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AGREEMENT
This Agreement made as of the 12th day of April, 1996, by and between
NOVELL, INC., a Delaware corporation, with offices at 0000 Xxxxxxx Xxxxx, Xxx
Xxxx, Xxxxxxxxxx 00000 ("Novell"); and MICRODYNE CORPORATION, a Maryland
Corporation with principal offices at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xx
00000 ("Microdyne"), Novell and Microdyne being herein collectively referred to
as the "Parties" provides as follows:
RECITALS
WHEREAS, Novell and Microdyne have entered into numerous commercial
agreements over a period of years for the mutual benefit of both Parties; and
WHEREAS, the Parties have recently conducted a review of the financial
results of said agreements for the purpose of resolving any outstanding claims
among the Parties and to provide a foundation for future cooperation.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and other good and valuable consideration, the receipt
and adequacy of which is hereby acknowledged by both Parties, the Parties agree
as follows:
ARTICLE 1
OUTSTANDING ACCOUNTS
In settlement of all outstanding trade accounts and contract claims by
and between the Parties as of the date of this Agreement (except as provided
for in Article 3 herein), Microdyne will pay to Novell the amounts specified
below according to the following calculation and payment schedule:
(1) Calculation:
$10,024,293 accounts payable due Novell at March 29,
1996
minus
$3,489,293 for January 1996 royalty returns due to
Microdyne
minus
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$1,500,000 estimate for anticipated net product
returns to be credited to Microdyne; provided that if
the net product return credit activity prior to May
1, 1996 is less than $1,500,000 then Microdyne will
pay Novell the difference in cash by May 31, 1996.
If the net product return credit activity prior to
May 1, 1996 is greater than $1,500,000, then Novell
will credit Microdyne's account for the difference
upon receipt of Microdyne's April royalty report.
Total
$5,035,000 amount due to Novell.
(2) Payment Schedule
$1,000,000 cash payment to be paid by Microdyne on
April 17, 1996.
$1,000,000 cash payment to be paid by Microdyne on
May 3, 1996.
$3,035,000 in a promissory note substantially in the
form attached hereto as Exhibit A for two years and
bearing an eight percent (8%) annual interest rate
commencing April 17, 1996 with payments of principal
and interest commencing May 17, 1996.
(3) Trade Credit
Novell will release any restrictions on trade credit
normally extended to Microdyne in the ordinary course
of business as of the date of this Agreement. Novell
retains the right to impose credit restrictions in
the event Microdyne fails to remain current on
payment obligations or as otherwise provided for
under the existing agreements between the parties.
ARTICLE 2
PURCHASE OF HARDWARE TECHNOLOGY RIGHTS
AND MARKETING RIGHTS
Microdyne will purchase the exclusive, royalty-free, perpetual right
to distribute certain hardware technology currently sold by Microdyne under
license from Novell as more fully set forth on Exhibit B ("Hardware") effective
as of April 17, 1996. As additional consideration for the purchase price,
Novell grants Microdyne a continuing, royalty-free right to market the Hardware
with Novell's trade dress and such product designations as currently
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provided for and as listed on Exhibit B. Nothing herein shall be construed to
grant Microdyne any right or interest in the underlying software technology
(source code) associated with the Hardware except as otherwise necessary to
exercise the rights granted herein. Microdyne will pay the purchase price of
$6,820,000 according to the following schedule:
(1) $100,000 cash payment by April 17, 1996.
(2) $900,000 cash payment by June 1, 1996.
(3) $5,820,000 in a promissory note substantially in the
form attached hereto as Exhibit C for five (5) years and
bearing an eight percent (8%) annual interest rate commencing
April 17, 1996 with monthly payments of principal and interest
commencing on May 17, 1996 and all outstanding principal and
interest due on April 17, 2001.
In the event Microdyne is in default under the payment terms of
Article 1 or Article 2 of this Agreement, or the Commercial Notes attached
hereto as Exhibit A and Exhibit C, the rights granted Microdyne pursuant to
Article 2 of this Agreement shall be immediately revoked without notice until
such time as such default is cured.
Microdyne will release all claims relating to all remaining royalty
credits relating to Microdyne's acquisition of National Semiconductor's adapter
card business, approximately $1,600,000, as of April 12, 1996, which Microdyne
acquired pursuant to the Assignment Agreement dated September 8, 1995.
Within thirty (30) days of the date of this Agreement, Microdyne and
Novell will sign a new standard Novell OEM agreement covering all hardware
products, excluding the Hardware, sold by Microdyne that carry the Novell trade
dress which will provide, without limitation, that Microdyne will pay Novell a
nine percent (9%) royalty on hardware products sold by Microdyne that carry the
Novell trade dress, excluding Hardware, subject to the general terms to be
negotiated by the parties.
Within thirty (30) days of the date of this Agreement Microdyne and
Novell will sign a new standard Novell OEM agreement which covers all software
products which will provide, without limitation, that Microdyne is entitled to
a discount of at least fifty (50%) on all such products, subject to the general
terms to be negotiated by the parties.
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ARTICLE 3
RELEASE OF CLAIMS
Each Party hereto (the "Releasing Party") hereby unconditionally
releases the other Party hereto (the "Released Party") from any claims, actions
or causes of action, defenses, counterclaims or setoffs of any kind or nature
which the Releasing Party may assert, as of December 31, 1995, against the
Released Party, including without limitation, the OEM Agreement dated June 14,
1993, and the Composite Signature Agreement dated January 18, 1994, together
with any amendments to any such agreements, or any related agreements, or any
matters whatsoever arising from or under any of the foregoing (hereinafter
referred to collectively as the "Claims"); provided, however, that this release
expressly excludes any claims, actions or causes of action arising from:
(a) that portion of Novell's Master License Agreement as to which
Microdyne has contractual obligations;
(b) the Advanced Access and Application Products amendment (LAN
Workplace for DOS) to the Desk Top OEM Agreement;
(c) the Novell DOS/DOS Kernel and Palm DOS under the Desk Top OEM
Agreement;
(d) the WordPerfect and GroupWise Products amendment to the June
14, 1993 Agreement;
(e) the Personal NetWare and NetWare Lite amendment to the Desk
Top OEM Agreement;
(f) the NetWare Multi-protocol Router amendment to the June 14,
1993 Agreement;
(g) the NetWare for SAA amendment to the June 14, 1993 Agreement;
(h) sales of Novell Asynchronous Communications Server under the
Composite Direct Purchase Signature Agreement dated March 31,
1992, as amended; and
(i) sales of Novell Access Server under the Composite Direct
Purchase Signature Agreement dated March 31, 1992, as amended.
