EXHIBIT 10.16
The security represented hereby was originally issued on September 30,
2002 and has not been registered under the Securities Act of 1933, as
amended. The transfer of such security is subject to the conditions
specified in the Note Purchase Agreement, dated as of September 30,
2002 (as amended, restated, supplemented or otherwise modified from
time to time, the "Purchase Agreement") between the issuer (the
"Company") and certain investors, and the Company reserves the right to
refuse the transfer of such security until such conditions have been
fulfilled with respect to such transfer. Upon written request, a copy
of such conditions and terms shall be furnished by the Company to the
holder hereof without charge.
SUBORDINATED PROMISSORY NOTE
September 30, 2002 $______
XXXXXXX HOLDING INC., a Delaware corporation (the "Company"), hereby
promises to pay to __________________________________________, or its registered
assigns, the principal amount of $14,317 together with interest thereon
calculated from the date hereof in accordance with the provisions of this
Subordinated Promissory Note ("Note").
This Note was issued pursuant to a Note Purchase Agreement, dated as of
September 30, 2002 (the "Purchase Agreement"), between the Company and certain
investors, and this Note is one of the "Notes" referred to in the Purchase
Agreement. The Purchase Agreement contains terms governing the rights of the
holder of this Note, and all provisions of the Purchase Agreement are hereby
incorporated herein in full by reference. Unless otherwise indicated herein,
capitalized terms used in this Note have the same meanings set forth in the
Purchase Agreement.
1. Payment of Interest.
(a) Interest Rate. Except as otherwise expressly provided in paragraph
4 hereof, interest shall accrue at the rate of twelve percent (12%) per annum
(computed on the basis of a 360-day year and the actual number of days elapsed
in a year on the unpaid principal) amount of this Note outstanding from time to
time, or (if less) at the highest rate than permitted under applicable law.
(b) Payment. The Company shall pay to the holder of this Note all
accrued interest (the "Capitalized Interest") on the last Business Day of each
month (each, a "Monthly Payment Date"), beginning September 30, 2002, by
increasing the principal amount of this Note, as of such Monthly Payment Date
(any such date on and as of which the principal amount shall be so increased
being hereinafter referred to as an "Adjustment Date"), by an amount equal to
the Capitalized Interest. From and after each Adjustment Date, the outstanding
principal amount of this Note shall, without further action, be increased by an
amount equal to the Capitalized Interest added thereto as of such Adjustment
Date. Any accrued interest which for any reason
has not theretofore been paid shall be paid in full in cash on the date on which
the final principal payment on this Note is paid. Interest shall accrue on any
principal payment due under this Note and, to the extent permitted by applicable
law, on any interest which has not been paid on the date on which it is payable
until such time as payment therefor is actually delivered to the holder of this
Note.
2. Payment of Principal on Note.
(a) Scheduled Payment. The Company shall pay the principal amount as
increased on each Adjustment Date (or such lesser principal amount then
outstanding), together with all accrued and unpaid interest thereon, to the
holder of this Note on the Maturity Date, as defined in the following sentence,
by wire transfer of immediately available funds. The Note shall mature at the
earlier to occur of the following (the "Maturity Date"): (i) September 30, 2006
and (ii) an acceleration under Section 4 which has not been revoked.
(b) Prepayments. The Company may, at any time and from time to time
without premium or penalty, prepay all or a portion (in whole number multiples
of $1,000 only) of the outstanding principal amount of the Notes, pro rata among
the holders of the Notes on the basis of the outstanding principal amount of the
Note held by each holder; provided that such prepayment is not prohibited by the
subordination provisions of Section 3 herein. The Company shall send written
notice of its election to make a prepayment of the Notes to each holder of the
Notes and to Bank of America, N.A. (or any successor thereto), as Administrative
Agent (the "Administrative Agent") under the Senior Credit Agreement referred to
below, in each case by registered or certified mail, return receipt requested,
at least ten days prior to the date of prepayment.
(c) Pro Rate Payment. Any payments to the holders of the Notes (whether
for principal, interest or otherwise) shall be made pro rata among such holders
based upon the aggregate unpaid principal amount of the Notes held by each such
holder. If any holder of a Note obtains any payment (whether voluntary,
involuntary, by application of offset or otherwise) of principal or interest on
any Note in excess of such holder's pro rata share of payments obtained by all
holders of the Notes, such holder shall purchase from the other holders of the
Notes such participation in the Notes held by them as is necessary to cause such
holders to share the excess payment ratably among each of them as provided in
this paragraph.
3. Subordination.
(a) Extent of Subordination. The indebtedness evidenced by the Notes is
subordinate and junior in right of payment and collection (to the extent
described herein) to the Company's "Obligations" under that certain Credit
Agreement, dated as of September 1, 2000, as amended (as such credit agreement
may be further amended, modified, supplemented, restated, replaced or
refinanced, whether in whole or part, from time to time, the "Senior Credit
Agreement"), among Commercial Vehicle Systems PLC (the "Borrower"), CVS Holdings
Limited, as Guarantor, Bank of America, N.A., as Administrative Agent and Swing
Line Lender, and the other financial institutions party thereto (whether such
obligations are outstanding on the date hereof or hereafter created, incurred,
assumed or guaranteed), and all obligations under that certain Guaranty, dated
as of September 30, 2002, issued by the Company with respect thereto
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(collectively, the "Senior Indebtedness"). Such subordination shall be for the
benefit of the holders of the Senior Indebtedness. The Notes are subordinate to
the Senior Indebtedness only to the extent and in the manner herein set forth:
(i) Payments Prior to Bankruptcy or Insolvency. Payments of principal
and/or interest may be made on the Notes at any time prior to the payment in
full in cash of the Senior Indebtedness and the termination of the Commitments
thereunder so long as (i) before and after giving effect to any such payment the
Borrower would be in compliance with Sections 8.15 and 8.16 of the Senior Credit
Agreement, (ii) no Default or Event of Default (as each such term is defined in
the Senior Credit Agreement) exists at the time of such payment or would occur
as a result thereof and (iii) at the time of such payment the Borrower would be
permitted to borrow at least $5,000,000 of additional Revolving Loans under (and
as defined in) the Senior Credit Agreement.
(ii) Liquidation; Dissolution; Bankruptcy. The holders of Senior
Indebtedness will be entitled to receive payment in full in cash of all Senior
Indebtedness (including, without limitation, interest accruing after the
commencement of any bankruptcy proceeding at the rate specified in the Senior
Credit Agreement whether or not such interest is allowed or allowable in such
proceeding) and the Commitments under the Senior Credit Agreement shall be
terminated before the holders of any Note will be entitled to receive any
payment or other distribution (whether of cash, assets, debt instruments, stock
or otherwise) with respect to any Note in the event of any payment or
distribution to creditors of any Borrower or any Guarantor (as defined under the
Senior Credit Agreement) (A) in a liquidation or dissolution of any Borrower or
any Guarantor; (B) in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to any Borrower or any Guarantor or its property;
(C) in an assignment for the benefit of creditors of any Borrower or any
Guarantor; or (D) in any marshaling of the assets and liabilities of any
Borrower or any Guarantor.
(iii) Acceleration of Notes. If payment of the Notes is accelerated
because of an Event of Default, the Borrowers and any Guarantor shall promptly
notify the Administrative Agent of the acceleration.
(iv) When Distribution Must Be Paid Over. If any payment is made on the
Notes at a time when such holder is not entitled to receive payments on the
Notes, such payment or distribution shall be held in trust for the benefit of
the holders of the Senior Indebtedness and shall be immediately delivered
without deduction or setoff directly to the holders of Senior Indebtedness for
application against such Senior Indebtedness, unless and until all Obligations
on such Senior Indebtedness have been paid in full, or such payment have been
provided for, and the Commitments under the Senior Credit Agreement have been
terminated. In the event any payment is delivered to the holders of Senior
Indebtedness in accordance with the immediately preceding sentence at any time
at which there are no amounts outstanding or owing under such Senior
Indebtedness, such amounts shall be held by the holders of such Senior
Indebtedness as cash collateral for any future amounts owing thereunder until
such time as any such amounts become outstanding and the cash collateral is
fully applied to repay such amounts or all Senior Indebtedness is paid in full
in cash and the Commitments under the Senior Credit Agreement are terminated.
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(b) Rights not Subordinated. The provisions of Section 3 are for the
purpose of defining the relative rights of the holders of Senior Indebtedness
on the one hand and the holders of Notes on the other hand. Nothing herein shall
impair the Company's obligation to the holders of the Notes to pay to such
holders both principal and interest in accordance with the terms of the Notes.
No provision of such Section shall be construed to prevent the holders of the
Notes from exercising all remedies otherwise available under the Notes or the
Purchase Agreement or under applicable law upon the occurrence and during the
continuance of an Event of Default, subject to the rights of the holder or
holders of the Senior Indebtedness as set forth in Section 3 to receive cash,
assets, stock or obligations otherwise payable or deliverable to the holders of
the Notes. No provision of such Section shall be deemed to subordinate, to any
extent, any claim or right of any holder of the Notes to any claim against the
Company by any creditor or any other Person except to the extent expressly
provided in such Section.
(c) Subrogation. After all Senior Indebtedness is paid in cash in full
and the Commitments under the Senior Credit Agreement are terminated, the
holders of the Notes shall be subrogated (equally and ratably) to the rights of
holders of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness to the extent that distributions otherwise payable to the holders
of the Notes have been applied to the payment of Senior Indebtedness. In
addition, any payment to the holders of Senior Indebtedness which should have
been paid to the holders of the Notes shall be immediately delivered to the
relevant holder of the Notes.
(d) Subordination may not be Impaired. No right of the Administrative
Agent (on behalf of the holders of Senior Indebtedness) to enforce the
subordination of the indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by any Borrower, any Guarantor or any holder of any
Note or by the failure of any Borrower, any Guarantor or any holder of any Note
to comply with this Note (including, without limitation, the provisions of this
Section 3).
Without in any way limiting the generality of the foregoing paragraph,
any holder of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to any Borrower, any Guarantor or any holder of
any Note, and without incurring responsibility to any Borrower, any Guarantor or
any holder of any Note, and without impairing or releasing the subordination
provided in this Section 3, do any one or more of the following: (A) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness, or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (B) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (C) release any person or entity liable in any manner for the
payment or collection of Senior Indebtedness; and (D) exercise or refrain from
exercising any rights against any Borrower, any Guarantor and any other person
or entity.
(e) Authorization to Effect Subordination. If any holder of any Note
does not file a proper proof of claim or proof of debt in the form required in
any proceeding referred to herein at least 30 days before the expiration of the
time to file such claim, the Administrative Agent on behalf of the holders of
Senior Indebtedness is hereby authorized to file an appropriate claim for and on
behalf of such holder. Any holder of any Note may otherwise exercise and
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assert its rights, powers and remedies in any such proceeding (including the
right to vote to accept or reject any plan or reorganization proposed in any
Chapter 11 case of any Borrower or any Guarantor) so long as such exercise is
not inconsistent with the provisions of this paragraph 3.
(f) The provisions of this Section 3 are intended to constitute and
shall be deemed to constitute a "subordination agreement" within the meaning of
Section 510(a) of the Bankruptcy Code (as in effect as of the date hereof) in
favor of the holders of the Senior Indebtedness. Until such time as the Senior
Indebtedness has been paid in full and the Commitments under the Senior Credit
Agreement have been terminated, and consistent with (but not in limitation of)
the foregoing, and notwithstanding any provision of this Note to the contrary,
the provisions of this Section 3 may not be and shall not be effectively
amended, modified, supplemented or otherwise altered without the prior written
consent of the Required Lenders (as such term is defined in the Senior Credit
Agreement).
(g) The Company and the holder of this Note each hereby agree that from
time to time, at the expense of the Company, the Company and/or the holder of
this Note, as applicable, will promptly execute and deliver to the
Administrative Agent all further instruments and documents, and take all further
action, that may be necessary or desirable, as requested by the Administrative
Agent, in order to effectuate the subordination of the interest of the holder of
this Note set forth or purported to be set forth herein, or to enable the
holders of the Senior Indebtedness to exercise and enforce their respective
rights and remedies hereunder.
4. Events of Default
(a) Definition. For purposes of this Note, an Event of Default shall
have occurred if:
(i) the Company fails to pay when due the full amount of interest then
accrued on any Note or the full amount of any principal payment on any Note, and
any such failure exists for five days;
(ii) the Company fails to perform or observe in any material respect
any other provision contained in the Notes or in the Purchase Agreement and any
such failure continues to exist for 30 days after notice is received by the
Company;
(iii) any representation, warranty or information contained in the
Purchase Agreement is false or misleading in any material respect on the date
made or furnished;
(iv) the Company or any Subsidiary makes an assignment for the benefit
of creditors or admits in writing its inability to pay its debts generally as
they become due; or an order, judgment or decree is entered adjudicating the
Company or any Subsidiary bankrupt or insolvent or any order for relief with
respect to the Company or any Subsidiary is entered under the Federal Bankruptcy
Code; or the Company or any Subsidiary petitions or applies to any tribunal for
the appointment of a custodian, trustee, receiver or liquidator of the Company
or any Subsidiary, or of any substantial part of the assets of the Company or
any Subsidiary, or commences any proceeding (other than a proceeding for the
voluntary liquidation and dissolution
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of any Subsidiary) relating to the Company or any Subsidiary under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction; or any such petition or
application is filed, or any such proceeding is commenced, against the Company
or any Subsidiary and either (A) the Company or any such Subsidiary by any act
indicates its approval thereof, consent thereto or acquiescence therein or (B)
such petition, application or proceeding is not dismissed within 60 days;
(v) a judgment in excess of $1,200,000 is rendered against the Company
or any Subsidiary and, within 60 days after entry thereof, such judgment is not
discharged or execution thereof stayed pending appeal, or within 60 days after
the expiration of any such stay, such judgment is not discharged;
(vi) the Company or any Subsidiary defaults in the performance of any
indebtedness if the effect of such default is to cause an amount exceeding
$1,200,000 to become due prior to its stated maturity (after applicable grace
periods) or to permit the holder or holders of such obligation to cause an
amount exceeding $1,200,000 to become due prior to its stated maturity (after
applicable grace periods); or
(vii) the sale of the Company to an Independent Third Party or group of
Independent Third Parties pursuant to which such party or parties acquire (i)
all or substantially all of the issued and outstanding capital stock of the
Company (whether by merger, consolidation or sale or transfer of stock) or (ii)
all or substantially all of the Company's assets determined on a consolidated
basis (including, without limitation, by way of merger, consolidation, sale or
transfer of stock).
The foregoing shall constitute Events of Default whatever the reason or
cause for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
(b) Consequences of Events of Default
(i) If an Event of Default of the type described in subparagraph
4(a)(i) has occurred and continued for 15 days, the interest rate on the Notes
shall increase immediately by an increment of two percentage point(s) to the
extent permitted by law. Any increase of the interest rate resulting from the
operation of this subparagraph shall terminate as of the close of business on
the date on which no such Event of Default exists (subject to subsequent
increases pursuant to this subparagraph).
(ii) If an Event of Default of the type described in subparagraph
4(a)(iv) has occurred, the aggregate principal amount of the Notes (together
with all accrued interest thereon and all other amounts due and payable with
respect thereto) shall become immediately due and payable without any action on
the part of the holders of the Notes, and the Company shall immediately pay to
the holders of the Notes all amounts due and payable with respect to the Notes.
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(iii) If an Event of Default of the type described in subparagraphs
4(a)(i) has occurred and continued for 25 days or any other Event of Default has
occurred, the holder or holders of Notes representing a majority of the
aggregate principal amount of Notes then outstanding may declare all of the
outstanding principal amount of the Notes due and payable and demand immediate
payment of all of the outstanding principal amount of the Notes. The Company
shall give prompt written notice of any such demand to the other holders of
Notes. If any holder or holders of the Notes demand immediate payment of all of
the Notes, the Company shall immediately pay the principal amount of the Notes
plus all accrued interest thereon.
(iv) Each holder of the Notes shall also have any other rights which
such holder may have been afforded under any contract or agreement at any time
and any other rights which such holder may have pursuant to applicable law.
(v) The Company hereby waives diligence, presentment, protest and
demand and notice of protest and demand, dishonor and nonpayment of this Note,
and expressly agrees that this Note, or the payment hereunder, may be extended
from time to time and that the holder hereof may accept security for this Note
or release security for this Note, all without in any way affecting the
liability of the Company hereunder.
5. Assignments: Transfers
(a) The holder of this Note shall not sell, transfer, assign, pledge or
otherwise dispose of (whether with or without consideration and whether
voluntarily or involuntarily or by operation of law) all or any part of its
interest in this Note, other than to an Affiliate of such holder, without the
prior written consent of the Company (which consent shall not be unreasonably
withheld or delayed) and the holders of the Senior Indebtedness (such consent
not to be unreasonably withheld).
(b) The Company shall maintain a register for recording the ownership
and the transfer of the Notes. Upon surrender of this Note for registration of
transfer or for exchange to the Company at its principal office, the Company at
its sole expense shall execute and deliver in exchange therefor a new Note or
Notes, as the case may be, as requested by the holder or transferee, which
aggregate the unpaid principal amount of such Note, registered as such holder or
transferee may request, dated so that there will be no loss of interest on such
surrendered Note and otherwise of like tenor. The issuance of new Note(s) shall
be made without charge to the holder(s) of the surrendered Note for any issuance
tax in respect thereof or other cost incurred by the Company in connection with
such issuance; provided that the holder of this Note shall pay any transfer
taxes associated therewith. The Company shall be entitled to regard the
registered holder of this Note as the owner and holder of the Notes so
registered for all purposes until the Company is required to record a transfer
of this Note on its register.
6. Replacement. Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Note and, in the
case of any such loss, theft or destruction of this Note, upon receipt of an
indemnity reasonably satisfactory to the Company (provided that, if the holder
of this Note is a financial institution, its own unsecured agreement shall be
satisfactory) or, in the case of any such mutilation, upon the surrender and
cancellation of this Note, the Company, at its expense, shall execute and
deliver, in lieu thereof,
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a new Note of like tenor and dated the date of such lost, stolen, destroyed or
mutilated Note. Any Note in lieu of which any such new Note has been so executed
and delivered by the Company shall not be deemed to be an outstanding Note.
7. Amendment and Waiver. Except as otherwise expressly provided herein,
and subject to Section 3(f), the provisions of the Notes may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company has obtained the written
consent of the holders of more than 50% of the outstanding principal amount of
the Notes; provided that no such action shall change (i) the rate at which or
the manner in which interest accrues on the Notes or the times at which such
interest becomes payable, (ii) any provision relating to the scheduled payments
or prepayments of principal on the Notes, without the written consent of the
holders of all of the Notes, or (iii) the percentage of holders now specifically
required herein to take certain actions unless a majority of the holders
affected by such change approve such action.
8. Definitions. For purposes of the Notes, the following capitalized
terms have the following meaning.
"Affiliate" means, with respect to any Person, each Person that
directly or indirectly controls, is controlled by, or is under common control
with such Person. "Affiliate" shall include all the partners of any Person which
is a partnership and with respect to any Person, all employees of such Person.
"Independent Third Party" means any Person who, immediately prior to
the contemplated transaction, does not own in excess of 5% of the Company's
Common Stock on a fully-diluted basis (a "5% Owner"), who is not controlling,
controlled by or under common control with any such 5% Owner and who is not the
spouse or descendent (by birth or adoption) of any such 5% Owner or a trust for
the benefit of such 5% Owner and/or such other Persons.
"Person" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Subsidiary" means any corporation of which the shares of stock having
a majority of the general voting power in electing the board of directors are,
at the time as of which any determination is being made, owned by the Company
either directly or indirectly through Subsidiaries.
9. Cancellation. After all principal and accrued interest at any time
owed on this Note has been paid in full, this Note shall be surrendered to the
Company for cancellation and shall not be reissued.
10. Form of Payments. Unless otherwise expressly provided herein, all
payments to be made to the holders of the Notes shall be made in the lawful
money of the United States of America in immediately available finds.
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11. Place of Payment. Payments of principal and interest are to be
delivered to the address specified in the Purchase Agreement or to such other
address or to the attention of such other person as specified by the registered
holder hereof by prior written notice to the Company.
12. Business Days. If any payment is due, or any time period for giving
notice or taking action expires, on a day which is a Saturday, Sunday or legal
holiday in the State of Delaware, the payment shall be due and payable on, and
the time period shall automatically be extended to, the next business day
immediately following such Saturday, Sunday or legal holiday, and interest shall
continue to accrue at the required rate hereunder until any such payment is
made.
13. Usury Laws. It is the intention of the Company and the holder of
this Note to conform strictly to all applicable usury laws now or hereafter in
force, and any interest payable under this Note shall be subject to reduction to
the amount not in excess of the maximum legal amount allowed under the
applicable usury laws as now or hereafter construed by the courts having
jurisdiction over such matters. If the maturity of this Note is accelerated by
reason of an election by the holder hereof resulting from an Event of Default,
voluntary prepayment by the Company or otherwise, then earned interest may never
include more than the maximum amount permitted by law, computed from the date
hereof until payment, and any interest in excess of the maximum amount permitted
by law shall be canceled automatically and, if theretofore paid, shall at the
option of the holder hereof either be rebated to the Company or credited on the
principal amount of this Note, or if this Note has been paid, then the excess
shall be rebated to the Company. The aggregate of all interest (whether
designated as interest, service charges, points or otherwise) contracted for,
chargeable, or receivable under this Note shall under no circumstances exceed
the maximum legal rate upon the unpaid principal balance of this Note remaining
unpaid from time to time. If such interest does exceed the maximum legal rate,
it shall be deemed a mistake and such excess shall be canceled automatically
and, if theretofore paid, rebated to the Company or credited on the principal
amount of this Note, or if this Note has been repaid, then such excess shall be
rebated to the Company.
*****
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IN WITNESS WHEREOF, the Company has executed and delivered this Note on
the date first written above.
XXXXXXX HOLDING INC., a Delaware corporation
By:
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Its:
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