SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this "AGREEMENT") dated as of December 20,
1999, by and among XxXxxxx Holdings Co., a Delaware corporation (the "COMPANY")
and ______________________ (the "INVESTOR").
WHEREAS, the Investor desires to subscribe for, and the Company desires
to issue to the Investor, the number of shares of common stock, par value $0.01
per share (the "COMMON STOCK"), of the Company set forth on Exhibit A hereto
(such shares of Common Stock to be subscribed for by the Investor and issued to
the Investor by the Company, the "SHARES" and together with any other shares of
Common Stock which may subsequently be issued to such Investor, the "OWNED
SHARES").
NOW, THEREFORE, IT IS AGREED:
ARTICLE I
ISSUANCE OF SHARES; CONSIDERATION
Section 1.01. ISSUANCE OF SHARES. Upon the terms set forth in this
Agreement, the Company hereby agrees to issue to the Investor, and the Investor
hereby subscribes for, the Shares.
Section 1.02. SUBSCRIPTION. In consideration for the issuance by the
Company of the Shares, the Investor shall:
(a) pay to the Company, by wire transfer of immediately
available funds to an account specified by the Company, an amount equal to 50%
of the aggregate subscription price set forth on Exhibit A hereto; and
(b) execute and deliver to the Company a Promissory Note and
Pledge Agreement (the "PROMISSORY NOTE AND PLEDGE") in the form of
Exhibit C hereto evidencing a loan (a "LOAN") in a principal amount
equal to 50% of the aggregate subscription price set forth on Exhibit A
hereto.
Section 1.03. INVESTORS' AGREEMENT. As a condition to the issuance of
the Shares, the Investor shall execute and deliver to the Company an agreement
in the form of Exhibit B hereto, pursuant to which the Investor agrees to be
bound by the terms of the Amended and Restated Investors' Agreement ("INVESTORS'
AGREEMENT"), dated as of October 2, 1998, by and among the Company and the
stockholders of the Company named therein (the "DLJ ENTITIES").
ARTICLE II
RIGHTS OF THE INVESTOR AND THE COMPANY
Section 2.01 PREEMPTIVE RIGHTS. The Company shall provide each Investor
with a written notice (a "ISSUANCE NOTICE") of any proposed issuance by the
Company of Common Stock at least 10 days prior to the proposed issuance date.
Such notice shall specify the price at which the Common Stock is to be issued
and the other material terms of the issuance. In the event the DLJ Entities
propose to purchase any such Common Stock from the Company, each Investor shall
be entitled to purchase, at the price and on the terms at which the DLJ Entities
propose to purchase such Common Stock and specified in such Issuance Notice,
such Investor's Pro Rata Portion of the Common Stock proposed to be issued. An
Investor may exercise its rights under this Section 2.01 by delivering written
notice of its election to purchase Common Stock to the Company and DLJMB within
5 days of receipt of the Issuance Notice. A delivery of such a written notice
(which notice shall specify the number of shares of Common Stock to be purchased
by the Investor submitting such notice) by such Investor shall constitute a
binding agreement of such Investor to purchase, subject to the purchase by the
DLJ Entities of their portion of such Common Stock, at the price and on the
terms specified in the Issuance Notice, the number of shares of Common Stock
specified in such Investor's written notice.
(b) In the case of any issuance of Common Stock, the Company
shall have 90 days from the date of the Issuance Notice to consummate the
proposed issuance of any or all of such Common Stock which the Investors have
not elected to purchase at the price and upon terms that are not materially less
favorable to the Company than those specified in the Issuance Notice. At the
consummation of such issuance, the Company shall issue certificates representing
the Common Stock to be purchased by each Investor exercising preemptive rights
pursuant to this Section 2.01 registered in the name of such Investor, against
payment by such Investor of the purchase price (subject to Section 2.01(c)
hereof) for such Common Stock. If the Company proposes to issue Common Stock
after such 90-day period, it shall again comply with the procedures set forth in
this Section.
(c) In the event an Investor so chooses, such Investor may
elect, in lieu of paying the purchase price referred to in Section 1.04(b)
hereof in cash, to pay an amount equal to 50% of the aggregate purchase price in
cash and request a Loan from the Company for the remainder. If such a request is
made, it shall be a condition of such Investor's purchase of the shares of
Common Stock under this Section 2.01 that such Investor execute and deliver a
Promissory Note and Pledge Agreement in the form of Exhibit C hereto in respect
of such Loan and such shares.