Except as provided in (a) through (i) above, in the event the Releasing Party
has any Claims which the Releasing Party may assert as of the date hereof for
any act or omission occurring on or before December 31, 1995, against the
Released Party, the Releasing Party forever
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irrevocably waives and relinquishes them; provided that notwithstanding the
foregoing provisions of this Article 3, the release of Claims provided to
Microdyne by Novell hereunder shall be null and void upon any default under
Article 1 or Article 2 of this Agreement, or the Commercial Notes attached
hereto as Exhibit A and Exhibit C. The term "Released Party" shall include, but
shall not be limited to, its present and former officers, directors, employees,
agents and attorneys. The Releasing Party represents and warrants that it is
represented by counsel of its choice who has reviewed this release and advised
it of its contents and meaning. The Releasing Party further represents and
warrants that it is signing this release voluntarily and with full
understanding of its contents and meaning.
With respect to any claims, actions or causes of action not released
hereunder, each Party agrees that in any case in which it elects to assert any
such claim, action or cause of action against the other Party, such Party will
concurrently assert such claim, action or cause of action against any third
party which is also liable in whole or in part to the asserting Party for such
claim, action or cause of action.
ARTICLE 4
COSTS AND EXPENSE OF NEGOTIATION
Each Party will bear its own costs and expenses with regard to all
negotiations and activities relating to the subject of this Agreement.
ARTICLE 5
EFFECT OF AGREEMENT
This Agreement shall be binding on and inure to the benefit of the
Parties and their respective legal representatives, successors and assigns.
ARTICLE 6
GOVERNING LAW
This Agreement shall be interpreted in all respects according to the
law of the state of California.
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ARTICLE 7
ENTIRE AGREEMENT
The terms of this Agreement are intended by the Parties as a final,
complete, and exclusive expression of their agreement with respect to the
subject matter of this Agreement and are intended to supersede, cancel, and
take the place of all prior contracts and agreements between the parties, oral
or written, relating to the subject matter of this Contract. This Agreement
may not be contradicted, varied, substituted, or abridged in any manner except
by written amendment duly signed by Novell and Microdyne.
ARTICLE 8
PROTECTION OF INFORMATION
The Parties agree to keep confidential any trade secret or other
confidential business information related to the other Party's business of
which they are now or at any time while this Agreement is in effect may become
informed and which is not known generally to the public. The Parties'
obligations under this Article will survive the expiration or termination of
this Agreement.
IN WITNESS WHEREOF, The Parties have executed this Agreement in two
originals pursuant to due authority as of the day and year first above written.
NOVELL, INC. MICRODYNE CORPORATION
Signature: /s/ XXXXX X. XXXXXXXX Signature: /s/ XXXXXXXXXXX X. XXXXXXXXX
--------------------- ----------------------------
Name: Xxxxx X. Xxxxxxxx Name: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
-------------------------- ----------------------------------
Title: VP. Dem Sales Title: Executive Vice President
------------------------- --------------------------------
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EXHIBIT A
PAYMENT OF THIS NOTE IS SUBORDINATED TO PAYMENT OF THE "SENIOR DEBT" AS DEFINED
HEREIN
COMMERCIAL NOTE
$3,035,000 April 17, 1996
FOR VALUE RECEIVED, the undersigned (the "Borrower") promises
to pay to the order of NOVELL, INC., a Delaware corporation (the "Lender,"
which term shall include any holder of this Note) without offset, at the
Lender's office located at 0000 Xxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 (or
at such other address as the Lender shall designate), the principal sum of
Three Million Thirty-five Thousand Dollars ($3,035,000), together with interest
on the principal balance outstanding from time to time at the rate provided in
this Note.
INTEREST RATE. This Note shall bear interest on the
principal balance outstanding from time to time, from the date of this Note
until paid in full, at a fixed rate per annum of eight percent (8.0%). Interest
shall be computed on the basis of a 360 day year, counting the actual number of
days elapsed.
PAYMENT TERMS. The Borrower agrees to pay this Note in
installments of $137,264.83 including interest, beginning May 17, 1996 and on
the same day of each consecutive month thereafter; provided, however,
principal, interest and all other charges shall be due and payable in full on
April 17, 1998.
PREPAYMENT. The Borrower may pay the whole or any part of
the outstanding indebtedness evidenced by this Note at any time without penalty
by paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Any prepayment of principal shall not
affect the obligation of the Borrower to make subsequent scheduled principal
payments at the times and in the amounts required until this Note is paid in
full.
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DEFAULT. Each of the following events or conditions shall
constitute a default ("Default") under this Note:
(a) the failure to make any payment of principal,
interest or any other amount due under this Note within three (3) business
days from the date on which Borrower receives written notice from Lender that
such payment is due and unpaid;
(b) the failure to perform or observe any warranty,
covenant, or other condition of this Note; or
(c) the insolvency of the Borrower, the filing of a
petition by or against the Borrower under the provisions of any bankruptcy,
reorganization, arrangement, insolvency, liquidation or similar law for relief
of debtors, the appointment or application for appointment of any receiver for
the Borrower or the property of the Borrower, or an assignment for the benefit
of creditors by the Borrower.
ACCELERATION. At the option of the Lender, upon the
occurrence of a Default as defined above, the full amount remaining unpaid on
this Note shall become immediately due and payable without presentment, demand
or notice of any kind; and the Lender may exercise any or all remedies
available to it under applicable law and the Loan Documents.
IMMEDIATELY AVAILABLE FUNDS. The principal of and interest
on this Note shall be payable in immediately available funds in lawful money of
the United States which shall be legal tender for public and private debts at
the time of payment.
