THIS NOTE AND THE SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR THE SECURITIES LAWS OF ANY STATE. THIS NOTE AND SUCH SHARES MAY BE
OFFERED OR SOLD ONLY IF REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
APPLICABLE STATE SECURITIES LAW OR IF AN EXEMPTION FROM REGISTRATION UNDER
SUCH LAWS IS AVAILABLE.
THE RIGHTS, TITLE AND INTERESTS OF ANY HOLDER OF THIS NOTE ARE SUBJECT TO
THAT CERTAIN SUBORDINATION AND INTERCREDITOR AGREEMENT AMONG CONGRESS
FINANCIAL CORPORATION (SOUTHWEST), EXABYTE CORPORATION, AND THE SUBORDINATE
LENDERS NAMED THEREIN, DATED AS OF AUGUST 22, 2001, AS THE SAME MAY BE
MODIFIED, AMENDED, RENEWED, EXTENDED, RESTATED OR REPLACED FROM TIME TO
TIME, THE TERMS OF WHICH ARE HEREBY INCORPORATED HEREIN BY REFERENCE.
EXABYTE CORPORATION
12% SUBORDINATED SECURED CONVERTIBLE NOTE
Dated: August 23, 2001
FOR VALUE RECEIVED, Exabyte Corporation, a Delaware corporation (the
"Company"), hereby promises to pay to the order of $______________
("Payee"), in the manner and at the place hereinafter provided, the principal
Face Amount of,($___________________) on or before December 31, 2001 (the
"Stated Maturity Date"), subject to earlier satisfaction as provided in
Section 1(c) and extension as provided in Section 2(a). The Company also
promises to pay interest on the unpaid amount hereof at the rate and in the
manner hereinafter provided. This Note (the "Note") is issued as of August
23, 2001 (the "Original Issue Date") pursuant to a Loan and Security
Agreement, dated August 22, 2001, between the Company, Payee and the other
lenders named therein (the "Loan Agreement"). The Company's obligations
evidenced by this Note are secured by the Collateral (as defined in the Loan
Agreement). The Holder of this Note shall be entitled to the rights and
privileges set forth herein and in the Loan Agreement. See Section 7 of this
Note for definitions used herein.
SECTION 1. INTEREST AND PRINCIPAL.
(a) PAYMENT. The Company shall pay interest ("Interest") on the
unpaid principal Face Amount of this Note from the Original Issue Date at the
rate (the "Interest Rate") equal to 12.0% per annum (computed on the basis of a
360-day year and the actual number of days elapsed), compounded quarterly. The
Interest Rate shall be subject to adjustment in accordance with Section 1(b)
below. Interest on this Note shall accrue from and after the Original Issue Date
and, except as provided in the immediately succeeding sentence, shall be payable
on the date which the principal of this Note becomes due and payable, whether at
the Stated Maturity Date or by declaration of acceleration, call for redemption,
acceleration pursuant to Section 6 or otherwise (collectively, "Maturity"). If
the Stated Maturity Date of the Note is extended pursuant to Section 2(a) hereof
upon termination of the Merger Agreement, accrued Interest on this Note shall be
payable quarterly on the last day of each March, June, September and December
(commencing at the end of the quarter during which the Merger Agreement was
terminated) and at Maturity. Principal and Interest shall be paid by wire
transfer of immediately available funds to the account designated by the Holder.
All payments hereunder shall be credited first to Interest.
(b) ADJUSTMENTS. In addition to any other remedies it may have, in
the event that (i) any Event of Default (as defined in the Loan Agreement) shall
have occurred and be continuing or (ii) the Company shall at any time have
defaulted in any of its obligations under the Note, which default shall
constitute an Event of Default under Section 5 hereof, then the Interest Rate
shall be increased by an additional 6.0% per annum, from the date such default
occurred until the date such default has been cured. The Interest Rate shall be
further increased by an additional 1.0% per annum for each 90-day period that
the Event of Default continues without cure. An increase in the Interest Rate
pursuant to this paragraph shall not be in lieu of any right or remedy of the
Holder regarding, or constitute a waiver of, any occurrence described in the
first sentence hereof.
