EXHIBIT 4.3
THIS NOTE AND ANY CAPITAL STOCK INTO WHICH THIS NOTE MAY BE CONVERTED
(COLLECTIVELY, THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR THE SECURITIES LAWS OF
ANY OTHER JURISDICTION. NO SALE, OFFER OR TRANSFER OF THIS NOTE SHALL BE
MADE, AND NO ATTEMPTED SALE, OFFER OR TRANSFER SHALL BE EFFECTIVE, UNTIL
THE HOLDER DESIRING TO EFFECT SUCH SALE, OFFER OR TRANSFER HAS OBTAINED AN
OPINION OF COUNSEL ACCEPTABLE TO THE BORROWER TO THE EFFECT THAT THE
REQUESTED SALE, OFFER OR TRANSFER DOES NOT VIOLATE THE TERMS OF THE ACT OR
ANY APPLICABLE STATE SECURITIES LAW OF WHICH SUCH COUNSEL IS AWARE.
9% CONVERTIBLE SUBORDINATED PROMISSORY NOTE
$10,000,000
October 4, 2004
Unless converted to capital stock pursuant to Section 3 hereof,
Continental Global Group, Inc., a Delaware corporation (the "Borrower"), hereby
unconditionally promises to pay to the order of N.E.S. Investment Co., a
Delaware corporation ("Holder"), in lawful money of the United States of America
and in immediately available funds, the principal amount of Ten Million Dollars
($10,000,000) (the "Loan"), together with accrued and unpaid interest as
provided herein, on the later of (the "Maturity Date") (a) October 2, 2008, and
(b) one business day after all of the Senior Debt (as defined below) is paid in
full, in cash. This Convertible Subordinated Promissory Note (this "Note")
evidences the unpaid principal amount of the Loan together with all accrued and
unpaid interest thereon. The principal of (and, upon the Maturity Date, accrued
interest on) this Note shall be payable in lawful money of the United States of
America by check mailed to the address of the Holder of such Note or by wire
transfer of immediately available funds to such account as the Holder may
designate in writing.
The Holder agrees to make the Loan on the date hereof subject to and in
accordance with the terms and conditions hereof. This Note is issued in
accordance with and subject to the following terms and conditions:
1. INTEREST.
(a) The outstanding principal amount of the Loan and Additional
Principal Amounts (as defined below) shall accrue interest from the date hereof
until all payments hereunder have been irrevocably paid or provided for in full
or this Note has been converted as provided in Section 3 hereof at a per annum
rate equal at all times to the lesser of (i) the maximum lawful rate of interest
in effect at such time under applicable law, and (ii) nine percent (9.0%),
compounded annually. Interest shall be calculated on the basis of a year of 365
days, shall accrue on the outstanding principal amount of this Note until all
payments hereunder have been paid or provided for in full or the Note has been
converted as provided in Section 3 and shall be paid on each April 1 and each
October 1 (each an "Interest Payment Date") hereafter until the Maturity Date as
provided in Section 1(b) below.
(b) All interest due on any Interest Payment Date will, in lieu of
being paid in cash, be added to the outstanding principal amount of the Note
(such additional principal amount, the "Additional Principal Amount") and shall
be deemed to have been paid in the form of such Additional Principal Amounts.
Additional Principal Amounts shall accrue interest from the Interest Payment
Date on which such Additional Principal Amount was created.
2. EVENTS OF DEFAULT.
Each and any of the following events shall constitute an "Event of
Default":
(i) the Borrower fails to repay the principal amount of this Note,
or any interest thereon, when due; or
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(ii) the Borrower shall be liquidated, dissolved, adjudicated
insolvent, or shall fail to pay, or shall admit in writing its inability to pay
its debts as they mature, or shall make a general assignment for the benefit of
creditors; or the Borrower shall apply for or consent to the appointment of any
receiver, custodian, trustee or similar officer for it or for all or any
substantial part of its property, or such receiver, custodian, trustee or
similar officer shall be appointed without the application or consent of the
Borrower; or the Borrower shall institute (by petition, application, answer,
consent or otherwise), or take any action to authorize the institution of, any
bankruptcy, insolvency, reorganization, dissolution, liquidation or similar
proceeding relating to the Borrower under the laws of any jurisdiction; or any
such proceeding shall be instituted (by petition, application or otherwise)
against the Borrower and such proceeding shall not be dismissed within sixty
(60) days after being instituted.
