1
Exhibit 4.1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES LAWS OF ANY STATE. THIS NOTE MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE NOTE UNDER SAID ACT AND
ANY APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY TO THE EFFECT THAT NO SUCH REGISTRATION IS REQUIRED.
THIS NOTE IS SUBORDINATED TO CERTAIN SENIOR INDEBTEDNESS OF THE COMPANY. THE
HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT AMOUNTS
OWING WITH RESPECT TO THIS NOTE SHALL BE SUBORDINATED IN ACCORDANCE WITH THE
PROVISIONS OF THE AMENDED AND RESTATED SUBORDINATION AND STANDBY AGREEMENT DATED
AS OF FEBRUARY 23, 2000 AMONG THE ORIGINAL HOLDERS OF THE NOTES, BANK ONE,
TEXAS, N.A. AND THE COMPANY, AND THE HOLDER ACCEPTS AND AGREES TO BE BOUND BY
SUCH PROVISIONS.
TBM ACQUISITION I, INC.
SUBORDINATED PROMISSORY NOTE
$____________ February 23, 2000
Westport, Connecticut
TBM ACQUISITION I, INC., a Delaware corporation (the
"Company"), for value received, hereby promises to pay to
_______________________ (the "Holder"), or registered assigns, in lawful money
of the United States of America, the principal sum of
______________________________________ DOLLARS ($__________) or such lesser
principal amount as shall then be unpaid, or, if not sooner paid on February 23,
2005, together with interest (computed on the basis of the actual number of days
elapsed over a year of 360 days), which shall accrue from January 1, 2001 at a
rate of six percent (6.0%) per annum, compounded monthly, subject to adjustment
as provided herein. Interest accruing on this Note until February 1, 2002 shall
be added to principal.
2
Commencing on March 1, 2002 and thereafter on the first day of
each month occurring during the remainder of the term of this Note, the Company
shall make payments of interest as follows: (i) from March 1, 2002 through and
including February 1, 2004, at a rate of six percent (6.0%) per annum, and (ii)
from March 1, 2004 through maturity, at a rate per annum equal to the Senior
Debt Rate (as defined in the Merger Agreement) plus two percent (2.0%).
If any principal of or interest on this Note is not paid when
due, or there exists a material Event of Default, this Note shall bear interest
thereafter, until such overdue principal or interest is paid in full or such
material Event of Default is cured, at a rate per annum equal to the Senior Debt
Rate plus two percent (2.0%).
Payments of principal and interest shall be made in lawful
currency of the United States of America by check mailed and addressed to the
registered holder hereof at the address shown in the register maintained by the
Company for such purpose, or, at the option of the Holder, at such other place
in the United States of America as the Holder shall have designated to the
Company in writing.
This Note is one of the Subordinated Notes (collectively, the
"Notes") referred to in, and is entitled to the benefits and obligations of (i)
the Amended and Restated Agreement and Plan of Merger dated as of February 4,
2000 among the Company, TBM Holdings, Inc. (the "Parent"), Long Reach Holdings
Inc. ("LRH") and certain shareholders of LRH (the "Merger Agreement"), pursuant
to which LRH was merged with and into the Company on the date hereof, (ii) the
Guaranty dated as of February 23, 2000 (the "Guaranty") by the Parent in favor
of the Holder and the holders of the other Notes (collectively, the "Holders"),
and (iii) the Security Documents referred to below (the Notes, the Merger
Agreement, the Guaranty and the Security Documents being collectively referred
to as the "Note Documents").
Capitalized terms used herein without definition have the
meanings given thereto in the Merger Agreement.
The Notes may be prepaid, in whole at any time or in part from
time to time, without premium or penalty, provided that any such prepayment
shall be made pro rata among all the Notes.
This Note is a registered Note and is transferable only by
surrender hereof at the principal office of the Company in Westport,
Connecticut, duly endorsed or accompanied by a written instrument of transfer
duly executed by the registered holder of this Note or his attorney duly
authorized in writing. The Company may treat the registered holder hereof (or,
when presented duly endorsed, the holder hereof) as the absolute owner of this
Note for the purpose of
3
receiving any payments hereon and for all other purposes; and each holder from
time to time of this Note, by accepting or holding the same, consents to and
agrees with the provisions hereof.