(c) CREDIT AGAINST SERIES H PURCHASE PRICE. On the Closing Date (as
defined in the Merger Agreement), the then outstanding principal amount of this
Note and all accrued and unpaid Interest (including Additional Interest) thereon
shall be credited against Payee's total purchase price for the shares of the
Company's Series H Preferred Stock which Payee is purchasing under the Merger
Agreement. Upon such credit against the purchase price and issuance of the
requisite number of shares of Series H Preferred Stock to Payee therefor,
principal and accrued Interest under this Note shall be deemed paid to the full
amount of such credit.
SECTION 2. CONVERSION OR EXTENSION.
(a) CONVERSION EVENTS. Subject to the provisions hereinafter set
forth, all of the principal amount of this Note and accrued Interest thereon
shall be convertible at the option of the Holder thereof into fully paid and
nonassessable shares of Common Stock:
2
(i) for a period of thirty (30) days following any termination
by Ecrix Corporation ("Ecrix") of the Merger Agreement, for any reason other
than the intentional breach of the Merger Agreement by the Company; or
(ii) for a period of thirty (30) days following any termination
of the Merger Agreement by the Company as a result of the intentional breach of
the Merger Agreement by Ecrix.
The events set forth in Sections 2(a)(i) and (ii) are defined as "Conversion
Events." The number of shares of Common Stock to be issued upon conversion of
the Note (the "Conversion Shares") shall be equal to one (1) share of Common
Stock for each $.80 in principal amount of the Note and accrued Interest thereon
being converted (the "Conversion Amount"), subject to adjustment from time to
time pursuant to paragraph (f) of this Section 2. If Holder does not elect to
convert the Note into Common Stock as provided herein within thirty (30) days
after the occurrence of a Conversion Event, then the Stated Maturity Date shall
be automatically extended to August 22, 2002 and the Interest Rate on the Note
shall increase to 15% as of the termination date of the Merger Agreement and
shall continue to increase by an additional 1.0% per annum for each 90-day
period until the Maturity Date. If both (x) the Merger has not been consummated
by December 31, 2001 and (y) the Merger Agreement has not been terminated on or
prior to that date, then the Stated Maturity Date shall be automatically
extended to the earlier to occur of (I) the date the Merger is consummated or
(II) the date the Merger Agreement is terminated.
(b) PROCEDURES. Conversion of this Note may be effected by the Holder
upon the surrender to the Company at the principal office of the Company or at
the office of any agent or agents of the Company, as may be designated by the
Company, of the Note to be converted accompanied by a written notice stating
that such Holder elects to convert the entire Face Amount of such Note in
accordance with the provisions of this Section 2 and specifying the name or
names in which such Holder wishes the certificate or certificates for Common
Stock to be issued. In case such notice shall specify a name or names other than
that of such Holder, such notice shall be accompanied by payment of all transfer
Taxes payable upon the issuance of Common Stock in such name or names and an
opinion of counsel satisfactory to the Company that the transfer of the Note may
be made without registration under the Securities Act or any applicable state
securities laws. Other than such Taxes for transfers to other Persons, the
Company will pay any and all issue and other Taxes (other than Taxes based on
income) that may be payable in respect of any issue or delivery of Common Stock
on conversion of the Note pursuant hereto. As promptly as practicable, after the
surrender of such Note and the receipt of such notice relating thereto and, if
applicable, payment of all transfer Taxes for transfers to other Persons (or the
demonstration to the satisfaction of the Company that such Taxes have been
paid), the Company shall deliver or cause to be delivered certificates
representing the number of validly issued, fully paid and nonassessable Common
Stock to which the Holder of the Note being converted shall be entitled as the
Conversion Amount. Such conversion shall be deemed to have been made at the
close of business on the date of giving such notice and of such surrender of the
Note to be converted so that the rights of the Holder thereof as to the amount
being converted shall cease except for the right to receive shares of Common
Stock in accordance herewith, and the Person entitled to receive the Common
Stock shall be treated for all purposes as having become the record holder of
such Common Stock at such time. The Company shall not be
3
required to convert, and no surrender of the Note shall be effective for that
purpose, while the transfer books of the Company for the Common Stock are closed
for any purpose (but not for any period in excess of ten calendar days); but the
surrender of the Note for conversion during any period while such books are so
closed shall become effective for conversion immediately upon the reopening of
such books, as if the conversion had been made on the date such Note was
surrendered, and at the Conversion Ratio in effect on the date of such
surrender.