Notwithstanding any Event of Default, the Holder shall have no enforcement
rights whatsoever, including, but not limited to, accelerating the date upon
which this Note shall mature, unless and until all of the Senior Debt has been
paid in full, in cash. After the Senior Debt has been paid in full in cash and
in the event that an Event of Default has occurred and is continuing, the unpaid
principal amount of, and accrued and unpaid interest on, this Note shall
automatically become immediately due and payable, together with all other
amounts payable under this Note, without presentment, demand, protest, notice of
intent to accelerate, notice of acceleration or further notice of any kind, all
of which are hereby expressly waived by the Borrower. Notwithstanding any
provision of section 3 hereof, upon the occurrence and during the continuance of
an Event of Default, no portion of the Total Convertible Amount (as defined
below) shall be convertible into common stock of the Borrower.
3. CONVERSION.
(a) Subject to and upon compliance with the provisions hereof, the
Holder shall have the right, from time to time, to convert all or any portion of
the Total Convertible Amount into as many shares of common stock of the Borrower
as the portion of the Total Convertible Amount so converted is a multiple of the
Conversion Price. For the purposes of this Note, the term "Total Convertible
Amount" shall mean, on any date, the sum of the unpaid principal amount of this
Note and the accrued and unpaid interest thereon on such date. For the purposes
of this Note, the term "Conversion Price" shall mean, as of any date, the fair
market value of one share of common stock of the Borrower on such date, as
reasonably determined by the board of directors of the Borrower.
(b) This Note may be converted on any business day prior to the
Maturity Date (any such date of conversion, a "Conversion Date"). In order to
exercise such conversion privilege, the Holder shall surrender this Note to the
Borrower accompanied by a written statement designating the portion of the Total
Convertible Amount to be converted. If the Holder elects to convert this Note,
or a portion thereof, such conversion (a "Conversion") shall be deemed to have
taken place immediately prior to the close of business on the Conversion Date,
and at such time the rights of the Holder as Holder of this Note shall cease to
the extent of the portion of the Total Convertible Amount so converted and the
Holder shall be treated for all purposes (with respect to such portion) as the
record holder of the common stock issuable upon conversion at such time.
(c) The Borrower, at its expense (including the payment by it of any
applicable issue taxes, other than any taxes which may then be payable in
respect of the transfer of any such shares), will issue and deliver to the
Holder as promptly as practicable on or after a Conversion Date a certificate or
certificates for the number of shares of common stock of the Borrower issuable
upon the Conversion. If this Note shall be converted only in part, the Borrower
shall, upon such conversion, execute and deliver to the Holder, at the expense
of the Borrower, a new Note in principal amount equal to the unconverted portion
of the Total Convertible Amount (dated as of the Conversion Date). No fractional
shares of common stock shall be issued upon conversion of this Note, nor shall
any Conversion on a Conversion Date prior to the Maturity Date result in a cash
payment to Holder in respect of any fractional portion of the Total Convertible
Amount.
4. INVESTMENT INTENT. The Holder hereby represents and warrants to the
Borrower that the Holder is (i) an "accredited investor" as defined in
Regulation D of the Securities Act of 1933, as amended (the "Act"), and (ii)
acquiring this Note for investment and not with a view to the distribution
thereof. The Holder understands that this Note is not, and any stock acquired on
conversion hereof at the time of issuance will not be, registered under the Act
on the grounds that the issuance of this Note and such capital stock is exempt
from registration under the Act, and that the Borrower's reliance on such
exemption is predicated on the Holder's representations set forth herein. The
Holder represents that it is experienced in evaluating and investing in
companies such as the Borrower, is
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familiar with the risks associated with the business and operations of such
companies, has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of its investment, and has
the ability to bear the economic risks of its investment. The Holder understands
that this Note (and any capital stock issued on conversion hereof, may not be
sold, transferred, or otherwise disposed of without registration under the Act
or an exemption therefrom, and that in the absence of an effective registration
statement covering this Note (or the capital stock issued on Conversion thereof,
or an available exemption from registration under the Act, this Note and any
capital stock of the Borrower must be held indefinitely.
5. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO WITHOUT GIVING EFFECT TO ANY
CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE THE APPLICATION OF
THE DOMESTIC SUBSTANTIVE LAWS OF ANY OTHER STATE, AND SHALL BIND AND INURE TO
THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
6. NOTICES. All notices provided for herein shall be delivered (a) if to
the Borrower, to it at Continental Global Group, Inc., 438 Industrial Drive,
Winfield, Alabama 35594, Attention: President, and (b) if to the Holder, to it
at N.E.S. Investment Co., 6140 Parkland Boulevard, Mayfield Heights, Ohio 44124,
Attention: Robert Tomsich.
7. MISCELLANEOUS. No failure or delay on the part of the Holder in
exercising any power or right hereunder, and no course of dealing between the
Borrower and the Holder of this Note, shall operate as a waiver thereof. Any
purported modification or waiver irrespective of the Borrower's consent of any
provision of this Note shall be void ab initio. No notice to or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances. This Note shall inure to the
benefit of the Holder of this Note and the Borrower and their respective
successors and assigns and be binding upon the Holder of this Note and the
Borrower and their respective successors and assigns. This Note and the
agreements, documents and instruments executed in connection therewith,
constitute the entire understanding between the Borrower and the Holder with
respect to the subject matter hereof and supersede any prior agreements, written
or oral, with respect thereto.
8. DESCRIPTIVE HEADINGS. Section headings appearing in this Note have been
inserted for convenience of reference only and shall be given no substantive
meaning or significance whatsoever in construing the terms and provisions of
this Note.
9. SEPARABILITY. Should any provision of this Note be judicially declared
to be invalid, unenforceable or void, such decision will not have the effect of
invalidating or voiding the remainder of this Note, and the parties hereto agree
that the provision of this Note so held to be invalid, unenforceable or void
will be deemed to have been stricken herefrom and the remainder will have the
same force and effectiveness as if such provision had never been included
herein, provided, however the parties hereto shall use their best efforts
replace the provision so deemed to have been stricken herefrom with a provision
that the parties reasonably believe to be valid and enforceable and which has a
substantially identical economic and legal effect as the provision so deemed to
have been stricken herefrom.
10. TRANSFERABILITY. This Note may not be sold, assigned, pledged, or
otherwise transferred by the Holder without the prior written consent of the
Borrower.
11. SUBORDINATION OF NOTE TO SENIOR INDEBTEDNESS. (a) All indebtedness
evidenced by this Note shall be subordinated and junior in right of payment to
the prior payment in full in cash of all amounts due under the Senior Debt.