Collateral Security for the Notes
The Notes are secured pursuant to the following security
documents (the "Security Documents"): (i) the Security Agreement dated as of
April 20, 1999, as amended as of the date hereof, by the Company (as successor
by merger to LRH) in favor of Xxxxx Associates Incorporated, as agent (the
"Agent") for the Holders, and (ii) the Subordinated Deed of Trust, Security
Agreement and Assignment of Rents and Leases dated as of April 20, 1999, as
amended as of the date hereof, by the Company (as successor by merger to LRH) in
favor of the Agent, in respect of the Company's property located at 00000 Xxxxxx
Xxxxx, Xxxxxxx, Xxxxx 00000.
Covenants of the Company
1. The Company agrees that, without the prior written consent of the
Majority Stakeholders, so long as any amounts are due and owing under the Notes,
the Company will not:
(a) incur any indebtedness or guaranty obligation which ranks pari
passu with or senior to the Notes, except for the Senior Debt and other
indebtedness which ranks pari passu (both as to payment and collateral security)
with the existing Senior Debt;
(b) sell, lease, transfer or otherwise dispose of any of its
properties, assets and rights to any person except (i) sales of inventory in the
ordinary course of business, (ii) sales or other dispositions in the ordinary
course of business of equipment which is obsolete, uneconomical or no longer
useful in its business or which is being replaced with other equipment of
substantially equal or greater utility, (iii) dispositions of obsolete
inventory, and (iv) other sales or other dispositions of property, the aggregate
fair market value of which, together with all such other property so sold or
disposed of in any 12-month period, shall not exceed 20% of the Company's
consolidated tangible assets as at the beginning of such 12-month period;
provided, that if the holder(s) of the Senior Debt (the "Senior Lender")
consents to actions of the Company set forth above in this paragraph (b), the
Holder shall be deemed to have consented to such action;
(c) (i) declare or pay, or set apart any funds for the payment of, any
dividends in any fiscal year on any shares of its capital stock ("Shares") of
the Company, (ii) apply any of its funds, property or assets to, or set apart
any funds, property or assets for, the purchase, redemption or retirement of, or
make any distribution, by reduction of capital or otherwise, in respect of any
of its Shares or other securities, whether now or hereafter outstanding, except
that any Subsidiary may from time to time declare and pay dividends to the
Company and the Company may make distributions to the Parent in order to satisfy
any tax liability of the Parent resulting solely from the operations of the
Company;
4
(d) except as provided in the next sentence of this paragraph (d),
transfer any cash or property to any Affiliate of the Company, enter into any
contract or transaction with any such Affiliate, or modify any outstanding
contract or transaction with any such Affiliate, including without limitation
the purchase, lease, sale or exchange of property or the rendering of any
service to any such Affiliate. Notwithstanding anything to the contrary
contained in this paragraph (d), without the consent of the Majority Holders the
Company may (i) pay compensation to its full-time employees (whether or not
Affiliates) in the ordinary course of business in amounts that are customary for
businesses similar to that of the Company to pay to employees with similar
responsibilities, (ii) pay compensation to any employee hired pursuant to the
Consulting Agreement with TBM Consulting, Inc., and (iii) so long as no Default
or Event of Default is in existence or would be caused thereby, pay compensation
to TBM Consulting, Inc. or to a stockholder or Affiliate of the Company who is
not an employee of the Company for services rendered in accordance with the
provisions of an agreement which is approved by a majority of the disinterested
members of the Company's Board of Directors and is on terms comparable in all
material respects to the terms which would prevail in an arm's-length
transaction between unaffiliated third parties; or
(e) make any principal payment of or interest payment on, or purchase
or acquire, or prepay, any indebtedness which is subordinate or junior to , or
pari passu with, the Notes other than trade debt, or permit any notes or
agreements evidencing indebtedness which is subordinate or junior to, or pari
passu with, the Notes, or any subordination agreement executed in connection
therewith, to be modified or amended or any agreement or consent to be given
thereunder, whereby (i) any provisions thereof relating to the subordination
thereof to the Notes are waived, modified or discharged, or (ii) there is any
acceleration of the maturities therein provided.