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(d) Notwithstanding the foregoing, no Investor shall be
entitled to purchase Common Stock as contemplated by this Section 2.01 in
connection with issuances of Common Stock (i) to employees of the Company or any
Subsidiary pursuant to employee benefit plans or arrangements approved by the
Board (including upon the exercise of employee stock options), (ii) in
connection with any bona fide, arm's-length restructuring of outstanding debt of
the Company or any Subsidiary, (iii) in connection with any bona fide,
arm's-length direct or indirect merger, acquisition or similar transaction, (iv)
in connection with an underwritten public offering, or (v) issued upon exercise
or conversion of any other Equity Securities outstanding as of the date hereof.
The Company shall not be under any obligation to consummate any proposed
issuance of Common Stock, regardless of whether it shall have delivered a
Issuance Notice in respect of such proposed issuance.
(e) The Company will use its reasonable best efforts to provide
the Issuance Notice at least 15 Business Days prior to any proposed issuance of
Common Stock.
(f) The rights of any Investor under this Section 1.04 shall
terminate automatically as to such Investor upon the termination of such
Investor's employment by the Company or any of its Subsidiaries.
(g) The following terms shall have the definitions set forth
below:
"PRO RATA PORTION" means the pro rata portion of any Common Stock
proposed to be issued by the Company with respect to which Investors shall be
entitled to exercise their rights under Section 2.01, based upon such Investor's
Adjusted Ownership of shares of Common Stock immediately prior to the date on
which the Issuance Notice is given as a percentage of the Equity Securities then
outstanding (on a fully diluted basis).
"ADJUSTED OWNERSHIP" means, with respect to any Investor, at any time,
the number of shares of Common Stock purchased pursuant to this Agreement and
owned as of such date, taking into account any stock split, stock dividend,
reverse stock split or similar event.
"EQUITY SECURITIES" means the Common Stock, securities convertible into
or exchangeable for Common Stock and options, warrants or other rights to
acquire Common Stock, preferred stock or any other equity security issued by the
Company.
"DLJMB" means DLJ Merchant Banking Partners II, L.P.
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Section 2.02. TERMINATION OF EMPLOYMENT; REPAYMENT OF LOAN. (a) Upon
the termination of an Investor's employment with the Company and its
Subsidiaries:
(a) Any outstanding Loan shall become due in accordance with the terms
of such Loan.
(b) In the event of an Investor's death or Disability, retirement at
age 62 or later or termination of employment by the Company other than for Cause
the Company or its designee shall have the right to purchase, and the Investor
shall have the right to cause the Company to purchase, all or a portion of the
Owned Shares at a per share price equal to the Fair Market Value on the date of
purchase.
(c) In the event of an Investor's termination of employment with the
Company (i) by the Company for Cause or (ii) by the Investor, the Company or its
designee shall have the right to purchase, and the Investor shall have the right
to cause the Company to purchase, all or a portion of the Shares at a per share
price equal to the lesser of (a) $23.00/share (or such other purchase price as
the Investor shall have paid for such shares) and (b) the Fair Market Value on
the date of purchase.
(d) If either the Company or the Investor elects to exercise its right
under this Section 2.02, the Company or the Investor, as the case may be, shall
deliver written notice (a "PURCHASE NOTICE") to such effect within 60 days of a
termination of employment. For purposes of this Section 2.02, the "date of
purchase" shall mean the third business day following the receipt of notice by
the other party that the purchase right is to be exercised. Payment of the
purchase price may be made in cash or by certified check; PROVIDED that if the
terms of any agreement to which the Company is a party, or any of the indentures
governing any debt securities issued by the Company or any of its subsidiaries
would prohibit the Company from effecting such payment, payment may be effected
through a reduction in the amount of the principal of any outstanding Loan or a
promissory note in each case having such commercially reasonable terms and
interest rate as may be determined by the Company in its reasonable discretion,
provided that in any event such note shall become due at such time as the
prohibitions described above shall lapse.
(e) The terms "CAUSE", "DISABILITY" and "FAIR MARKET VALUE" shall have
the meanings given to such terms in the Company's Management Incentive Plan.
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ARTICLE III
REPRESENTATIONS OF THE COMPANY
Section 3.01. CORPORATE EXISTENCE AND POWER. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. The Company has all corporate power to own its
properties and to carry on its business as now conducted.