(c) FRACTIONAL SHARES. No fractional shares shall be issued upon any
conversion of the Note. In lieu thereof, the Company shall round up any
fractional share of its Common Stock to which the Holder shall be entitled to
receive pursuant to this Note to the next highest whole share.
(d) RESERVATION OF COMMON STOCK. The Company shall at all times
reserve and keep available for issuance upon the conversion of the Note, free
from any preemptive rights, such number of its authorized but unissued shares of
Common Stock as will from time to time be sufficient to permit the conversion of
any portion of the Note remaining outstanding, and shall take all action
required to increase the authorized number of shares of Common Stock if
necessary to permit the conversion of the Note.
(e) ANTI-DILUTION ADJUSTMENTS. The Conversion Amount will be subject
to adjustment from time to time as follows:
(1) In case the Company shall at any time or from time to time
after the Original Issue Date (A) pay a dividend, or make a distribution, on the
outstanding Common Stock in shares of Common Stock, (B) subdivide the
outstanding Common Stock, (C) combine the outstanding Common Stock into a
smaller number of shares or (D) issue by reclassification of the Common Stock
any shares of Capital Stock of the Company, then, and in each such case, the
Conversion Amount in effect immediately prior to such event or the record date
therefor, whichever is earlier, shall be adjusted so that the Holder of any
Notes thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock or other securities of the Company which such
Holder would have owned or have been entitled to receive after the happening of
any of the events described above, had such Notes been surrendered for
conversion immediately prior to the happening of such event or the record date
therefor, whichever is earlier. An adjustment made pursuant to this clause (1)
shall become effective (x) in the case of any such dividend or distribution,
immediately after the close of business on the record date for the determination
of holders of Common Stock entitled to receive such dividend or distribution, or
(y) in the case of such subdivision, reclassification or combination,
immediately after the close of business on the day upon which such corporate
action becomes effective.
(2) If at any time, as a result of: (i) a capital reorganization
or reclassification or (ii) a merger or consolidation of the Company with
another corporation (whether or not the Company is the surviving corporation),
the Common Stock issuable upon the conversion of this Note shall be changed into
or exchanged for the same or a different number of shares of any class or
classes of stock of the Company or any other corporation, or other securities
convertible into such shares, then, as a part of such reorganization,
reclassification, merger or consolidation, appropriate adjustments shall be made
in the conversion rights of this
4
Note, so that: (A) the holder of this Note shall thereafter be entitled to
receive, upon conversion of this Note, the kind and amount of shares of stock,
other securities, money and property which such holder would have received at
the time of such capital reorganization, reclassification, merger, or
consolidation, if this Note had been converted immediately prior to such capital
reorganization, reclassification, merger, or consolidation, and (B) the
conversion rights of this Note shall thereafter be adjusted on terms as nearly
equivalent as may be practicable to the adjustments theretofore provided in this
Note.
(3) The Conversion Amount shall be proportionally adjusted upon
any transfer, assignment or subdivision permitted hereunder of less than all of
the Face Amount of this Note such that upon the occurrence of any Conversion
Event, the number of fully paid and nonassessable shares of Common Stock
issuable upon the conversion of any resulting note or notes shall be equal to
the Conversion Amount in effect immediately prior to such transfer, assignment
or subdivision multiplied by the ratio that the principal face amount of such
resulting note or notes bears to the Face Amount.
