Board
of Directors as of the date of the issuance of this Note. The Company agrees to
put such appointees up for election at the next meeting of shareholders called
for the election of directors, all in accordance with the Company's Bylaws. The
Company hereby further agrees to call annual shareholders' meetings for the
election of directors and to recommend that the Company's shareholders votes in
favor of director-nominees of the Holders, if any, at any such meeting called
for election of directors; provided, that the Board of Directors of the Company
shall not be required to recommend for shareholder vote any person whom the
Board of Directors has reasonably concluded after further due inquiry lacks the
requisite moral fitness to sit on the Board of Directors. The Company agrees
that the members of the Board of Directors nominated by the Holders shall be
appointed to each committee of the Board of Directors, including, but not
limited to, the compensation committee; provided, that both such persons need
not be appointed to the audit committee if such appointments would cause a
breach of the continued listing requirements for the Common Stock on the Nasdaq
Stock Market.
(t) Approval of Significant Transactions. The Company shall not engage in any
Significant Transaction, without the prior written approval of the Holders of a
majority in principal amount of the Notes. For purposes of this Section 7(t), a
"Significant Transaction" means (i) one or a series of related transactions, in
which the Company obtains debt financing (excluding the Senior Debt) in an
aggregate amount in excess of $1,000,000, (ii) any Material Acquisition or
Material Disposition, or (iii) any adoption of, or amendment to, any Incentive
Compensation Plan. A "Material Acquisition" means any acquisition (directly or
indirectly) (whether by merger, purchase of securities, purchase of assets or
otherwise) by the Company or any subsidiary of the Company, involving aggregate
consideration with a value of $2,000,000 or more; provided, that a Material
Acquisition shall not include capital expenditures made in the ordinary course
of business. A "Material Disposition" means any sale, transfer or other
disposition of assets of the Company (whether by merger, sale of stock, sale of
assets or otherwise) or its subsidiaries which assets either (A) have a fair
market value of $2,000,000 or more, or (B) represent more than 5% of the lesser
of net book value or fair market value of the tangible assets of the Company on
a consolidated basis. An "Incentive Compensation Plan" means any arrangement,
policy or plan of the Company providing for deferred compensation,
profit-sharing bonuses, stock appreciation rights, stock purchases or other
forms of incentive compensation to any director, employee, former employee,
consultant, advisor or agent of the Company which by its terms results, or but
for deferral would result, in cash payments by the Company to such person.
(u) Certain Payments. The Company shall comply with the requirements of the
Foreign Corrupt Practices Act and neither the Company nor any director, officer,
agent, or employee of the Company, or any other Person associated with or acting
for or on behalf of the Company shall directly or indirectly (i) make any
contribution, gift, bribe, payoff, influence payment, kickback, or other payment
to any governmental official, regardless of form, whether in money, property, or
services (A) to obtain favorable treatment in securing business, (B) to pay for
favorable treatment for business secured, or (C) to obtain special concessions
11
or for special concessions already obtained, for or in respect of the Company or
any Subsidiary of the Company, (ii) make any contribution, gift, bribe, payoff,
influence payment, kickback, or other payment to any person, private or public,
regardless of form, whether in money, property, or services, in violation of any
law, or (iii) establish or maintain any fund or asset that is not recorded in
the books and records of the Company.
8. Defaults and Remedies.
(a) Events of Default.