Section 3.02. AUTHORITY AND APPROVAL. The execution and delivery of
this Agreement are within the corporate powers of the Company and have been duly
authorized by all necessary corporate action on the part of the Company. This
Agreement constitutes a legal, valid and binding agreement of the Company,
enforceable against it in accordance with its terms, except to the extent that
its enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
Section 3.03. SHARES. When issued to the Investor in accordance with
the terms hereof, the Shares will be duly authorized, validly issued, fully paid
and non-assessable.
Section 3.04. CAPITALIZATION. The authorized capital stock of the
Company (immediately prior to giving effect to the issuance of the Shares)
consists of (i) 3,500,000 shares of Common Stock, of which 3,400,532 shares are
issued and outstanding as of the date hereof, and (ii) 2,500,000 shares of
Preferred Stock, of which 342,417 shares are issued and outstanding as of the
date hereof. Except for (i) the Preferred Stock, (ii) warrants to purchase an
aggregate of 155,000 shares of Common Stock issued to the DLJ Entities on
October 2, 1998, (iii) warrants to purchase an aggregate of 150,000 shares of
Common Stock issued in connection with the Company's 12% Senior Subordinated
Notes due 2008 on October 5, 1998, (iv) options to purchase an aggregate of
44,612 shares of Common Stock issued to certain members of Global Technology
Partners, LL as of September 30, 1999 and (v) options to purchase an aggregate
of 356,257 shares of Common Stock to be issued under the Company's Management
Incentive Plan, there are no outstanding securities convertible into or
exchangeable for the capital stock of the Company and no outstanding options,
rights or warrants to purchase or subscribe for any shares of the capital stock
of the Company.
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ARTICLE IV
REPRESENTATIONS OF THE INVESTOR
Section 4.01. AUTHORIZATION. The Investor has full power and authority
to enter into this Agreement and the Promissory Note and Pledge and to perform
his obligations hereunder and thereunder.
Section 4.02. ENFORCEABILITY. Each of this Agreement and the Promissory
Note and Pledge has been duly executed and delivered by the Investor and
constitutes a legal, valid and binding obligation of the Investor, enforceable
against the Investor in accordance with its terms, except to the extent that its
enforceability may be subject to applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles.
Section 4.03. PRIVATE PLACEMENT. (a) The Investor understands that the
offering and sale of the Shares to the Investor as contemplated hereby is
intended to be exempt from registration under the Securities Act of 1933, as
amended (the "1933 ACT") pursuant to Regulation D and Section 4(2) thereunder.
(b) The Shares to be acquired by the Investor pursuant to this
Agreement are being acquired for his own account for investment and without a
view to the public distribution of the Shares or any interest therein. The
Investor understands that the Shares may not be transferred or sold unless
registered under the 1933 Act or an exemption from such registration becomes
available.
(c) The Investor has sufficient knowledge and experience in financial
and business matters so as to be capable of evaluating the merits and risks of
his investment in the Shares and the Investor is capable of bearing the economic
risks of such investment, including a complete loss of his investment in the
Shares.
(d) The Investor has been given the opportunity to ask questions of
and receive answers from the Company concerning the Company, the Shares and
other related matters. The Investor further represents and warrants to the
Company that he has been furnished with all information he deems necessary or
desirable to evaluate the merits and risks of the acquisition of the Shares and
that the Company has made available to the Investor or his agents all documents
and information relating to an investment in the Shares requested by or on
behalf of the Investor. In evaluating the suitability of an investment in the
Shares, the Investor has not relied upon any other representations or other
information (other than as contemplated by the preceding sentences) whether oral
or written made by or on behalf of the Company.
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(e) The Investor is an "Accredited Investor" as such term is defined
in Regulation D under the 1933 Act.
ARTICLE V
MISCELLANEOUS
Section 5.01. NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission to
the recipient's then current facsimile number) and shall be given,
if to the Investor, to the address set forth on the signature page, and
if to the Company, to:
XxXxxxx Holdings Co.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xx Xxxxxxx, Xx 00000
Attn: R. Xxxx XxXxxxx
Fax: (000) 000-0000
Section 5.02. AMENDMENTS AND WAIVERS. Any provision of this Agreement
may be amended modified, supplemented or waived if, but only if, such amendment
or waiver is in writing and is signed, in the case of an amendment, by each
party to this Agreement, or in the case of a waiver, by the party against whom
the waiver is to be effective.
Section 5.03. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; PROVIDED that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto.