(4) Anything in this paragraph (e) to the contrary
notwithstanding, the Company shall not be required to give effect to any
adjustment in the Conversion Amount unless and until the net effect of one or
more adjustments (each of which shall be carried forward), determined as above
provided, shall have resulted in a change of the Conversion Amount by at least
one one-hundredth of one share of Common Stock, and when the cumulative net
effect of more than one adjustment so determined shall be to change the
Conversion Amount by a least one one-hundredth of one share of Common Stock,
such change in Conversion Amount shall thereupon be given effect.
(5) If the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or other
distribution, and shall thereafter and before the distribution to stockholders
thereof legally abandon its plan to pay or deliver such dividend or
distribution, then thereafter no adjustment in the number of shares of Common
Stock issuable upon exercise of the right of conversion granted by this
paragraph (e) or in the Conversion Ratio then in effect shall be required by
reason of the taking of such record.
(f) NOTICE OF CERTAIN EVENTS. In case at any time or from time to
time the Company shall pay any dividend or make any other distribution to the
holders of its Common Stock, or shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any class or any
other right, or there shall be any capital reorganization or reclassification of
the Common Stock of the Company or merger of the Company with or into another
corporation, or any sale or conveyance to another corporation of the property of
the Company as an entirety or substantially as an entirety, or there shall be
contemplated or proposed by the Company or its Board of Directors, or there
shall be a voluntary or involuntary dissolution, liquidation or winding up of
the Company, then, in any one or more of said cases the Company shall give at
least twenty days prior written notice (five days after the date of mailing of
such notice shall be deemed to be the time of giving thereof) to the registered
Holder of the Note at the address(es) as shown on the books of the Company as of
the date on which (i) the books of the Company shall close or a record shall be
taken for such stock dividend, distribution or subscription rights (ii) such
reorganization, reclassification, merger, sale or conveyance,
5
dissolution, liquidation or winding up shall take place, as the case may be.
Such notice shall also specify the date as of which the holders of the Common
Stock of record shall participate in said dividend, distribution or subscription
rights or shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reorganization, reclassification, merger,
sale or conveyance or participate in such dissolution, liquidation or winding
up, as the case may be, or the latest date on which the Holder of the Note may
elect to convert this Note into Common Stock pursuant to the provisions of this
Section 2.
(g) NOTICE OF ADJUSTMENTS. Upon any adjustment of the Conversion
Amount then in effect and any increase or decrease in the number of shares of
Common Stock issuable upon the operation of the conversion provisions set forth
in Section 2 hereof, then, and in each such case, the Company shall promptly
deliver to the transfer agent of the Common Stock, if any, a certificate signed
by the President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Company setting forth in reasonable detail the
event requiring the adjustment and the method by which such adjustment was
calculated and specifying the Conversion Amount then in effect following such
adjustment and the increased or decreased number of shares issuable upon the
conversion set forth in Section 2 hereof. The Company shall also promptly after
the making of such adjustment give written notice to the registered Holders of
the Notes at the address of each Holder as shown on the books of the Company,
which notice shall state the Conversion Amount then in effect, as adjusted, and
the increased or decreased number of shares issuable upon the exercise of the
right of conversion granted by Section 2 hereof, and shall set forth in
reasonable detail the method of calculation of each and a brief statement of the
facts requiring such adjustment. Where appropriate, such notice to Holders of
the Notes may be given in advance and included as part of the notice required
under the provisions of Section 2(f) hereof.
(h) FURTHER ACTIONS. The Company will not, through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other action, avoid or seek to avoid or fail to
observe or perform any of the terms to be observed or performed hereunder by the
Company, but will at all times in good faith assist in the carrying out of all
the provisions of this Section 2 and in the taking of all such action as may be
necessary or appropriate in order to protect the conversion rights of the Holder
of the Note against impairment.
SECTION 3. SENIORITY; SUBORDINATION.
(a) SENIOR DEBT. Anything in this Note to the contrary
notwithstanding, the Company covenants and agrees, and Payee and, by its
acceptance of this Note, any subsequent Holder of this Note likewise covenants
and agrees, that the indebtedness evidenced by this Note and the payment of the
Face Amount of and Interest (including any Additional Interest) on, and other
obligations in respect of, this Note, shall rank subordinate to the Senior
Indebtedness.