(i) An "Event of Default" occurs if:
(A) the Company defaults in the payment of the principal of or accrued
interest on any Note when the same becomes due and payable at maturity,
upon redemption or otherwise;
(B) the Company fails to comply in any material respect with any of the
agreements, covenants, or provisions of the Notes and the Default
continues for the period and after the notice specified below;
(C) the Company fails to comply in any material respect with any of the
agreements, covenants, or provisions of the Warrants and the Default
continues for the period and after the notice specified below;
(D) if any of the representations or warranties of the Company made in or
in connection with this Note or the Purchase Agreement were untrue when
made in any respect materially adverse to the Company and its
subsidiaries taken as a whole;
(E) an event of default occurs under any loan agreement, note, mortgage,
indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness of the Company or
any subsidiary for borrowed money (or the payment of which is
guaranteed by the Company or a subsidiary), whether such Indebtedness
or guarantee now exists or shall be created hereafter, which default
results in the acceleration of such Indebtedness prior to its expressed
maturity and the principal amount of such Indebtedness, together with
the principal amount of any other such Indebtedness the maturity of
which is so accelerated and has not been paid, aggregates $500,000 or
more;
(F) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the
Company or any subsidiary of the Company and such remains undischarged
for a period (during which execution shall not be effectively stayed)
of 30 days, provided that the aggregate of all such judgments exceeds
$1,000,000;
(G) The Company or any subsidiary pursuant to or within the meaning of any
Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it in an
involuntary case,
(3) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
12
(4) makes a general assignment for the benefit of its creditors, or
(5) generally is unable to pay its debts as the same become due;
(H) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(1) is for relief against the Company or any of its subsidiaries in an
involuntary case,
(2) appoints a Custodian of the Company or any of its subsidiaries or
for all or substantially all of its property, or
(3) orders the liquidation of the Company or any of its subsidiaries,
and the order or decree remains unstayed and in effect for 60 days; or
(I) the 2002 EBITDA Notice is not delivered to Holder within 90 days of
the end of the Company's fiscal year that ends in 2002; or
(J) the 2002 EBITDA Notice indicates that the Company failed to meet the Minimum
Performance Target.
(ii) The term "Bankruptcy Law" means title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
(iii) A Default under clause (B) or (C) (other than a Default under Section
7(e), (i), (l), (m), or (q), which Default shall be an Event of Default without
the notice or passage of time specified in this paragraph), (E) (other than a
Default resulting from the acceleration of any indebtedness described therein,
which Default shall be an Event of Default without the notice or passage of time
specified in this paragraph) or (F) is not an Event of Default until the Holders
of at least 20% in principal amount of the Notes notify the Company of the
Default and the Company does not cure the Default within 30 days after receipt
of the notice. The notice must specify the Default, demand that it be remedied
and state that the notice is a "Notice of Default".
(b) Acceleration of Notes.
(i) If an Event of Default (other than an Event of Default specified in clauses
(G), (H), (I) and (J) of Section 8(a)(i)) occurs and is continuing, the Holders
of 20% in principal amount of the Notes, by notice to the Company, may declare
the unpaid principal of and any accrued interest on all the Notes to be due and
payable. Immediately upon such declaration, the principal and interest shall be
due and payable. If an Event of Default specified in clause (G) or (H) of
Section 8(a)(i) occurs, such an amount shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
any holder. The Holders of at least a majority in principal amount of the then
outstanding Notes by notice to the Company may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration.
13
(ii) If an Event of Default specified in clauses (I) or (J) of Section 8(a)(i)
occurs the Company shall pay in full the principal of and accrued interest on
the Notes to the Holders thereof by no later than September 30, 2003. If the
Company has not paid in full all principal of and accrued interest on the Notes
by September 30, 2003 the Notes shall thereafter be due and payable and in
continuing Default and from and after such date interest on the Notes shall
accrue and be payable at the Default Rate.
(c) Other Remedies.
(i) If an Event of Default occurs and is continuing, holders of the Notes may
pursue any available remedy to collect the payment of principal or interest on
the Notes or to enforce the performance of any provision of the Notes.
(ii) A delay or omission by any holder of any Notes in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
(iii) If an Event of Default occurs and is continuing, the Company agrees, at
the request of the holders of a majority in principal amount of the Notes, to
have two vacancies made on the Board of Directors, to fill such two vacancies
with designees named by such Holders and to take such actions as are necessary
to have such newly appointed directors elected to the Board of Directors by the
shareholders of the Company, including, if necessary, to call a special meeting
of shareholders and to recommend the election of such directors by the
shareholders.
(d) Waiver of Past Defaults.
The holders of at least a majority in principal amount of the
then outstanding Notes by notice to the Company may waive an existing Default or
Event of Default and its consequences except a continuing Default or Event of
Default in the payment of the principal of or interest on any Notes.