APPLICATION OF PAYMENTS. Payments will be applied to
interest, principal, and late charges and other charges due at the time such
payments are received, in that order. All payments shall be applied to
satisfaction of scheduled payments in the order in which they become due.
LATE CHARGE; ATTORNEYS' FEES. If the Borrower fails to pay
any amount due under this Note within 15 days of the date due, the Borrower
shall pay to the Lender on demand a late charge equal to five percent (5%) of
the amount due. The Borrower shall pay to the Lender on demand all reasonable
costs incurred by the Lender, and reasonable attorneys' fees, in the collection
or enforcement of this Note in the event of Default, whether or not suit is
brought.
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SUBORDINATION. The Lender hereby subordinates the payment of
this Note (the "Subordinated Debt") to the payment in full of all loans,
advances, liabilities and indebtedness now or hereafter owed by the Borrower to
Crestar Bank, a Virginia banking corporation (the "Bank") and all renewals,
extensions, and modifications thereof and substitutions therefor and all loans,
advances, liabilities and indebtedness now or hereafter owed by the Borrower to
NBD Bank under the Credit Agreement, dated as of January 27, 1995, among NBD
Bank, Crestar Bank and the Borrower, and all extensions, renewals and
modifications thereof and substitutions therefor, with respect to which Crestar
Bank acts as agent for NBD Bank (the "Senior Debt"). The Lender further agrees
that any lien, encumbrance or other security for the payment of the
Subordinated Debt, whether now existing or hereafter arising, is and shall be
expressly subordinated to any lien, encumbrance or other security for the
payment of the Senior Debt.
Notwithstanding the provisions of the preceding paragraph, as
long as no default has occurred under any instrument or agreement evidencing or
securing the Senior Debt, scheduled payments of principal, interest and fees on
the Subordinated Debt, and no other payments, may be received, accepted and
retained by the Lender; provided, however in no event will the Lender receive,
accept or retain any prepayment of the Subordinated Debt prior to the scheduled
due date.
The Lender agrees that until the Senior Debt is paid in full
it will not (i) ask, demand, xxx for take or receive from the Borrower directly
or indirectly, in cash, securities or other property or by set-off or in any
other manner (including, without limitation, from or by way of collateral),
payment of all or any part of the Subordinated Debt, or (ii) commence or join
with other creditors in commencing any bankruptcy, reorganization, receivership
or insolvency proceeding against the Borrower. In the event of any Default
described in paragraph (c) of the DEFAULT section of this Note, then and in any
such event the Bank and NBD Bank shall be entitled to receive payment in full
in cash or cash equivalents of all amounts due or to become due on or in
respect of all Senior Debt before the Lender shall be entitled to receive and
retain any payment on account of the principal, interest or other amounts due
or to become due on the Subordinated Debt, and to that end the Bank and NBD
Bank shall be entitled to receive, for application to the payment of the Senior
Debt, any payment or distribution of any kind or character whether in cash,
securities, or other property, which may be payable or deliverable in respect
of the Subordinated Debt in any such case, proceeding, dissolution, liquidation
or other winding up or event. Accordingly, any payment or distribution of
assets of the Borrower of any kind or character which would otherwise have been
made to the Lender but for the provisions of this section shall instead be made
by the Borrower or by the trustee in bankruptcy, receiver liquidating trustee,
custodian, assignee, agent or other person making payment or distribution of
assets of the Borrower directly to the Bank and NBD Bank for application to the
payment of all Senior Debt remaining unpaid to the extent necessary to pay all
Senior Debt in full in cash or cash equivalents after giving effect to any
concurrent payment or distribution to or for the benefit of the Bank and NBD
Bank. The Lender irrevocably authorizes and empowers the Bank to file claims
and take such other actions, in the Bank's own name or in the name of the
Lender
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or otherwise, as the Bank may deem necessary or advisable for the enforcement
of this section of this Note, and to vote the full amount of the Lender's
claims in any receivership, insolvency or bankruptcy proceeding in the Lender's
place and stead. The Under further irrevocably appoints the Bank its true and
lawful attorney-in-fact for the purposes specified herein, with full power of
substitution, and such power shall be a power coupled with an interest. The
Lender further agrees to execute and deliver to the Bank such powers of
attorney, assignments or other instruments as may be reasonably requested by
the Bank in order to enable the Bank to enforce any and all claims upon or with
respect to any or all of the Subordinated Debt and to collect and receive any
and all payments or distributions which may be payable or deliverable at any
time upon or with respect to any of the Subordinated Debt.
If, notwithstanding the provisions of this section of this
Note, the Lender shall have received any payment or distribution of assets of
the Borrower of any kind or character before all amounts due or to become due
on or in respect of all Senior Debt have been paid in full in cash or cash
equivalents, then and in such event such payment or distribution shall be
received in trust for the Bank and NBD Bank and shall be forthwith paid over or
delivered by the Lender receiving the same directly to the Bank and NBD Bank or
to the extent legally required, to the trustee in bankruptcy, receiver
liquidating trustee, custodian, assignee, agent or other person making such
payment or distribution of assets of the Borrower for application to the
payment of all Senior Debt remaining unpaid to the extent necessary to pay all
Senior Debt in full after giving effect to any concurrent payment or
distribution to or for the Bank and NBD Bank.
The Lender agrees that until the Senior Debt is paid in full
it will not subordinate any part of the Subordinated Debt to any indebtedness
owed to any person other than the Bank and NBD Bank.
The terms of this section of this Note shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Senior Debt is rescinded or must otherwise be returned by the Bank
or NBD Bank upon the insolvency, bankruptcy or reorganization of the Borrower
or otherwise, all as though such payment had been due but not made at such
time.
ADDITIONAL TERMS.
The proceeds of this Note shall be used to acquire or carry
on a business, professional, investment, or commercial enterprise or activity.
The rights and remedies of the Lender under this Note, the
other Loan Documents, and applicable law shall be cumulative and concurrent,
and the exercise of any one or more of them shall not preclude the simultaneous
or later exercise by the Lender of any or all such other rights or remedies.
In the event any provision of this Note is held to be
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invalid, illegal, or unenforceable for any reason, then such provision only
shall be deemed null and void and shall not affect any other provisions of this
Note, which shall remain effective.
This Note shall be governed by and construed in accordance
with the laws of the Commonwealth of Virginia.
WITNESS the following signature and seal:
MICRODYNE CORPORATION
[SEAL]
By:
--------------------------------------
Name:
Title:
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EXHIBIT B
PRODUCT APPLICABLE
CONTRACT
10mbETHERENT PRODUCTS
NE1000 Adapter (1)
NE2000 Series Adapters (1)
NE3200 Series Adapters (1)
Exos 235 Series Adapters (5)
NC5000 Series Hubs No Contract
NCB/12/24 Series Hubs No Contract
NE3210 Adapter No Contract
NE3300 Adapter No Contract
EP2000 plus Series Adapters No Contract
NE2500 Series Adapters No Contract
NE5500 Series Adapters No Contract
NE/2 Series Adapters No Contract
NE2000 plus Series Adapters No Contract
NMSL Series Adapters No Contract
NE4200 Series PCMCIA No Contract
NE4000 PCMCIA No Contract
NPE400 Series Print Server No Contract
Infomover NE2000plus Series Adapters No Contract
Infomover NE4100 Series PCMCIA No Contract
WIDE AREA PRODUCTS
WNIM Series Adapters No Contract
CoaxMux Adapter (2)
SAA Adapter for PC (2)
SAA Adapter for PS/2 (2)
SyncPlus Series Adapters (2)
V.35 Adapters (PCOX) (3)
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PRODUCT APPLICABLE
CONTRACT
Sync Adapter (PCOX) (3)
Coax Adapter (PCOX) (3)
NW2000 Adapter No Contract
NTR2000 Token Ring Adapter No Contract
EXCELAN PRODUCTS
Exos 20x Series "Big Bus" Controllers (4)
Exos 30x Series "Big Bus" Controllers (4)
Exos 205/215 Series Controllers (4)
CONTRACT KEY:
(1) Novell NE1000, NE1500T, NE2000, NE2000T, NE2100, and NE3200 NIC
Technology License Agreement dated July 31, 1992
(2) SNA Gateway Technology License and Manufacturing Agreement dated May 1,
1992
(3) Novell PCOX Products Technology License and Manufacturing Agreement
dated July 16, 1991
(4) Exos Technology License and Manufacturing Agreement dated Xxxx 31, 1990
(5) Novell NE3200 Technology License Agreement date February 5, 1991
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EXHIBIT C
PAYMENT OF THIS NOTE IS SUBORDINATED TO PAYMENT OF THE "SENIOR
DEBT" AS DEFINED HEREIN
COMMERCIAL NOTE
$5,820,000.00 April 17, 1996
FOR VALUE RECEIVED, the undersigned (the "Borrower") promises
to pay to the order of NOVELL, INC., a Delaware corporation (the "Lender,"
which term shall include any holder of this Note) without offset, at the
Lender's office located at 0000 Xxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 (or
at such other address as the Lender shall designate), the principal sum of Five
Million Eight Hundred Twenty Thousand and no/100 Dollars ($5,820,000.00),
together with interest on the principal balance outstanding from time to time
at the rate provided in this Note.
INTEREST RATE. This Note shall bear interest on the
principal balance outstanding from time to time, from the date of this Note
until paid in full, at a fixed rate per annum of eight percent (8.0%). Interest
shall be computed on the basis of a 360 day year, counting the actual number of
days elapsed.
PAYMENT TERMS. The Borrower agrees to pay this Note in
installments of $118,008.61 each, including interest, beginning May 17, 1996
and on the same day of each consecutive month thereafter; provided, however,
principal, interest and all other charges shall be due and payable in full on
April 17, 2001.
PREPAYMENT. The Borrower may pay the whole or any part of
the outstanding indebtedness evidenced by this Note at any time without penalty
by paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Any prepayment of principal shall not
affect the obligation of the Borrower to make subsequent scheduled principal
payments at the times and in the amounts required until this Note is paid in
full.
DEFAULT. Each of the following events or conditions shall
constitute a default ("Default") under this Note:
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(a) the failure to make any payment of principal,
interest or any other amount due under this Note within three business days of
the date on which Borrower receives written notice from Lender that such
payment is due and unpaid;
(b) the failure to perform or observe any warranty,
covenant, or other condition of this Note; or
(c) the insolvency of the Borrower, the filing of a
petition by or against the Borrower under the provisions of any bankruptcy,
reorganization, arrangement, insolvency, liquidation or similar law for relief
of debtors, the appointment or application for appointment of any receiver for
the Borrower or the property of the Borrower, or an assignment for the benefit
of creditors by the Borrower.
ACCELERATION. At the option of the Lender, upon the
occurrence of a Default as defined above, the full amount remaining unpaid on
this Note shall become immediately due and payable without presentment, demand
or notice of any kind; and the Lender may exercise any or all remedies
available to it under applicable law and the Loan Documents.
IMMEDIATELY AVAILABLE FUNDS. The principal of and interest
on this Note shall be payable in immediately available funds in lawful money of
the United States which shall be legal tender for public and private debts at
the time of payment.
APPLICATION OF PAYMENTS. Payments will be applied to
interest, principal, and late charges and other charges due at the time such
payments are received, in that order. All payments shall be applied to
satisfaction of scheduled payments in the order in which they become due.
LATE CHARGE; ATTORNEYS' FEES. If the Borrower fails to pay
any amount due under this Note within 15 days of the date due, the Borrower
shall pay to the Lender on demand a late charge equal to five percent (5%) of
the amount due. The Borrower shall pay to the Lender on demand all reasonable
costs incurred by the Lender, and reasonable attorneys' fees, in the collection
or enforcement of this Note in the event of Default, whether or not suit is
brought.
SUBORDINATION. The Lender hereby subordinates the payment of
this Note (the "Subordinated Debt") to the payment in full of all loans,
advances, liabilities and indebtedness now or hereafter owed by the Borrower to
Crestar Bank, a Virginia banking corporation (the "Bank") and all renewals,
extensions, and modifications thereof and
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substitutions therefor and all loans, advances, liabilities and indebtedness
now or hereafter owed by the Borrower to NBD Bank under the Credit Agreement,
dated as of January 27, 1995, among NBD Bank, Crestar Bank and the Borrower,
and all extensions, renewals and modifications thereof and substitutions
therefor, with respect to which Crestar Bank acts as agent for NBD Bank (the
"Senior Debt"). The Lender further agrees that any lien, encumbrance or other
security for the payment of the Subordinated Debt, whether now existing or
hereafter arising, is and shall be expressly subordinated to any lien,
encumbrance or other security for the payment of the Senior Debt.
Notwithstanding the provisions of the preceding paragraph, as
long as no default has occurred under any instrument or agreement evidencing or
securing the Senior Debt, scheduled payments of principal, interest and fees on
the Subordinated Debt, and no other payments, may be received, accepted and
retained by the Lender; provided, however in no event will the Lender receive,
accept or retain any prepayment of the Subordinated Debt prior to the scheduled
due date.
The Lender agrees that until the Senior Debt is paid in full
it will not (i) ask, demand, xxx for take or receive from the Borrower directly
or indirectly, in cash, securities or other property or by set-off or in any
other manner (including, without limitation, from or by way of collateral),
payment of all or any part of the Subordinated Debt, or (ii) commence or join
with other creditors in commencing any bankruptcy, reorganization, receivership
or insolvency proceeding against the Borrower. In the event of any Default
described in paragraph (c) of the DEFAULT section of this Note, then and in any
such event the Bank and NBD Bank shall be entitled to receive payment in full
in cash or cash equivalents of all amounts due or to become due on or in
respect of all Senior Debt before the Lender shall be entitled to receive and
retain any payment on account of the principal, interest or other amounts due
or to become due on the Subordinated Debt, and to that end the Bank and NBD
Bank shall be entitled to receive, for application to the payment of the Senior
Debt, any payment or distribution of any kind or character whether in cash,
securities, or other property, which may be payable or deliverable in respect
of the Subordinated Debt in any such case, proceeding, dissolution, liquidation
or other winding up or event. Accordingly, any payment or distribution of
assets of the Borrower of any kind or character which would otherwise have been
made to the Lender but for the provisions of this section shall instead be made
by the Borrower or by the trustee in bankruptcy, receiver liquidating trustee,
custodian, assignee, agent or other person making payment or distribution of
assets of the Borrower directly to the Bank and NBD Bank for application to the
payment of all Senior Debt remaining unpaid to the extent necessary to pay all
Senior Debt in full in cash or cash equivalents after giving effect to any
concurrent payment or distribution to or for the benefit of the Bank and NBD
Bank. The Lender irrevocably authorizes and empowers the Bank to file claims
and take such other actions, in the Bank's own name or in the name of the
Lender or otherwise, as the Bank may deem necessary or advisable for the
enforcement of this section of this Note, and to vote the full amount of the
Lender's claims in any receivership, insolvency or bankruptcy proceeding in the
Lender's place and stead. The Lender further irrevocably appoints the Bank its
true and lawful attorney-in-fact for the purposes specified
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herein, with full power of substitution, and such power shall be a power
coupled with an interest. The Lender further agrees to execute and deliver to
the Bank such powers of attorney, assignments or other instruments as may be
reasonably requested by the Bank in order to enable the Bank to enforce any and
all claims upon or with respect to any or all of the Subordinated Debt and to
collect and receive any and all payments or distributions which may be payable
or deliverable at any time upon or with respect to any of the Subordinated
Debt.
If, notwithstanding the provisions of this section of this
Note, the Lender shall have received any payment or distribution of assets of
the Borrower of any kind or character before all amounts due or to become due
on or in respect of all Senior Debt have been paid in full in cash or cash
equivalents, then and in such event such payment or distribution shall be
received in trust for the Bank and NBD Bank and shall be forthwith paid over or
delivered by the Lender receiving the same directly to the Bank and NBD Bank or
to the extent legally required, to the trustee in bankruptcy, receiver
liquidating trustee, custodian, assignee, agent or other person making such
payment or distribution of assets of the Borrower for application to the
payment of all Senior Debt remaining unpaid to the extent necessary to pay all
Senior Debt in full after giving effect to any concurrent payment or
distribution to or for the Bank and NBD Bank.
The Lender agrees that until the Senior Debt is paid in full
it will not subordinate any part of the Subordinated Debt to any indebtedness
owed to any person other than the Bank and NBD Bank.
The terms of this section of this Note shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Senior Debt is rescinded or must otherwise be returned by the Bank
or NBD Bank upon the insolvency, bankruptcy or reorganization of the Borrower
or otherwise, all as though such payment had been due but not made at such
time.
ADDITIONAL TERMS.
The proceeds of this Note shall be used to acquire or carry on
a business, professional, investment, or commercial enterprise or activity.
The rights and remedies of the Lender under this Note, the
other Loan Documents, and applicable law shall be cumulative and concurrent,
and the exercise of any one or more of them shall not preclude the simultaneous
or later exercise by the Lender of any or all such other rights or remedies.
In the event any provision of this Note is held to be invalid, illegal, or
unenforceable for any reason, then such provision only shall be deemed null and
void and shall not affect any other provisions of this Note, which shall remain
effective.
Page 4 of 5
18
This Note shall be governed by and construed in accordance
with the laws of the Commonwealth of Virginia.
WITNESS the following signature and seal:
MICRODYNE CORPORATION
[SEAL]
By:
----------------------------
Name:
Title:
Page 5 of 5
19
PAYMENT OF THIS NOTE IS SUBORDINATED TO PAYMENT OF THE "SENIOR DEBT" AS DEFINED
HEREIN
COMMERCIAL NOTE
$3,035,000 April 17, 1996
FOR VALUE RECEIVED, the undersigned (the "Borrower") promises
to pay to the order of NOVELL, INC., a Delaware corporation (the "Lender,"
which term shall include any holder of this Note) without offset, at the
Lender's office located at 0000 Xxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 (or
at such other address as the Lender shall designate), the principal sum of
Three Million Thirty-five Thousand Dollars ($3,035,000), together with interest
on the principal balance outstanding from time to time at the rate provided in
this Note.
INTEREST RATE. This Note shall bear interest on the principal
balance outstanding from time to time, from the date of this Note until paid in
full, at a fixed rate per annum of eight percent (8.0%). Interest shall be
computed on the basis of a 360 day year, counting the actual number of days
elapsed.
PAYMENT TERMS. The Borrower agrees to pay this Note in
installments of $137,264.83 including interest, beginning May 17, 1996 and on
the same day of each consecutive month thereafter; provided, however,
principal, interest and all other charges shall be due and payable in full on
April 17, 1998.
PREPAYMENT. The Borrower may pay the whole or any part of the
outstanding indebtedness evidenced by this Note at any time without penalty by
paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Any prepayment of principal shall not
affect the obligation of the Borrower to make subsequent scheduled principal
payments at the times and in the amounts required until this Note is paid in
full.
Page 1 of 5
20
DEFAULT. Each of the following events or conditions shall
constitute a default ("Default") under this Note:
(a) the failure to make any payment of principal,
interest or any other amount due under this Note within three (3) business days
from the date on which Borrower receives written notice from Lender that such
payment is due and unpaid;
(b) the failure to perform or observe any warranty,
covenant, or other condition of this Note; or
(c) the insolvency of the Borrower, the filing of a
petition by or against the Borrower under the provisions of any bankruptcy,
reorganization, arrangement, insolvency, liquidation or similar law for relief
of debtors, the appointment or application for appointment of any receiver for
the Borrower or the property of the Borrower, or an assignment for the benefit
of creditors by the Borrower.
ACCELERATION. At the option of the Lender, upon the
occurrence of a Default as defined above, the full amount remaining unpaid on
this Note shall become immediately due and payable without presentment, demand
or notice of any kind; and the Lender may exercise any or all remedies
available to it under applicable law and the Loan Documents.
IMMEDIATELY AVAILABLE FUNDS. The principal of and interest on
this Note shall be payable in immediately available funds in lawful money of
the United States which shall be legal tender for public and private debts at
the time of payment.
APPLICATION OF PAYMENTS. Payments will be applied to
interest, principal, and late charges and other charges due at the time such
payments are received, in that order. All payments shall be applied to
satisfaction of scheduled payments in the order in which they become due.
LATE CHARGE; ATTORNEYS' FEES. If the Borrower fails to pay
any amount due under this Note within 15 days of the date due, the Borrower
shall pay to the Lender on demand a late charge equal to five percent (5%) of
the amount due. The Borrower shall pay to the Lender on demand all reasonable
costs incurred by the Lender, and reasonable attorneys' fees, in the collection
or enforcement of this Note in the event of Default, whether or not suit is
brought.
Page 2 of 5
21
SUBORDINATION. The Lender hereby subordinates the payment of
this Note (the "Subordinated Debt") to the payment in full of all loans,
advances, liabilities and indebtedness now or hereafter owed by the Borrower to
Crestar Bank, a Virginia banking corporation (the "Bank") and all renewals,
extensions, and modifications thereof and substitutions therefor and all loans,
advances, liabilities and indebtedness now or hereafter owed by the Borrower to
NBD Bank under the Credit Agreement, dated as of January 27, 1995, among NBD
Bank, Crestar Bank and the Borrower, and all extensions, renewals and
modifications thereof and substitutions therefor, with respect to which Crestar
Bank acts as agent for NBD Bank (the "Senior Debt"). The Lender further agrees
that any lien, encumbrance or other security for the payment of the
Subordinated Debt, whether now existing or hereafter arising, is and shall be
expressly subordinated to any lien, encumbrance or other security for the
payment of the Senior Debt.
Notwithstanding the provisions of the preceding paragraph, as
long as no default has occurred under any instrument or agreement evidencing or
securing the Senior Debt, scheduled payments of principal, interest and fees on
the Subordinated Debt, and no other payments, may be received, accepted and
retained by the Lender; provided, however in no event will the Lender receive,
accept or retain any prepayment of the Subordinated Debt prior to the scheduled
due date.
The Lender agrees that until the Senior Debt is paid in full
it will not (i) ask, demand, xxx for take or receive from the Borrower directly
or indirectly, in cash, securities or other property or by set-off or in any
other manner (including, without limitation, from or by way of collateral),
payment of all or any part of the Subordinated Debt, or (ii) commence or join
with other creditors in commencing any bankruptcy, reorganization, receivership
or insolvency proceeding against the Borrower. In the event of any Default
described in paragraph (c) of the DEFAULT section of this Note, then and in any
such event the Bank and NBD Bank shall be entitled to receive payment in full
in cash or cash equivalents of all amounts due or to become due on or in
respect of all Senior Debt before the Lender shall be entitled to receive and
retain any payment on account of the principal, interest or other amounts due
or to become due on the Subordinated Debt, and to that end the Bank and NBD
Bank shall be entitled to receive, for application to the payment of the Senior
Debt, any payment or distribution of any kind or character whether in cash,
securities, or other property, which may be payable or deliverable in respect
of the Subordinated Debt in any such case, proceeding, dissolution, liquidation
or other winding up or event. Accordingly, any payment or distribution of
assets of the Borrower of any kind or character which would otherwise have been
made to the Lender but for the provisions of this section shall instead be made
by the Borrower or by the trustee in bankruptcy, receiver liquidating trustee,
custodian, assignee, agent or other person making payment or distribution of
assets of the Borrower directly to the Bank and NBD Bank for application to the
payment of all Senior Debt remaining unpaid to the extent necessary to pay all
Senior Debt in full in cash or cash equivalents after giving effect to any
concurrent payment or distribution to or for the benefit of the Bank and NBD
Bank. The Lender irrevocably authorizes and empowers the Bank to file claims
and take such other actions, in the Bank's own name or in the name of the
Lender
Page 3 of 5
22
or otherwise, as the Bank may deem necessary or advisable for the enforcement
of this section of this Note, and to vote the full amount of the Lender's
claims in any receivership, insolvency or bankruptcy proceeding in the Lender's
place and stead. The Lender further irrevocably appoints the Bank its true and
lawful attorney-in-fact for the purposes specified herein, with full power of
substitution, and such power shall be a power coupled with an interest. The
Lender further agrees to execute and deliver to the Bank such powers of
attorney, assignments or other instruments as may be reasonably requested by
the Bank in order to enable the Bank to enforce any and all claims upon or with
respect to any or all of the Subordinated Debt and to collect and receive any
and all payments or distributions which may be payable or deliverable at any
time upon or with respect to any of the Subordinated Debt.
If, notwithstanding the provisions of this section of this
Note, the Lender shall have received any payment or distribution of assets of
the Borrower of any kind or character before all amounts due or to become due
on or in respect of all Senior Debt have been paid in full in cash or cash
equivalents, then and in such event such payment or distribution shall be
received in trust for the Bank and NBD Bank and shall be forthwith paid over or
delivered by the Lender receiving the same directly to the Bank and NBD Bank or
to the extent legally required, to the trustee in bankruptcy, receiver
liquidating trustee, custodian, assignee, agent or other person making such
payment or distribution of assets of the Borrower for application to the
payment of all Senior Debt remaining unpaid to the extent necessary to pay all
Senior Debt in full after giving effect to any concurrent payment or
distribution to or for the Bank and NBD Bank.
The Lender agrees that until the Senior Debt is paid in full
it will not subordinate any part of the Subordinated Debt to any indebtedness
owed to any person other than the Bank and NBD Bank.
The terms of this section of this Note shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Senior Debt is rescinded or must otherwise be returned by the Bank
or NBD Bank upon the insolvency, bankruptcy or reorganization of the Borrower
or otherwise, all as though such payment had been due but not made at such
time.
ADDITIONAL TERMS.
The proceeds of this Note shall be used to acquire or carry on
a business, professional, investment, or commercial enterprise or activity.
The rights and remedies of the Lender under this Note, the
other Loan Documents, and applicable law shall be cumulative and concurrent,
and the exercise of any one or more of them shall not preclude the simultaneous
or later exercise by the Lender of any or all such other rights or remedies.
In the event any provision of this Note is held to be
Page 4 of 5
23
invalid, illegal, or unenforceable for any reason, then such provision only
shall be deemed null and void and shall not affect any other provisions of this
Note, which shall remain effective.
This Note shall be governed by and construed in accordance
with the laws of the Commonwealth of Virginia.
WITNESS the following signature and seal:
MICRODYNE CORPORATION
[SEAL]
By: /s/ XXXXXXXXXXX X. XXXXXXXXX
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
Page 5 of 5
24
PAYMENT OF THIS NOTE IS SUBORDINATED TO PAYMENT OF THE "SENIOR DEBT" AS DEFINED
HEREIN
COMMERCIAL NOTE
$5,820,000.00 April 17, 1996
FOR VALUE RECEIVED, the undersigned (the "Borrower") promises
to pay to the order of NOVELL, INC., a Delaware corporation (the "Lender,"
which term shall include any holder of this Note) without offset, at the
Lender's office located at 0000 Xxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 (or
at such other address as the Lender shall designate), the principal sum of Five
Million Eight Hundred Twenty Thousand and no/100 Dollars ($5,820,000.00),
together with interest on the principal balance outstanding from time to time
at the rate provided in this Note.
INTEREST RATE. This Note shall bear interest on the principal
balance outstanding from time to time, from the date of this Note until paid in
full, at a fixed rate per annum of eight percent (8.0%). Interest shall be
computed on the basis of a 360 day year, counting the actual number of days
elapsed.
PAYMENT TERMS. The Borrower agrees to pay this Note in
installments of $118,008.61 each, including interest, beginning May 17, 1996
and on the same day of each consecutive month thereafter; provided, however,
principal, interest and all other charges shall be due and payable in full on
April 17, 2001.
PREPAYMENT. The Borrower may pay the whole or any part of the
outstanding indebtedness evidenced by this Note at any time without penalty by
paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Any prepayment of principal shall not
affect the obligation of the Borrower to make subsequent scheduled principal
payments at the times and in the amounts required until this Note is paid in
full.
DEFAULT. Each of the following events or conditions shall
constitute a default ("Default") under this Note:
Page 1 of 5
25
(a) the failure to make any payment of principal,
interest or any other amount due under this Note within three business days of
the date on which Borrower receives written notice from Lender that such
payment is due and unpaid;
(b) the failure to perform or observe any warranty,
covenant, or other condition of this Note; or
(c) the insolvency of the Borrower, the filing of a
petition by or against the Borrower under the provisions of any bankruptcy,
reorganization, arrangement, insolvency, liquidation or similar law for relief
of debtors, the appointment or application for appointment of any receiver for
the Borrower or the property of the Borrower, or an assignment for the benefit
of creditors by the Borrower.
ACCELERATION. At the option of the Lender, upon the
occurrence of a Default as defined above, the full amount remaining unpaid on
this Note shall become immediately due and payable without presentment, demand
or notice of any kind; and the Lender may exercise any or all remedies
available to it under applicable law and the Loan Documents.
IMMEDIATELY AVAILABLE FUNDS. The principal of and interest on
this Note shall be payable in immediately available funds in lawful money of
the United States which shall be legal tender for public and private debts at
the time of payment.
APPLICATION OF PAYMENTS. Payments will be applied to
interest, principal, and late charges and other charges due at the time such
payments are received, in that order. All payments shall be applied to
satisfaction of scheduled payments in the order in which they become due.
LATE CHARGE; ATTORNEYS' FEES. If the Borrower fails to pay
any amount due under this Note within 15 days of the date due, the Borrower
shall pay to the Lender on demand a late charge equal to five percent (5%) of
the amount due. The Borrower shall pay to the Lender on demand all reasonable
costs incurred by the Lender, and reasonable attorneys' fees, in the collection
or enforcement of this Note in the event of Default, whether or not suit is
brought.
SUBORDINATION. The Lender hereby subordinates the payment of
this Note (the "Subordinated Debt") to the payment in full of all loans,
advances, liabilities and indebtedness now or hereafter owed by the Borrower to
Crestar Bank, a Virginia banking corporation (the "Bank") and all renewals,
extensions, and modifications thereof and
Page 2 of 5
26
substitutions therefor and all loans, advances, liabilities and indebtedness
now or hereafter owed by the Borrower to NBD Bank under the Credit Agreement,
dated as of January 27, 1995, among NBD Bank, Crestar Bank and the Borrower,
and all extensions, renewals and modifications thereof and substitutions
therefor, with respect to which Crestar Bank acts as agent for NBD Bank (the
"Senior Debt"). The Lender further agrees that any lien, encumbrance or other
security for the payment of the Subordinated Debt, whether now existing or
hereafter arising, is and shall be expressly subordinated to any lien,
encumbrance or other security for the payment of the Senior Debt.
Notwithstanding the provisions of the preceding paragraph, as
long as no default has occurred under any instrument or agreement evidencing or
securing the Senior Debt, scheduled payments of principal, interest and fees on
the Subordinated Debt, and no other payments, may be received, accepted and
retained by the Lender; provided, however in no event will the Lender receive,
accept or retain any prepayment of the Subordinated Debt prior to the scheduled
due date.
The Lender agrees that until the Senior Debt is paid in full
it will not (i) ask, demand, xxx for take or receive from the Borrower directly
or indirectly, in cash, securities or other property or by set-off or in any
other manner (including, without limitation, from or by way of collateral),
payment of all or any part of the Subordinated Debt, or (ii) commence or join
with other creditors in commencing any bankruptcy, reorganization, receivership
or insolvency proceeding against the Borrower. In the event of any Default
described in paragraph (c) of the DEFAULT section of this Note, then and in any
such event the Bank and NBD Bank shall be entitled to receive payment in full
in cash or cash equivalents of all amounts due or to become due on or in
respect of all Senior Debt before the Lender shall be entitled to receive and
retain any payment on account of the principal, interest or other amounts due
or to become due on the Subordinated Debt, and to that end the Bank and NBD
Bank shall be entitled to receive, for application to the payment of the Senior
Debt, any payment or distribution of any kind or character whether in cash,
securities, or other property, which may be payable or deliverable in respect
of the Subordinated Debt in any such case, proceeding, dissolution, liquidation
or other winding up or event. Accordingly, any payment or distribution of
assets of the Borrower of any kind or character which would otherwise have been
made to the Lender but for the provisions of this section shall instead be made
by the Borrower or by the trustee in bankruptcy, receiver liquidating trustee,
custodian, assignee, agent or other person making payment or distribution of
assets of the Borrower directly to the Bank and NBD Bank for application to the
payment of all Senior Debt remaining unpaid to the extent necessary to pay all
Senior Debt in full in cash or cash equivalents after giving effect to any
concurrent payment or distribution to or for the benefit of the Bank and NBD
Bank. The Lender irrevocably authorizes and empowers the Bank to file claims
and take such other actions, in the Bank's own name or in the name of the
Lender or otherwise, as the Bank may deem necessary or advisable for the
enforcement of this section of this Note, and to vote the full amount of the
Lender's claims in any receivership, insolvency or bankruptcy proceeding in the
Lender's place and stead. The Lender further irrevocably appoints the Bank its
true and lawful attorney-in-fact for the purposes specified
Page 3 of 5
27
herein, with full power of substitution, and such power shall be a power
coupled with an interest. The Lender further agrees to execute and deliver to
the Bank such powers of attorney, assignments or other instruments as may be
reasonably requested by the Bank in order to enable the Bank to enforce any and
all claims upon or with respect to any or all of the Subordinated Debt and to
collect and receive any and all payments or distributions which may be payable
or deliverable at any time upon or with respect to any of the Subordinated
Debt.
If, notwithstanding the provisions of this section of this
Note, the Lender shall have received any payment or distribution of assets of
the Borrower of any kind or character before all amounts due or to become due
on or in respect of all Senior Debt have been paid in full in cash or cash
equivalents, then and in such event such payment or distribution shall be
received in trust for the Bank and NBD Bank and shall be forthwith paid over or
delivered by the Lender receiving the same directly to the Bank and NBD Bank or
to the extent legally required, to the trustee in bankruptcy, receiver
liquidating trustee, custodian, assignee, agent or other person making such
payment or distribution of assets of the Borrower for application to the
payment of all Senior Debt remaining unpaid to the extent necessary to pay all
Senior Debt in full after giving effect to any concurrent payment or
distribution to or for the Bank and NBD Bank.
The Lender agrees that until the Senior Debt is paid in full
it will not subordinate any part of the Subordinated Debt to any indebtedness
owed to any person other than the Bank and NBD Bank.
The terms of this section of this Note shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Senior Debt is rescinded or must otherwise be returned by the Bank
or NBD Bank upon the insolvency, bankruptcy or reorganization of the Borrower
or otherwise, all as though such payment had been due but not made at such
time.
ADDITIONAL TERMS.
The proceeds of this Note shall be used to acquire or carry on
a business, professional, investment, or commercial enterprise or activity.
The rights and remedies of the Lender under this Note, the
other Loan Documents, and applicable law shall be cumulative and concurrent,
and the exercise of any one or more of them shall not preclude the simultaneous
or later exercise by the Lender of any or all such other rights or remedies.
In the event any provision of this Note is held to be invalid, illegal, or
unenforceable for any reason, then such provision only shall be deemed null and
void and shall not affect any other provisions of this Note, which shall remain
effective.
Page 4 of 5
28
This Note shall be governed by and construed in accordance
with the laws of the Commonwealth of Virginia.
WITNESS the following signature and seal:
MICRODYNE CORPORATION
[SEAL]
By: /s/ XXXXXXXXXXX X. XXXXXXXXX
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
Page 5 of 5