Section 5.04. COUNTERPARTS; THIRD PARTY BENEFICIARIES. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement is intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
Section 5.05. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
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Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
Section 5.06. CAPTIONS. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
Section 5.07. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with laws of the State of New York.
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IN WITNESS WHEREOF, the Investor has executed this Agreement and the
Company has caused its corporate name to be hereunto subscribed by its officers
thereunto duly authorized, all as of the day and year first above written.
XXXXXXX HOLDINGS CO.
By:___________________________
Name:
Title:
INVESTOR
By:___________________________
Name:
Title:
Address:
Fax:
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EXHIBIT A
----------------- ---------------- -------------- -------------- --------------
NUMBER OF AMOUNT OF CASH PORTION FINANCED
SHARES OF SUBSCRIPTION OF PORTION OF
SUBSCRIBED FOR PRICE SUBSCRIPTION SUBSCRIPTION
PRICE PRICE
----------------- ---------------- -------------- -------------- --------------
Common Stock $ $ $
$23.00/share
----------------- ---------------- -------------- -------------- --------------
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EXHIBIT B
FORM OF AGREEMENT TO BE BOUND
December 20, 1999
To the Parties to the Amended and Restated Investors'
Agreement dated as of October 2, 1998
Ladies and Gentlemen:
Reference is made to the Amended and Restated Investors' Agreement
dated as of October 2, 1998 (the "INVESTORS' AGREEMENT") among XxXxxxx Holdings
Co. and the other Persons listed on the signature pages thereof and each other
Person who has or shall become a party to the Investors' Agreement as provided
therein. Capitalized terms used herein and not defined have the meanings
ascribed to them in the Investors' Agreement.
In consideration of the covenants and agreements contained in the
Investors' Agreement, the undersigned hereby confirms and agrees that it shall
be bound as a "Stockholder" by all of the provisions thereof.
This letter shall be construed and enforced in accordance with the
internal laws of the State of Delaware.
Very truly yours,
Signed:___________________
Printed:___________________
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EXHIBIT C
FORM OF PROMISSORY NOTE AND PLEDGE
New York, New York
December 20, 1999
For value received,________________ (the "INVESTOR") promises to pay to
the order of XxXxxxx Aircraft Holdings, Inc., a Delaware corporation (the
"COMPANY"), also referred to herein as the "LENDER"),
$ (the "LOAN"),
---------------
the principal amount of which will be repayable in full on the eighth
anniversary of the date hereof (the "PAYMENT DATE", subject to prepayment as set
forth below, and subject to the following sentence. If at any time the Investor
disposes of any shares of Common Stock, par value $0.01 per share, of the
Company (the "COMMON SHARES") pledged hereunder, the proceeds of any such sale
shall be used by the Investor as follows:
(i) first, to pay any accrued but unpaid interest on the Loan, and
(ii) second, to repay the principal amount of the Loan (or portion
thereof), promptly upon receipt of such proceeds.
The Investor promises to pay on the Payment Date, all accrued and
unpaid interest on the Loan on such date as well as all outstanding principal on
such date. Interest will accrue on the outstanding principal amount of the Loan,
and will be compounded annually, at a rate equal to the applicable federal rate
as published by the Treasury Department of the United States of America and
effective on November 30, 1999. All payments of principal and interest shall be
made in lawful money of the United States in Federal or other immediately
available funds at the office of the Company x/x XXX Merchant Banking Partners
II, L.P. , 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or as otherwise notified
to the Investor by the Company. The Investor may pay the Loan without penalty in
whole at any time, or from time to time in part, by paying the principal amount
to be paid at such time, together with all accrued interest to the date of
payment.
SECURITY INTEREST. To secure payment of the principal of and all
interest on the Loan, the Investor hereby assigns, pledges and grants to DLJ
Merchant Banking II, Inc. (the "AGENT"), for the benefit of the Lender, a
security interest in (and, to the extent not previously delivered, delivers to
the Agent): (i) _______________ Common Shares acquired by the Investor from the
Company as of the date hereof and all other shares of capital stock acquired by
the Investor from the Lender (collectively, the "PLEDGED SHARES"); (ii) all
rights and privileges with respect to the Pledged Shares; (iii) all income and
profits thereon; (iv) all dividends, payments and other distributions with
respect thereto; and (v) all proceeds thereof and substitutions therefor, other
than any cash income, profits, dividends, payments, distributions or proceeds so
long as the
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Investor is not in default hereunder (collectively, the "COLLATERAL"). The
Investor is delivering to the Agent certificates representing the Pledged
Shares in pledge hereunder.