(e) Rights of Holder to Receive Payment.
Notwithstanding any other provision of this Agreement, the
right of any Holder of a Note to receive payment of principal and interest on
the Note, on or after the respective due dates expressed in the Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
(f) Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Agreement, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
9. Modification of Notes.
The Notes may be modified without prior notice to any Holder
but with the written consent of the Company and the Holders of a majority in
principal amount of the Notes then outstanding. The Holders of a majority in
14
principal amount of the Notes then outstanding may waive compliance by the
Company with any provision of the Notes, or give any consent or approval
required or provided for under the terms of the Notes, without prior notice to
any Holder. However, without the consent of each Holder affected, an amendment,
supplement or waiver may not (a) alter the amount of Notes whose Holders must
consent to an amendment, supplement or waiver, (b) alter the rate or the time
for payment of interest on any Note, (c) alter the principal or the maturity of
any Note or alter the redemption or prepayment provisions with respect thereto
or (d) make any Note payable in money or property other than as stated in the
Notes.
10. Definitions.
The terms defined in this Section 10 shall, for all purposes
of this Note, have the meanings herein specified, unless the context otherwise
requires.
"Affiliate" means with respect to a Person, any other Person
that directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. For the purposes of
this definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise.
Without limiting the foregoing, all directors and executive officers of a Person
that is a corporation, all managing members of a Person that is a limited
liability company, and all general partners of a partnership, shall be deemed
Affiliates of such Person for all purposes hereunder.
"Change of Control" shall be deemed to have occurred if, at
any time, (i) any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) other
than the Holders and each of their respective Affiliates, in the aggregate,
becomes the "beneficial owners" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of 33% or more of the outstanding shares of Common
Stock of the Company or has the ability to cause 25% or more of the Board of
Directors to be composed of its nominees, (ii) Xxxxxxx Xxxxxxxx, Xxxx Xxxxxx and
any other directors elected or appointed to the Company's Board of Directors
pursuant to Section 7(s) cease for any reason to be members of Board of
Directors and the Holders do not have the ability to designate their
replacements or (iii) the shareholders of the Company approve, or there is
consummated without stockholder approval, a merger or consolidation of the
Company with any other entity in which the shareholders of the Company prior to
such transaction hold voting securities of the surviving entity representing 50%
or less of the total votes outstanding, a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or any
substantial portion of the Company's assets or a major division or subsidiary of
the Company.
"Commission" means the Securities and Exchange Commission.
"Company" means EFTC Corporation, a Colorado corporation.
"Consolidated Interest Expense" means, for any period, all
cash interest expense of the Borrower and its Subsidiaries (including, without
limitation, the interest component under Capital Leases and the interest
component of deferred compensation under the Retention Bonus Plan), as
determined in accordance with GAAP.
15
"Consolidated Net Income" means, for any period, the aggregate
of the Net Income of the Company and its consolidated subsidiaries for such
period, on a consolidated basis, determined in accordance with GAAP, provided
that (i) the Net Income of any Person which is not a Subsidiary of the Company
or is accounted for by the Company by the equity method of accounting shall be
included in Consolidated Net Income only to the extent of the amount of
dividends or distributions actually paid by such Person to the Company or a
Subsidiary of the Company, (ii) the Net Income of any Person acquired by the
Company in a pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded from Consolidated Net Income and (iii) the
Net Income of any Subsidiary of the Company that is subject to restrictions,
direct or indirect, on the payment of dividends or the making of distributions
to the Company shall be excluded from Consolidated Net Income to the extent of
such restrictions. "Net Income" of any Person shall mean the net income (loss)
of such Person, determined in accordance with GAAP, excluding, however, any gain
(but not loss) realized upon the sale or other disposition (including, without
limitation, dispositions pursuant to sale and leaseback transactions) of any
real property or equipment of such Person which is not sold or otherwise
disposed of in the ordinary course of business and any gain (but not loss)
realized upon the sale or other disposition of any capital stock of such Person
or a subsidiary of such Person.
"Credit Agreement" means the Loan and Security Agreement,
dated as of March 30, 2000, by and among the Financial Institutions named
therein, Bank of America, N.A., as Agent, and the Company together with any
amendment, modification or replacement thereof.
