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EXHIBIT 10.34
THIS NOTE IS SUBORDINATED PURSUANT TO THE TERMS OF A SUBORDINATION AGREEMENT IN
FAVOR OF UNION BANK OF CALIFORNIA, N.A., DATED AS OF DECEMBER 1, 2000, AND ANY
AMENDMENTS OR MODIFICATIONS THERETO.
SUBORDINATED PROMISSORY NOTE
U.S. $13,549,000.00 December 1, 2000
FOR VALUE RECEIVED, the undersigned, FABTECH, INC., a Delaware corporation
(the "Debtor"), hereby promises to pay to LITE-ON POWER SEMICONDUCTOR CORP.,
a Taiwan corporation (the "Payee"), the principal sum of Thirteen Million
Five Hundred Forty-Nine Thousand United States Dollars (U.S.
$13,549,000.00), together with interest from the date hereof on the unpaid
principal balance from time to time outstanding at the rate of LIBOR plus
1.0% (computed on the basis of a 360-day year), principal and interest to be
payable as follows:
(a) The amount of U.S. $3,549,000.00, together with interest
accrued thereon, shall be payable on March 31, 2001.
(b) The principal balance of U.S. $10,000,000.00 shall be payable
in four (4) equal quarterly installments of U.S. $2,500,000.00 each, together
with interest accrued thereon, on June 30, September 30, and December 31, 2001
and March 31, 2002.
The principal of and interest on this Note shall be paid in lawful money of the
United States of America at the principal office of the Debtor, 777 Northwest
Blue Parkway, Lee's Summit, Missouri, or at such other place as, from time to
time, may be designated by the Payee by written notice to the Debtor.
The Debtor reserves the right at any time and from time to time
to prepay all or any portion of this Note without penalty or premium, but any
such prepayment shall be applied first against interest which has accrued as of
the date thereof and then against the unpaid principal balance.
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This Note is the promissory note referred to in Section 6.8 of the Stock
Purchase Agreement dated as of November 28, 2000, among the Debtor and the
Payee, among others, and is entitled to all of the benefits thereunder. The
principal of this Note represents U.S. $11,770,000.00 advanced by the Payee
to the Debtor, together with U.S. $1,779,000.00 in interest accrued thereon
to the date hereof.
1. Subordination.
The Debtor and the Payee hereby covenant and agree that
notwithstanding anything to the contrary contained in this Note, the payment of
the principal of and interest on this Note expressly hereby is subordinated in
right of payment to the prior payment or provision for payment in full of all
present and future Senior Indebtedness of the Debtor and all renewals,
extensions and refundings of any such Senior Indebtedness. As used herein, the
term "Senior Indebtedness" shall mean the principal of, and interest on, and all
other amounts due on or in connection with, any liability of the Debtor for
money borrowed from a bank or other financial institution, whether now existing
or hereafter incurred. The Payee shall take such further actions, including the
execution of additional subordination agreements, as may be required by any bank
or other financial institution in order to provide further assurances of the
subordination of this Note to all Senior Indebtedness.
In the event of any distribution of assets of the Debtor upon the
dissolution, liquidation, winding up or reorganization of the Debtor, whether
voluntary or involuntary, and whether in bankruptcy, insolvency or receivership
proceedings, or upon the assignment for the benefit of creditors, sale of all or
substantially all of the assets of the Debtor or the marshalling of the assets
and liabilities of the Debtor, no amount shall be paid by the Debtor hereunder
to the Payee, unless and until all other indebtedness to which this Note is
subordinated shall have been paid in full, or otherwise discharged, or provision
for payment shall have been otherwise made, together with all interest thereon
and all other amounts payable in respect thereof, and the Debtor and any
receiver or trustee in bankruptcy of the Debtor shall make any payments to which
the Payee would otherwise be entitled but for the subordination provisions
hereof directly to the holders of such other indebtedness ratably and to the
extent necessary to pay in full all such other indebtedness, together with
interest thereon and other amounts payable in respect thereof.
Upon the happening of an event of default (or if an event of
default would result upon any payment with respect to this Note) with respect to
any Senior Indebtedness, as such event of default is defined therein or in the
instrument under which it is outstanding, permitting the holders to accelerate
the maturity thereof, and if the default is other than default in payment of the
principal of or interest on such Senior Indebtedness, upon written notice
thereof given to the undersigned by the
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holders of such Senior Indebtedness or their representative, then, unless and
until such event of default shall have been cured or waived or shall have ceased
to exist, no payment shall be made by the Debtor with respect to the principal
of or interest on this Note.
In the event the Payee shall receive payment, from any source or
in any manner, of any amount in respect of the principal of or interest on this
Note, or in respect of a transfer or assignment of this Note to the Debtor or
any subsidiary of the Debtor, at a time when, pursuant to the subordination
provisions hereof, the Payee is not entitled to receive payment of such amount,
the Payee shall receive and hold such payment in trust for the holders of all
other indebtedness to which this Note is subordinated and shall on demand pay to
or for the account of the holders of all such other indebtedness ratably and to
the extent necessary to pay in full all such other indebtedness, together with
interest thereon and other amounts payable in receipt thereof, the amount, but
not to exceed the amount, so received.
Subject to the payment in full of all indebtedness of the Debtor
to which this Note is subordinate, the Payee shall be subrogated to the rights
of the holders of such other indebtedness to receive payment or distribution of
assets of the Debtor applicable to such other indebtedness until this Note shall
be paid in full, and no such payments or distributions to the holders of such
other indebtedness to which this Note is subordinate shall, as between the
Debtor and the Payee, be deemed to be a payment by the Debtor to, or on account
of, this Note, it being understood that the subordination provisions of this
Note are, and are intended solely for the purpose of, defining the relative
rights of the Payee, on the one hand, and the holder of other indebtedness to
which this Note is subordinate, on the other hand, and nothing contained herein
is intended to or shall impair, as between the Debtor and the Payee, the
obligation of the Debtor, which is unconditional and absolute, to pay to the
Payee the principal of and interest on this Note as and when the same shall
become due and payable in accordance with the terms hereof.
The Payee, by acceptance hereof, acknowledges and agrees that
each holder of indebtedness to which this Note is subordinated shall be deemed
to have acquired such indebtedness in reliance upon the subordination provisions
of this Note.
3. Waivers.
The Debtor, for itself and its legal representatives, successors
and assigns, expressly waives presentment, protest, demand, notice of dishonor,
notice of nonpayment, notice of maturity, notice of protest, presentment for the
purpose of accelerating maturity, and diligence in collection of every kind and
to the fullest extent permitted by law, the right to plead any statute of
limitations as a defense of any
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demand hereunder, and consents that the Payee may extend the time for payment or
otherwise modify the terms of payment of any part or the whole of the debt
evidenced hereby.
4. Governing Law.
This Note in all respects shall be governed by and construed
under the laws of the State of California applicable to contracts made and to be
performed wholly within that state.
5. Assignment.
The Payee may assign its right, title and interest in and to this
Note to any person who controls, is controlled by or is under common control
with the Payee in connection with its own liquidation and dissolution, and the
term "Payee" shall be deemed to include any such person.
Executed at Los Angeles, California as of the 1st day of
December, 2000.
FABTECH, INC.
By: /s/ Walter Buchanan, President
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