Certificates evidencing the Pledged Shares shall remain in the physical
custody of the Agent at all times until the Investor has made payment in full of
all principal and interest on the Loan. However, the Agent may elect to release
certificates on the request of Investor in connection with a transfer by
Investor which is permitted hereunder, so long as the proceeds of such sale are
applied as provided herein and, in its reasonable discretion, the Agent
determines that the remaining Collateral is sufficient to secure the Loan.
This Promissory Note and Pledge constitutes a security agreement for
purposes of the Uniform Commercial Code in all relevant jurisdictions. Upon the
nonpayment of principal or interest when due hereunder or under any other note
issued in connection with any other loan made by Lender to Investor on similar
terms (a "DEFAULT"), the Agent (i) may, by notice to the Investor, declare the
Loan (together with accrued and unpaid interest thereon) to be, and the Loan
shall thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Investor, and (ii) shall have all the rights and remedies of a secured party
provided in the Uniform Commercial Code in force in New York.
The Pledged Shares are granted as security only and shall not subject
the Agent or the Company to, or in any way affect or modify, any obligation or
liability of the Investor with respect to any of its Collateral or any
transaction in connection therewith.
The Investor agrees that it will, at the Company's expense and in such
manner and form as the Agent may reasonably require, execute, deliver, file and
record any financing statement, specific assignment or other paper and take any
other action that may be reasonably necessary or desirable, or that the Agent
may reasonably request, in order to create, preserve, or validate any security
interest or to enable the Agent to exercise and enforce its rights hereunder
with respect to any of the Collateral. To the extent permitted by applicable
law, the Investor hereby authorizes the Agent to execute and file, in the name
of the Investor or otherwise, Uniform Commercial Code financing statements
(which may be carbon, photographic, photostatic or other reproductions of this
Promissory Note and Pledge or of a financing statement relating to this
Promissory Note and Pledge) which the Agent in its sole discretion may deem
necessary or appropriate to further perfect its security interest in the
Collateral.
Limited Recourse. The Company's recourse under this Promissory Note and
Pledge is limited solely to the Collateral.
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Remedies Upon Default. To the extent a Default shall have occurred and
be continuing, the Agent may cause any or all of the Pledged Shares to be
transferred of record into the name of the Agent or its nominee. The Investor
will promptly give to the Agent copies of any notices or other communications
received by him with respect to Pledged Shares registered in the name of the
Investor. The Agent will promptly give to the Investor copies of any notices and
communications received by the Agent with respect to Pledged Shares registered
in the name of the Agent or its nominee.
If a Default shall have occurred and be continuing, the Agent shall
have the right to receive and to retain as Collateral hereunder for the benefit
of the Company all dividends, interest and other payments and distributions made
upon or with respect to the Collateral, and the Investor shall take all such
action as the Agent may deem necessary or appropriate to give effect to such
right.
Voting, etc., Prior to Default. Unless a Default shall have occurred
and be continuing, the Investor shall have the right, from time to time, to
receive and retain all cash dividends, interest and other payments and
distributions made upon or with respect to the Collateral and to vote and to
give consents, ratifications and waivers with respect to the Pledged Shares, and
the Agent shall deliver to the Investor such proxies, powers of attorney,
consents, ratifications and waivers in respect of any of the Pledged Shares
which are registered in the name of the Agent or its nominee.
If a Default shall have occurred and be continuing, the Agent shall
have the right to the extent permitted by law (and the Investor shall take all
such action as may be necessary or appropriate to give effect to such right) to
vote and to give consents, ratifications and waivers, and take any other action
with respect to any or all of the Pledged Shares with the same force and effect
as if the Agent were the absolute and sole owner thereof.
Agent Appointed Attorney in Fact. The Investor hereby irrevocably
appoints the Agent its true and lawful attorney, with full power of
substitution, in the name of the Investor, the Agent or otherwise, for the sole
use and benefit of the Agent, but at the expense of the Agent, to the extent
permitted by law, to exercise, at any time and from time to time while a Default
has occurred and is continuing, all or any of the following power with respect
to all or any of the Collateral:
(i) to demand, xxx for, collect, receive and give acquittance for
any and all monies due to become due upon or by virtue
thereof;
(ii) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto;
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(iii) to sell, transfer, assign or otherwise deal in or with the
same or the proceeds or avails thereof, as fully and
effectually as if the Agent were the absolute owner thereof;
and
(iv) to extend the time of payment of any or all thereof and to
make any allowance and other adjustments with reference
thereto:
PROVIDED that the Agent shall give the Investor not less than ten days' prior
written notice of the time and place of any sale or other intended disposition
of any of the Collateral. The Agent and the Investor agree that such notice
constitutes "reasonable notification" within the meaning of Section 9-504(3) of
the Uniform Commercial Code.