2. The Company agrees that it will:
(a) (i) permit one non-voting representative designated by the
Majority Stakeholders to attend all meetings of the Board of Directors (or any
comparable governing body), and of all committees thereof, of each of the Parent
and the Company, (ii) pay the reasonable expenses of such representative in
connection with meetings and other activities of such Boards of Directors,
committees thereof or other such governing bodies of the Parent and the Company,
(iii) provide to such representative all notices, documents and information
furnished to the directors of each of the Parent and the Company, at the same
time as furnished to such directors, and (iv) use best efforts to notify such
representative of, and permit such representative to participate by telephone
in, emergency meetings of the Boards of Directors, committees thereof or other
such governing bodies of each of the Parent and the Company, and to provide such
representative copies of the minutes of all such meetings promptly after they
are held;
5
(b) maintain in full force and effect (i) insurance of the types
referred to in Section 3.14 of the Merger Agreement which covers at least the
same risks as the insurance maintained by LRH immediately prior to its merger
into the Company, and which is in amounts equal to or greater than the insurance
maintained by LRH at such time, and (ii) directors' and officers' liability
insurance for the benefit of LRH's pre-Merger directors, officers and Majority
Stakeholders (at the expense of the Majority Stakeholders);
(c) keep proper books of record and account in which full and true
entries will be made of all dealings or transactions relating to the business
and affairs of the Company, and the Company shall cause to be furnished to the
Holder:
(i) as soon as practicable and in any event within thirty (30)
days after the end of each month, but only if the same are prepared for
internal use by the Company or for creditors, equity holders or others:
(x) unaudited consolidated statements of income, retained earnings and
cash flows of the Company and its consolidated Subsidiaries for such
month, and unaudited consolidated balance sheets of the Company and its
consolidated Subsidiaries as of the end of such month, in the forms
prepared by the Company and its consolidated Subsidiaries for their
internal use consistent with past practice, and (y) in comparative
form, figures for the actual results for the corresponding month in the
immediately preceding fiscal year) and amounts projected for such
month, together with explanations of any material variances;
(ii) at the same time furnished to the Senior Lender, a copy
of all financial and other information furnished to the Senior Lender;
and
(iii) as soon as practicable (but in any event not more than
five (5) business days after any officer of the Company obtains
knowledge of the occurrence of an event or the existence of a
circumstance giving rise to a Default or an Event of Default), notice
of any and all Defaults and Events of Default hereunder;
(d) Xxxxx Associates Incorporated, as agent (the "Agent") for the
Holders, or any person designated by such agent, shall have the right, from time
to time hereafter, upon prior notice to the Company to call at the place or
places of business of the Company during ordinary business hours (i) to inspect,
audit and check any of their books, records, journals, orders, receipts and any
correspondence and other data relating to the business of the Company or to any
transactions among the parties to the Note Documents, and (ii) to discuss the
affairs, finances and business of the Company with any of its officers or
directors;
(e) the Company shall, and shall cause each Subsidiary to (i) maintain
its corporate existence, (ii) maintain in full force and effect all bonds,
franchises, patents and trademarks, and all governmental licenses, permits and
authorizations, in each case which are material to the conduct of its business,
(iii) maintain in full force and effect all leases, contracts and other rights,
6
and all non-governmental licenses, permits and authorizations, in each case the
loss of which would have a Material Adverse Effect, unless the Company is able
to replace the same to the reasonable satisfaction of the Holders within 30
days, and (iv) comply with all applicable laws, orders, regulations and
ordinances of all Governmental Authorities, except for such laws, orders,
regulations and ordinances the violation of which would not be reasonably likely
to have a Material Adverse Effect;
(f) the Company shall pay or cause to be paid all of the Company's
license fees, bonding premiums and related taxes and charges and shall pay or
cause to be paid all of the Company's real and personal property taxes,
assessments and charges and all of the Company's franchise, income,
unemployment, use, excise, old age benefit, withholding, sales and other taxes
and other governmental charges assessed against the Company, or payable by the
Company, at such times and in such manner as to prevent any penalty from
accruing or any lien or charge from attaching to its property (except for liens
or charges relating to such taxes that are not yet payable), provided that the
Company shall have the right to contest in good faith, by an appropriate
proceeding promptly initiated and diligently conducted, the validity, amount or
imposition of any such tax, assessment or charge, and upon such good faith
contest to delay or refuse payment thereof, if the Company establishes adequate
reserves to cover such contested taxes, assessments or charges;
(g) the Company shall, as soon as possible, and in any event within
five (5) days after the Company learns of any of the following, give written
notice to the Holder of:
(i) any proceeding(s) being instituted or threatened to be
instituted by or against the Company in any federal, state, local or
foreign court or before any Governmental Authority in which injunctive
relief is requested or in which the amount in controversy exceeds
$50,000, and any litigation, proceeding, investigation or claim that
relates in any material way to (i) any of the Note Documents, or (ii)
the Certificate of Incorporation or By-laws of the Company;
(ii) any change in the business, assets or condition,
financial or otherwise, of the Company which can reasonably be expected
to have a Material Adverse Effect; and
(iii) the occurrence of any Event of Default as defined in the
documents governing any Senior Debt; and
(h) the Company shall promptly provide the Holder with copies of all
amendments, consent letters, waivers or modifications to, and any material
notices or reports provided by any Person to the Company pursuant to the terms
of or in connection with, any Note Document or any document governing the Senior
Debt, or the Certificate of Incorporation or Bylaws of the Company, or by the
Company to any such Person.
7
Events of Default
If any of the following conditions or events shall occur and be
continuing:
(1) the Company fails to pay all or any portion of the
principal of the Notes when due; or the Company fails to pay any
interest on the Notes and such failure continues for more than ten (10)
days after such interest becomes due in accordance with the terms
hereof; or
(2) the Company or the Parent, as the case may be, shall
default in the performance of or compliance with any other term of the
Note Documents, and such default shall continue for thirty (30) days
(or, if such default is susceptible of cure, an additional period of up
to thirty (30) days so long as the Company or the Parent, as the case
may be, is diligently working to cure or remedy the same); or a default
shall occur under any other indebtedness or guaranty of the Company or
Parent or under any agreement relating thereto; or
(3) any warranty or representation heretofore, now or
hereafter made by the Company or the Parent in or pursuant to the
Merger Agreement or the Guaranty is untrue or incorrect in any material
respect, or any schedule, certificate, statement, report, financial
data, notice or other writing furnished at any time to the Majority
Stakeholders by the Company or the Parent under or pursuant to the
Merger Agreement or the Guaranty, is untrue or incorrect in any
material respect on the date as of which made; or
(4) the Company or the Parent shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay
its debts generally as they become due, or shall file a voluntary
petition in bankruptcy, or shall file any petition or answer seeking
for itself any reorganization, arrangement, composition, adjustment,
liquidation, dissolution or similar relief under any present or future
statute, law or regulation, or shall file any answer admitting or not
contesting the material allegations of a petition filed against it in
any such proceeding, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of it or of all or
any substantial part of its properties, or it or its directors shall
take any action looking to its dissolution or liquidation; or the
Company or the Parent voluntarily or involuntarily dissolves or is
dissolved, or its existence terminates or is terminated; or the Company
or the Parent becomes insolvent or fails generally to pay its debts as
they become due; or
(5) within 90 days after the commencement of any action
against the Company or the Parent seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or regulation,
such action shall not have been dismissed or all orders or proceedings