(b) RIGHTS OF PAYEE. Nothing in this Note is intended to or shall
impair, as between the Company and Payee or any subsequent Holder, the
obligation of the Company, which is unconditional and absolute, to pay to Payee
or such subsequent Holder the principal of (and premium, if any) and Interest
(including any Additional Interest) on this Note as and when
6
the same shall become due in accordance with its terms, or is intended to or
shall affect the relative rights against the Company of Payee or such subsequent
Holder and creditors of the Company. The failure to make a payment on account of
this Note by reason of any provision of this Section 3 shall not be construed as
preventing the occurrence of an Event of Default, nor shall anything herein
prevent Payee or any subsequent Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Note.
(c) SUBORDINATION. This Note shall be subject to the subordination
provisions set forth in that certain Subordination and Intercreditor Agreement
dated as of August 22, 2001 among Congress Financial Corporation, the Company,
Payee and the other holders of Notes named therein.
SECTION 4. COVENANTS.
(a) PAYMENT. The Company shall duly and punctually pay the Face
Amount of (and premium, if any), and Interest (including any Additional
Interest) on, this Note in accordance with its terms.
(b) STAY, EXTENSION AND USURY LAWS. The Company covenants (to the
extent that it may lawfully do so) that it shall 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 or other laws which would prohibit or forgive
the Company from paying all or any portion of the principal of or Interest
(including any Additional Interest) on the Note as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of the Note.
(c) MAINTENANCE OF OFFICE OR AGENCY. The Company shall maintain in
Boulder, Colorado an office or agency where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange, where Notes may be surrendered for conversion and where
notices and demands to or upon the Company in respect of the Notes may be
served. The Company shall give prompt written notice to the Holder of the
location, and any change in the location, of such office or agency. The Company
may also from time to time designate one or more other offices or agencies (in
or outside Boulder, Colorado) where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the United States for such purposes. The Company shall give prompt written
notice to the Holder of any such designation or rescission and of any change in
the location of any such other office or agency.
(d) COVENANTS CONTAINED IN LOAN AGREEMENT. Reference is hereby made
to the Loan Agreement for additional terms, conditions, covenants and agreements
of the Company with respect to the loan evidenced by this Note.
SECTION 5. DEFAULT AND REMEDIES. Upon the occurrence of an Event of Default
(as defined in the Loan Agreement), the Holder may, by notice to the Company,
declare all unpaid
7
principal of and accrued Interest (including any Additional Interest) to the
date of acceleration on the Note then outstanding (if not then due and payable)
to be due and payable in the manner, and upon the conditions and with the effect
provided in the Loan Agreement.
SECTION 6. ACCELERATION OF MATURITY. Upon (a) termination by the Company of
the Merger Agreement for any reason (other than the intentional breach by Ecrix
of the Merger Agreement) or (b) the termination of the Merger Agreement by Ecrix
due to the Company's intentional breach of the Merger Agreement, then, in each
case, the principal and accrued Interest (including any Additional Interest) of
the Note shall be immediately due and payable, without any further action on the
part of the Company or the Holder, in the manner provided in this Note.
SECTION 7. DEFINITIONS.
For the purposes of this Note, the following terms shall have the
meanings indicated:
"Additional Interest" shall mean additional Interest, if any, payable
pursuant to Sections 1(b) or 2(a) of this Note.
"Business Day" means any day other than 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.
"Capital Stock" shall mean, in the case of the Company, any and all
shares (however designated) of the capital stock of the Company now or hereafter
outstanding.
"Common Stock" means the Company's common stock, par value $0.001 per
share.
"Congress Financial Corporation" means Congress Financial Corporation
(Southwest), a Texas corporation.
"Congress Loan Agreement" means that certain Loan and Security
Agreement by and between Congress Financial Corporation (Southwest) and the
Company dated May 16, 2000, as amended to the date of the Loan Agreement and as
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
"Dollars" or "$" shall mean United States dollars.
"Event of Default" means any of the events set forth or referenced in
Section 6 of the Loan Agreement.