Borrower and Holder agree that, except as provided in section 1(b) hereof, no
payment (whether directly, by purchase, redemption or exercise of any right of
setoff or otherwise) in respect of this Note, whether as principal, interest or
otherwise, and whether in cash, securities or property shall be made by or on
behalf of the Borrower or received, accepted or demanded, directly or
indirectly, by or on behalf of the Holder unless and until all Senior Debt has
been paid in full in cash. The term "Senior Debt" shall mean all of the
following:
(i) all obligations (the "Credit Agreement Obligations") of
any kind or nature, including but not limited to principal, interest, fees and
expenses, of the Borrower and any of its subsidiaries pursuant to the
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Second Amended and Restated Credit Facility and Security Agreement, dated as of
October 4, 2004, among Bank One, NA ("Bank One"), Continental Conveyor &
Equipment Company ("Conveyor") and Goodman Conveyor Company ("Goodman");
(ii) all obligations (the "Note Obligations") of any kind or
nature, including but not limited to principal of and interest on the Borrower's
9% Series A Senior Secured Notes and 13% Series B Senior Secured Notes, fees and
expenses, of the Borrower and any of its subsidiaries pursuant to the Indenture,
dated as of October 4, 2004, among Wells Fargo Bank Minnesota, N.A., as trustee
(the "Trustee"), Borrower, Conveyor and Goodman;
(iii) all obligations of any kind or nature, including but not
limited to principal, interest, fees and expenses, of the Borrower and any of
its subsidiaries pursuant to any Refinancing Indebtedness. For the purposes of
this Note, the term "Refinancing Indebtedness" shall mean any indebtedness of
the Borrower or any of its subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace defease ore
refund any or all of the Credit Agreement Obligations and/or the Note
Obligations.
(b) No cash payment or other distribution on account of the
indebtedness under this Note (other than as provided in section 1(b)) shall be
made by the Borrower unless full payment of amounts due or to become due under
the Senior Debt has been made or duly provided for by the Borrower.
(c) Upon any payment or distribution of assets of the Borrower of
any kind or character, whether in money, property or securities, to creditors
upon any dissolution or winding up or total or partial liquidation or
reorganization of the Borrower, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or to
become due upon all Senior Debt of the Borrower shall first be paid in full in
cash, before any payment is made on this Note; and upon any such declaration of
acceleration or dissolution or winding up or liquidation or reorganization, any
distribution of assets of the Borrower of any kind or character, whether in
money, property or securities, to which the Holder of this Note would be
entitled except for the provisions hereof shall be paid by the Borrower or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, or by the Holder of this Note if received
by it directly, to the holders of the Senior Debt, or their representatives, to
the extent necessary to pay all such Senior Debt in full in cash, after giving
effect to any concurrent payment or distribution to or for the benefit of the
holders of such Senior Debt, before any payment or distribution is made
hereunder to the Holder of this Note.
(d) All rights and interests of the holders of Senior Debt
hereunder, and all agreements and obligations of the Borrower and Holder, shall
remain in full force and effect irrespective of:
(i) any lack of validity or enforceability of any instrument
or agreement evidencing the Senior Debt or delivered in conjunction therewith;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Senior Debt, or any amendment or waiver
or other modification, whether by course of conduct or otherwise, of, or consent
to departure from, the terms of the Senior Debt as of the date hereof;
(iii) any exchange, release or nonperfection of any lien in
any collateral, or any release, amendment, waiver or other modification, whether
in writing or by course of conduct or otherwise, of or consent to departure
from, any guarantee of any of the Senior Debt; or
(iv) any other circumstances that might otherwise constitute a
defense available to, or a discharge of the Borrower or any of its subsidiaries
in respect of the Senior Debt, or of the Holder or the Borrower in respect of
this Note.
(e) Subject to the prior payment in full in cash, of all Senior
Debt, the Holder of this Note shall be subrogated to the rights of the holders
of Senior Debt to receive payment or distributions of assets of the Borrower
applicable to the Senior Debt until this Note shall be paid in full, and no such
payment or distribution to
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the holders of Senior Debt shall, as among the Borrower, its creditors other
than the holders of Senior Debt, and the Holder of this Note, be deemed to be a
payment by the Borrower to or on account of this Note.
12. THIRD PARTY BENEFICIARIES. The Holder and the Borrower each
acknowledge and agree that Bank One, the Trustee, each of their respective
successors in interest and any holder, trustee, agent or representative with
respect to any Refinancing Indebtedness are and shall be third party
beneficiaries of the subordination provisions of this Note and of the obligation
of the parties hereto not to make or accept payments in cash in respect of the
obligations under this Note prior to the Maturity Date.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Borrower has duly executed and delivered this Note
as of the date first written above.
CONTINENTAL GLOBAL INC.
By: ________________________________
Name:
Title:
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