The Investor covenants and agrees that, in the event that (i) any of
the Collateral shall become subject to any lien or security interest other than
the liens and security interests in favor of the Agent created hereunto, or (ii)
the lien on and security interest in the Collateral in favor of the Agent shall
cease to be a first priority perfected security interest in and lien on any of
such Collateral (except pursuant to a release herein contemplated), the Investor
will promptly take whatever reasonable action may be necessary to release such
other liens or security interests or to restore the Agent's lien on and security
interest in the Collateral as a first priority perfected security interest or
lien, as the case may be. The Investor acknowledges that money damages would not
be a sufficient remedy for the breach of the Investor's covenant in this
paragraph and that, in addition to all other remedies that may be available, the
Agent shall be entitled to specific performance as a remedy for any such breach.
The Investor agrees that it will forthwith upon demand pay to the Agent
and the Company, as the case may be, the amount of any and all reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel and of any other parties, which the Agent or the Company may incur in
connection with (w) the enforcement of this Promissory Note and Pledge,
including such expenses as are incurred to preserve the value of the Collateral
and the validity, perfection, rank and value of any security interest, (x) the
collection, sale or other disposition of any of the Collateral, (y) the exercise
by the Agent of any of the rights conferred upon it hereunder or (z) any
Default; PROVIDED, HOWEVER, that in no event shall the total amount collected
pursuant to this paragraph exceed the value of the Collateral.
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For the purpose of this Promissory Note and Pledge, notices and all
other communications provided for in this Promissory Note and Pledge shall be in
writing and shall be given to the respective addresses or telecopy numbers set
forth below:
if to the Investor, to the address set forth on the signature page
hereof:
if to the Company, to: XxXxxxx Holdings Co.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxxxx, XX 00000
Attention: R. Xxxx XxXxxxx
Telefax: (000) 000-0000
if to the Agent: DLJ Merchant Banking Partners II, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxx
Telefax: (000) 000-0000
PROVIDED, that all notices to the Company shall be directed to the attention of
the Board with a copy to the Secretary of the Company, or to such other address
as either party may have furnished to the other in writing in accordance
herewith. Each such notice or other communication shall be effective (i) if
given by telecopy, when such telecopy is transmitted to the telecopy number
specified in this paragraph and telephonic confirmation of receipt thereof is
obtained, (ii) if given by prepaid overnight courier, one business day after
deposit with such courier or (iii) if given by United States certified or
registered mail, postage prepaid, three business days after deposit with the
United States postal service; PROVIDED THAT notice of change of address shall be
effective only upon receipt.
No failure or delay by the Agent in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Any provision of this Promissory Note and Pledge may be amended or
waived if, and only if, such amendment or waiver is in writing and is signed by
The Investor, the Company and the Agent. The provisions of this Promissory Note
and Pledge shall be binding upon the Investor and its successors, assigns,
personal representatives, estate and heirs and shall inure to the benefit of the
Company and its successors and assign.
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This Promissory Note and Pledge shall be governed by and construed in
accordance with the laws of the State of New York.
Upon the repayment in full of the principal of and interest on the
Loan, the security interest shall terminate and all rights to the Collateral
shall revert to the Investor, and the Agent shall take all actions which may
reasonably be requested by the Investor to reflect the termination of such
security interest. In addition, in the case of a transfer of the Collateral
permitted hereunder in which the proceeds are applied as provided herein, the
security interest in the Collateral so transferred shall terminate and the Agent
shall take all actions which may reasonably be requested by the Investor to
reflect the termination of such security interest.
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This Promissory Note and Pledge constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understanding, oral or written, relating to the subject matter
hereof.
By:___________________________
Name:
Address:
Fax:
Agreed and Acknowledged:
XxXXXXX HOLDING CO. DLJ MERCHANT BANKING II, INC.
By:___________________ By:____________________________
Name: Name:
Title: Title:
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