"Default" means any event which is, or after notice or
passage of time would be, an Event of Default.
"Default Rate" is 25% per annum compounded quarterly.
"EBITDA" means, for any period, the sum of the Company's (i)
Consolidated Net Income for such period, plus (ii) an amount which, in the
determination of Consolidated Net Income for such period, has been deducted for
(A) Consolidated Interest Expense, (B) total federal, state, local and foreign
income, value added and similar taxes. (C) losses (or minus gains) on the sale
or disposition of assets outside the ordinary course of business, (D)
depreciation, amortization expense and other non-cash charges, all as determined
in accordance with GAAP and (E) amounts paid in respect of management fee to the
extent permitted hereunder.
"Equity Interest" means any capital stock or warrants, options
or other rights to acquire capital stock (but excluding any debt security which
is convertible into, or exchangeable for, capital stock).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Event of Default" shall have the meaning provided in Section
6.
"Failure to Approve the Transactions" shall mean that the
holders of the Common Stock of the Company do not vote to approve the
Transactions at the Shareholders Meeting (as such term is defined in the
Purchase Agreement).
"Financing Redemption Event" means any sale or sales of equity
securities by the Company made in one or a series of related transactions, which
taken together, result in a total, aggregate offering price of more than
$50,000,000.
16
"GAAP" means United States generally accepted accounting
principles, in effect from time to time, consistently applied.
"GECC Payment Agreement" means that certain Agreement, dated
December 5, 1997, between General Electric Capital Corporation and the Company,
regarding the GE Capital Accelerated Payment Program.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Company's books and any permitted transferee thereof.
"Holder Representative" means the person designated as such by
the Holders of a majority in aggregate principal amount of the Notes, with
notice thereof provided in writing to the Agent under the Credit Agreement.
"Indebtedness" means, as to any Person: (a) all obligations,
whether or not contingent, of such Person for borrowed money (including, without
limitation, reimbursement and all other obligations with respect to surety
bonds, letters of credit and bankers' acceptances, whether or not matured), (b)
all obligations of such Person evidenced by notes, bonds, debentures or similar
instruments, (c) all obligations of such Person representing the balance of
deferred purchase price of property or services, except trade accounts payable
and accrued commercial or trade liabilities arising in the ordinary course of
business, (d) all interest rate and currency swaps, caps, collars and similar
agreements or hedging devices under which payments are obligated to be made by
such Person, whether periodically or upon the happening of a contingency, (e)
all indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (f)
all obligations of such Person under leases which have been or should be, in
accordance with GAAP, recorded as capital leases, (g) all obligations of such
Person under operating leases in excess of $15,000,000, (h) all indebtedness
secured by any Lien (other than Liens in favor of lessors under leases other
than leases included in clauses (f) and (g)) on any property or asset owned or
held by that Person regardless of whether the indebtedness secured thereby shall
have been assumed by that Person or is non-recourse to the credit of that
Person, and (i) all Indebtedness of any other Person referred to in clauses (a)
through (g) above, guaranteed, directly or indirectly, by that Person.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, encumbrance, lien (statutory or other) or other
security interest of any kind or nature whatsoever (excluding preferred stock or
equity related preferences) including, without limitation, those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease obligation, or any
financing lease having substantially the same economic effect as any of the
foregoing.
"Material Adverse Effect" means any material adverse change in
the assets, business or financial condition of the Company.
"Minimum Performance Target" means, for fiscal year 2002, an
EBITDA of $25,000,000.
"Note" shall mean this Note as defined in Section 1 together
with all PIK Notes issued in connection thereto.
17
"Officers' Certificate" means a certificate signed by any two
officers of the Company, one of whom must be the chief executive officer, the
chief financial officer or chief accounting officer of the Company.
"Permitted Junior Securities" means equity interests in the
Company.