"Face Amount" for each Note shall mean the principal amount at the
Stated Maturity Date of such Note as indicated on the face of such Note.
"GAAP" shall mean U.S. generally accepted accounting principles,
consistently applied.
8
"Holder" shall mean, at any time of reference, a Person in whose name
the Note is registered on the books of the Company at such time or the Person
holding Conversion Shares following conversion of a Note.
"Merger" means a merger of Ecrix and Exabyte Acquisition, Inc.
pursuant to the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger dated as
of August 22, 2001, by and among the Company, Ecrix, Exabyte Acquisition,
Inc, certain lenders and certain investors signatory thereto, as hereafter
amended, modified, supplemented, extended, renewed or restated.
"Outstanding" or "outstanding" shall mean, when used with reference
to the Notes at a particular time, all, except (i) Notes theretofore reported
as lost, stolen, damaged or destroyed, or surrendered for transfer, exchange
or replacement, in respect to which replacement Notes have been issued, (ii)
Notes theretofore paid in full, and (iii) Notes theretofore canceled by the
Company.
"Person" shall mean any individual, firm, corporation, limited
liability company, partnership, company or other entity, and shall include
any successor (by merger or otherwise) of such entity.
"Securities Act" shall mean the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act of 1933, as amended, shall include
reference to the comparable section, if any, of any such successor federal
statute.
"Senior Indebtedness" shall mean any Indebtedness of the Company
existing under the Congress Loan Agreement.
"Subsidiary" means, with respect to any Person, (i) a corporation a
majority of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly,
owned by such Person, by one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof, (ii) any other Person (other
than a corporation), including, without limitation, a joint venture, in which
such Person, one or more Subsidiaries thereof or such Person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, has at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Persons
performing similar functions), (iii) the management of which is otherwise
controlled, directly or indirectly, by such Person or (iv) any other Person
required to be consolidated with such Person in accordance with GAAP. For
purposes of this definition (and for the determination of whether or not a
Subsidiary is a wholly owned Subsidiary of a Person), any directors'
qualifying shares or investment by foreign nationals mandated by applicable
law shall be disregarded in determining the ownership of a Subsidiary.
9
"Tax" and "Taxes" shall mean any federal, state, local or foreign
income, gross receipts, property, sales, use, value added, license, excise,
franchise, capital, net worth, estimated, withholding, employment, payroll,
premium, withholding, alternative or added minimum, ad valorem, inventory,
asset, gains, transfer or excise tax, or any other tax, levy, custom, duty,
impost, governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest, penalty or additions to tax, imposed
by any governmental entity and, including, without limitation, any Taxes of
another Person owing under a contract, as transferee or successor, under
Treas. Reg. ss. 1.1502-6 or analogous state, local or foreign law, or
otherwise.
"Transaction Documents" shall mean this Note and the Merger
Agreement, the Loan Agreement and any other document or agreement entered
into or delivered in connection with the transactions contemplated by the
Loan Agreement.
OTHER DEFINITIONS DEFINED IN SECTION
"COMPANY" Preamble
"CONVERSION AMOUNT" 2(a)
"CONVERSION EVENT" 2(d)
"ECRIX" 2(a)
"INTEREST RATE" 1(a)
"MATURITY" 1(a)
"NOTE" Preamble
"ORIGINAL ISSUE DATE" Preamble
"PAYEE" Preamble
"STATED MATURITY DATE" Preamble
SECTION 8. TRANSFER. Except for assignments to Ecrix, to any other Lender
(as defined in the Loan Agreement) or to any affiliate, partner or shareholder
of the Holder or an immediate family member (or a trust created for the benefit
of an immediate family member) of the Holder, the Holder may not assign its
rights in, to or under all or any portion of the Note without the prior written
consent of the Company, which consent shall not be unreasonably withheld.
SECTION 9. AMENDMENTS, SUPPLEMENTS AND WAIVERS. The Company and the Holder
may not amend, modify or supplement the Note, nor may any provision of the Note
be waived, except by an instrument in writing referring to this Note and signed
by the Company and the Holder.
SECTION 10. MISCELLANEOUS.
(a) GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
COLORADO, WITHOUT GIVING EFFECT TO ANY
CHOICE OR CONFLICT OF LAW PROVISION OR RULE.
10
(b) SUCCESSORS AND ASSIGNS. All covenants and agreements contained
herein shall bind and inure to the benefit of the Holder of this Note and its
respective successors and permitted assigns.
(c) SEVERABILITY. If any term, provision, covenant or restriction of
this Note is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Note shall remain in full force and effect and shall in no
way be affected, impaired or invalidated. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, void or unenforceable.
(d) LOST, DESTROYED OR WRONGFULLY TAKEN NOTES. If a mutilated Note is
surrendered to the Company or if the Holder of a Note claims that such Note has
been lost, destroyed or wrongfully taken, then, in the absence of notice to the
Company that such Note has been acquired by a bona fide purchaser, the Company
shall issue a replacement Note to the original Holder of such mutilated, lost,
destroyed or wrongfully taken Note. If requested by the Company, as a condition
to the issue of a replacement Note, such Holder shall furnish an indemnity bond
sufficient in the reasonable judgment of the Company to protect the Company from
any loss which it may suffer if a Note is replaced. Every replacement Note is an
additional obligation of the Company. If a Note is replaced as provided above,
it ceases to be outstanding unless the Company receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
(e) PERSONS DEEMED OWNERS. The registered Holder of a Note on the
books of the Company may be treated as the owner of it for all purposes.
(f) NOTICES. All notices, consents, requests, instructions,
approvals, financial statements, reports and other communications provided for
herein shall be deemed given, if in writing and delivered personally, by
telecopy or sent by registered mail, postage prepaid, if to:
If to the Company:
Exabyte Corporation
0000 00xx Xx.
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
11
With a copy to:
Holland & Xxxx, L.L.P.
000 00xx Xx., Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxx
If to the Holder:
-------------------
-------------------
-------------------
Telephone:
Facsimile:
With copies to:
Bartlit Xxxx Xxxxxx Xxxxxxxxx & Xxxxx
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx
or to such other address or telecopy number as either the Company or the Holder
may, from time to time, designate in a written notice given in a like manner.
(g) FURTHER ASSURANCES. At any time or from time to time upon the
request of the Holder, the Company shall execute and deliver such further
documents and do such other acts and things as the Holder may reasonably request
in order to effect fully the purposes of the Note, and to provide for payment of
the loans evidenced hereunder with interest thereon in accordance with the terms
of the Note.
(h) HEADINGS; CONSTRUCTION. The headings herein are for convenience
only, do not constitute a part of this Note, and shall not be deemed to limit or
affect any of the provisions hereof. All words used in this Note will be
construed to be of such gender or number as the circumstances require.
(i) SPECIFIC ENFORCEMENT. The Holder and the Company acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Note were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that the Holder shall
be entitled to an injunction to prevent breaches of the provisions of this Note
and to enforce specifically the terms and provisions hereof in any court of the
United States or any state thereof having jurisdiction, this being in addition
to any other remedy to which the Holder may be entitled at law or equity.
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(j) EXPENSES. The Company agrees to pay to the Holder all
out-of-pocket costs and expenses incurred by such Holder relating to any future
amendment or supplement to the Note (or any proposal by the Company for such
amendment or supplement) whether or not consummated or any waiver or consent
with respect thereto (or any proposal for such waiver or consent) whether or not
consummated, and all out-of-pocket costs and expenses of such Holder relating to
the enforcement of any of the Transaction Documents.
(k) PAYMENT. The Company shall make all payments under this Note on
the date due. Any payment of this Note that is due on a date other than a
Business Day shall be made on the next succeeding Business Day. If the date for
payment is extended to the next succeeding Business Day by reason of the
preceding sentence, the period of such extension will be included in the
computation of the Interest (including any Additional Interest) payable on such
next succeeding Business Day.
[signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Note to be duly executed
and delivered as of the date written above.
EXABYTE CORPORATION
By:
--------------------------------
Name:
Title:
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