thereunder affecting its operations or the business stayed, or if the
stay of any such order
8
or proceeding shall thereafter be set aside, or within 90 days after
the appointment without the consent or acquiescence of the Company or
the Parent or of any trustee, receiver or liquidator of it or of all or
any substantial part of properties, such appointment shall not have
been vacated; or
(6) any material portion of the assets of the Company or the
Parent is attached, seized, subjected to a writ or distress warrant, or
is levied upon, or comes within the possession of any receiver,
trustee, custodian or assignee for the benefit of creditors; or
(7) the Agent, for the benefit of the Holders, shall cease to
have a valid and perfected security interest in or mortgage of any of
the collateral or property securing the Notes, subject only to the
prior security interest therein or mortgage thereof in favor of the
Senior Lender; or
(8) the Guaranty or any Security Document shall cease to be in
full force and effect or shall be declared by a court or other
Governmental Authority of competent jurisdiction to be void, voidable
or unenforceable against any obligor party thereto; the validity or
enforceability of any thereof against any Obligor party thereto shall
be contested by any Obligor or any Affiliate; or any Obligor or
Affiliate shall deny that any Obligor has any further liability or
obligation thereunder; or
(9) there shall occur a Change of Control (as defined below)
of the Parent; or the Parent shall no longer own all of the outstanding
capital stock of the Company; then, and in any such event, (x) if such
event is of the type described in paragraph (4) or (5) above, the Notes
shall automatically become due and payable, or (y) in any other such
event, and at any time thereafter, the Majority Holders by notice to
the Company may declare the entire outstanding principal amount of the
Notes to be, and the same shall thereupon become, immediately due and
payable.
As used herein, "Default" shall mean any of the events
specified in paragraphs (1) through (9) above, whether or not any requirement
for the giving of notice, the lapse of time, or both, or the happening of any
other condition, has been satisfied; and "Event of Default" shall mean any of
the events specified in paragraphs (1) through (9) above, provided that any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
As used herein, "Change of Control" shall mean the occurrence
of any of the following events: (i) any person or any persons acting together
which would constitute a "group" for purposes of Section 13(d) of the Securities
Exchange Act of 1934, as amended (other than TBM Consulting Group, Inc., Colt
Services, Inc., X.X. Xxxxxxx & Co. and each of their respective Affiliates),
together with any Affiliates thereof, shall beneficially own, directly or
9
indirectly, at least 50% of the total voting stock of the Parent; or (ii) all or
substantially all of the Parent's assets are sold as an entirety to any person
or related group of persons or there shall be consummated any consolidation or
merger of the Parent (A) in which the Parent is not the continuing or surviving
corporation (other than a consolidation or merger with a wholly-owned Subsidiary
of the Parent in which all shares of Common Stock of the Parent outstanding
immediately prior to the effectiveness thereof are changed into or exchanged for
the same consideration) or (B) pursuant to which the Common Stock of the Parent
would be converted into cash, securities or other property, other than (in the
case of each of (A) and (B) above) a sale of assets or consolidation or merger
of the Parent in which the holders of the Common Stock of the Parent immediately
prior to the sale of assets or consolidation or merger have, directly or
indirectly, at least a majority of the common stock of the transferee or
continuing or surviving corporation immediately after such sale of assets or
consolidation or merger.
No remedy granted under the Note Documents or otherwise
available to the Holder is intended to be exclusive of any other available
remedy, but each and every remedy shall be cumulative and in addition to every
other remedy granted to the Holder under the Note Documents. The Holder may
exercise any all remedies concurrently or in any order which the Holder, in its
sole discretion, elects.
This Note shall be governed by and construed in accordance
with the laws of the State of Connecticut.
TBM ACQUISITION I, INC.
By:
Name: Xxxxxxx X. Xxxxxxxx
Title: President
10
SCHEDULE
LONG REACH HOLDINGS, INC.
(FORMERLY TBM ACQUISITION I, INC.)
SUBORDINATED PROMISSORY NOTES
Holder Amount
------ ------
LEG PARTNERS, L.P. $ 13,410
LEG PARTNERS SBIC, L.P. $1,401,150
LEG PARTNERS II, L.P. $1,302,930
MARWIT CAPITAL COMPANY, L.P. $ 282,510