"Permitted Liens" means (i) Liens for taxes, governmental
charges or levies which (a) are not yet due and payable, or (b) are being
diligently contested in good faith by appropriate proceedings; provided, that
for any such taxes being diligently contested in good faith, the Company has set
aside adequate reserves, (ii) Liens imposed by law, such as mechanic's,
materialman's, landlord's, warehouseman's and carrier's liens, securing
obligations incurred in the ordinary course of business which are not yet
overdue or which are being diligently contested in good faith by appropriate
proceeding and, with respect to such obligations which are being contested, for
which the Company has set aside adequate reserves, (iii) Liens securing Senior
Debt, (iv) Liens which (x) secure obligations of less than $15,000,000 in the
aggregate and (y) do not, individually or in the aggregate, interfere with the
use and enjoyment of the property subject thereto and (z) Liens created in favor
of General Electric Capital Corporation pursuant to the GECC Payment Agreement.
"Person" means any individual, partnership, corporation,
trust, unincorporated organization or government or agency or political
subdivision thereof.
"PIK Notes" means the PIK Notes issued in respect of the Notes
in lieu of cash interest, each such note requiring the accrual of interest in
accordance with the terms of this Note (including the issuance of additional PIK
Notes in respect of such interest), commencing from the date of issuance of such
note or from the date such note was deemed to have been issued, at the rate of
15.00% per annum or 20.00% per annum, as appropriate, computed on the basis of a
360-day year of twelve 30-day months, for the actual number of days elapsed and
containing terms substantially identical to this Note.
"Purchase Agreement" shall have the meaning provided in
Section 1 hereto.
The "principal" of a debt security means the principal of the
security plus, when appropriate, the premium (if any) payable on the security.
"Senior Debt" means (i) all indebtedness outstanding at any
time under the Credit Agreement, and all hedging obligations and bank products
with respect thereto, (ii) any replacement or refinancing of the Credit
Agreement which provides for borrowings by the Company up to $55,000,000 in
aggregate principal amount, and (iii) all obligations with respect to any of the
foregoing. Notwithstanding anything to the contrary in the foregoing, Senior
Debt shall not include (x) any indebtedness of the Company to any of its
subsidiaries or other affiliates, or (y) any indebtedness incurred for the
purchase of goods or materials or for services obtained in the ordinary course
of business (other than with the proceeds of revolving credit borrowings
permitted hereby).
"Senior Debt Documents" means the Credit Agreement and any
comparable documents governing other senior debt, if any.
"Transaction Documents" means collectively, the Purchase
Agreement, the Notes, the Convertible Notes, and the Warrants.
18
11. Non-Waiver.
No course of dealing between the Company and the Holder of
this Note or any delay or failure on the part of the Holder hereof in exercising
any rights hereunder shall operate as a waiver of any rights of any Holder
hereof, except to the extent expressly waived in writing by the Holder hereof.
12. Governing Law.
This Note shall be construed in accordance with and governed
by the internal laws of the State of New York.
13. Successors and Assigns.
All of the covenants, promises and agreements in this Note
shall bind the Company's successors and assigns, whether so expressed or not.
14. Assignment.
Prior to the earlier of September 30, 2000 and the Failure to
Approve the Transactions (as defined in the Purchase Agreement), Holder shall
not sell, assign or otherwise transfer this Note, except to an Affiliate of
either of Xxxxxx Equity Investors IV, L.P., TC Manufacturing Holdings, L.L.C. or
RCBA Strategic Partners, L.P. Prior to the earlier to occur of (i) the
consummation of a Successful Tender Offer (as defined in the Purchase Agreement)
and (ii) the termination of the Purchase Agreement, Holder shall not sell,
assign or otherwise transfer this Note, except to a Person who has become a
successor obligor under the Purchase Agreement to all of the obligations of the
original Holder of this Note thereunder.
15. Severability.
If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provision or
provisions held invalid, illegal or unenforceable shall substantially impair the
remaining provisions hereof.
16. Headings.
The headings of the sections and paragraphs of this Note are
inserted for convenience only and shall not be deemed to constitute a part
hereof.
19
IN WITNESS WHEREOF, the Company has caused this Note to be
signed in its name by a duly authorized officer and to be dated as of the day
and year first above written.
EFTC CORPORATION
By: /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Chairman
20
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:
