EXHIBIT 10.2
SUBORDINATED NOTE
Core Technologies, Inc.
$887,000 August 25, 1995
FOR VALUE RECEIVED, the sufficiency and receipt of which is hereby
acknowledged, Core Technologies, Inc., a Delaware corporation (the "Borrower"),
promises to pay to the order of Safeguard Scientifics (Delaware), Inc., a
Delaware corporation (hereinafter, together with any holder, called the
"Holder"), at the Holder's office located at 000 Xxxxxxxx Xxxxxxxx, 0000
Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or at such other place in the
continental United States as the Holder may designate in writing, in lawful
money of the United States, and in immediately available funds, the principal
sum of Eight Hundred Eighty-Seven Thousand Dollars ($887,000), together with
interest thereon at the rate and payable as hereinafter set forth.
1. Payment of Principal; Maturity Date. The principal of this Note,
together will all accrued interest thereon, shall be due and payable on December
31, 2000 ("Maturity Date").
2. Payment of Interest. The Borrower hereby further promises to pay to
the order of the Holder interest on the outstanding principal amount from the
date hereof, at an annual rate equal to Six Percent (6%). Interest payable
hereunder shall be calculated for actual days elapsed on the basis of a 360-day
year.
Interest shall be payable when the unpaid principal balance of the Note
is paid, and shall be due and payable on the Maturity Date.
In addition, after the Maturity Date or any Event of Default, interest
shall continue to accrue on this Note (to the extent legally enforceable) at a
rate of Eight Percent (8%) per annum, and shall be payable together with payment
of principal, on demand of the Holder.
Notwithstanding anything in this Note, the interest rate charged hereon
shall not exceed the maximum rate allowable by applicable law. If any stated
interest rate herein exceeds the maximum allowable rate, then the interest rate
shall be reduced to the maximum allowable rate, and any excess payment of
interest made by the Borrower at any time shall be applied to the unpaid balance
of any outstanding principal of this Note.
3. Subordination of Note. The Borrower's obligations under this Note,
regardless of whether demand for payment has been made by the Holder, are
subject to and subordinate to the Borrower's obligations under loan agreements
presently existing or which may
in the future exist between the Borrower and its other lenders.
4. Prepayments. The outstanding principal amount of this Note may be
prepaid in whole or in part without any prepayment penalty or premium at any
time or from time to time by the Borrower upon notice to the Holder; provided,
that upon such payment any interest due to the date of such prepayment on such
prepaid amount shall also be paid
5. Method and Application of Payments. All amounts payable hereunder
shall be paid by the Borrower in lawful money of the United States of America by
certified check or wire transfer in immediately available and freely
transferable funds at the place designated by Xxxxxx in writing to Borrower for
such payment. All payments made on this Note (including, without limitation,
prepayments) shall be applied, at the option of the Holder, first to late
charges and collection costs, if any, then to accrued interest, and then to
principal.
6. Forgiveness of Note. The principal of this Note, together with all
accrued interest thereon, will be forgiven by the Holder if and only if all and
of the Safeguard Guarantees have been eliminated before or by the Maturity Date.
As used herein, the "Safeguard Guarantees" means (i) the letters of credit
issued on the account of Safeguard Scientifics (Delaware) Inc. in the aggregate
amount of $4.5 Million, which letters of credit support certain obligations of
the Borrower in connection with the reorganization of its security business and
the sale of its furniture business in 1995, and (ii) any other letters of
credit, guarantees or other similar obligations of the Holder subsequently
entered into by the Holder for the benefit of the Borrower. The Safeguard
Guarantees shall be eliminated only when Safeguard Scientifics (Delaware), Inc.
receives written notice from the applicable issuer of each letter of credit that
such letter of credit has been returned to it for cancellation and that
therefore such letter of credit has been terminated by the issuer or receives
notice from the applicable beneficiary of the guarantee or similar obligation
that such guarantee or similar obligation has been terminated by the beneficiary
thereof and/or is no longer in effect.
7. Affirmative Covenants. The Borrower agrees that from the date of
execution of this Note until the earlier of (i) all obligations hereunder are
satisfied in full or (ii) forgiveness of the Note pursuant to Paragraph 6 above,
the Borrower shall (and shall cause each of its majority-owned subsidiaries, if
any, to):
(a) Payment of Taxes and Other Charges. Pay and discharge when due all
indebtedness and all taxes, assessments, charges, levies and other liabilities
imposed upon the Borrower, its income, profits, properties or business, except
those which currently are being contested in good faith by appropriate
proceedings and for which the Borrower shall have set aside adequate reserves or
made other adequate provisions acceptable to the Holder in its sole discretion.
(b) Maintenance of Existence, Operation and Assets;
Inspection. Do all things necessary to maintain, renew and keep in full force
and effect its organizational existence and all rights, permits and franchises
necessary to enable it to continue its business; continue in operation in
substantially the same manner as at present; conduct business and enter into
transactions only in the ordinary course, consistent with past practices; keep
its properties in good operating condition and repair; make all necessary and
proper repairs, renewals, replacements, additions and improvements thereto; and
permit representatives of the Holder to inspect the Borrower's properties and
its books and records and to make extracts therefrom at all reasonable times.
(c) Compliance with Laws. Comply with all laws applicable to the
Borrower and to the operation of its business (including, without limitation,
any statute, rule or regulation relating to employment practices and employee
benefits and to environmental, occupational and health standards and controls.
(d) Financial Reports. Deliver promptly such financial statements and
reports as the Holder may reasonably request including, without limitation,
annual financial statements audited or reviewed by independent certified public
accountants and interim financial statements prepared by the Borrower's
management. All such financial data shall be true, accurate and complete in all
material respects and shall be prepared in accordance with generally accepted
accounting principles in effect from time to time, consistently applied from
period to period, and shall contain such detail as the Holder may reasonably
require.
(e) Additional Reports. Provide prompt notice to the Holder of the
occurrence of any of the following (together with a description of the action
which the Borrower proposes to take with respect thereto): (i) any Event of
Default or potential Event of Default hereunder; (ii) any litigation filed by or
against the Borrower; or (iii) any event which might result in a material
adverse change in the Borrower's business, assets, operations, financial
condition or results of operations.
8. Event of Default.
(a) Any of the following shall constitute an event of default ("Event
of Default") hereunder:
(i) a default in the payment by the Borrower to the Holder of
principal or interest under this Note as and when the same
shall become due and payable;
(ii) a default by the Borrower in the performance of any
covenant set forth in Paragraph 7 hereof, which default
continues uncured for ten (10) days after written notice
thereof to the Borrower given by the Holder (or, if such
default cannot reasonably be cured within such ten (10)
day period and the Borrower is proceeding to cure with
reasonable diligence, such period of time as shall be
reasonably necessary to cure such default, but in no event
more than thirty (30) days);
(iii) an event of default by the Borrower under any other
obligation, instrument, note or agreement for borrowed
money, beyond any applicable notice and/or grace period;
or
(iv) institution of any proceeding by or against the Borrower
under any present or future bankruptcy or insolvency
statute or similar law and, if involuntary, if the same
are not stayed or dismissed within sixty (60) days, or the
Borrower's assignment for the benefit of creditors or the
appointment of a receiver, trustee, conservator or other
judicial representative for the Borrower or the Borrower's
property or the Borrower's being adjudicated a bankrupt or
insolvent.
(b) Upon the occurrence of an Event of Default hereunder, this Note
shall automatically without any action or notice by the Holder, be accelerated
and become immediately due and payable, and the Holder shall have all of the
rights and remedies available at law or in equity, or under any other agreement,
all of which remedies shall be cumulative.
(c) Neither the reference to nor the provisions of any agreement or
document referred to herein shall affect or impair the absolute and
unconditional obligation of the Borrower to pay the principal of and interest on
this Note as herein provided.
9. Dispute Resolution. Any action, suit or proceeding where the amount
in controversy as to at least one party, exclusive of interest and costs,
exceeds $1,000,000 ("Summary Proceeding"), arising out of or relating to the
obligations of the Borrower to the Holder set forth herein, or the breach,
termination or validity thereof, shall be litigated exclusively in the Superior
Court of the State of Delaware (the "Delaware Superior Court") as a summary
proceeding pursuant to Rules 124-131 of the Delaware Superior Court, or any
successor rules (the "Summary Proceeding Rules"). Each of the parties hereto
hereby irrevocably and unconditionally (i) submits to the jurisdiction of the
Delaware Superior Court for any Summary Proceeding, (ii) agrees not to commence
any Summary Proceeding except in the Delaware Superior Court, (iii) waives, and
agrees not to plead or to make, any objection to the venue of any Summary
Proceeding in the Delaware Superior Court, (iv) waives, and agrees not to plead
or to make, any claim that any Summary Proceeding brought in the Delaware
Superior Court has been brought in an improper or otherwise inconvenient forum,
(v) waives, and agrees not to plead or to make, any claim that the Delaware
Superior Court lacks personal jurisdiction over it, (vi) waives its right to
remove any Summary Proceeding to the federal courts except where such courts are
vested with sole and exclusive jurisdiction by statute and (vii) understands and
agrees that it shall not seek a jury trial or punitive damages in any Summary
Proceeding based upon or arising out of or otherwise related to the obligations
and waives any and all rights to any such jury trial or to seek punitive
damages.
In the event any action, suit or proceeding where the amount in
controversy as to at least one party, exclusive of interest and costs, does not
exceed $1,000,000 (a "Proceeding"), arising out of or relating to the
obligations or the breach, termination or validity thereof is brought, the
parties to such Proceeding agree to make application to the Delaware Superior
Court to proceed under the Summary Proceeding Rules. Until such time as such
application is rejected, such Proceeding shall be treated as a Summary
Proceeding and all of the foregoing provisions of this Section relating to
Summary Proceedings shall apply to such Proceeding.
If a Summary Proceeding is not available to resolve any dispute
hereunder, the controversy or claim shall be settled by arbitration conducted on
a confidential basis, under the U.S. Arbitration Act, if applicable, and the
then current Commercial Arbitration Rules of the American Arbitration
Association (the "Association") strictly in accordance with the terms of this
Agreement and the substantive law of the State of Delaware. The arbitration
shall be conducted at the Association's regional office located closest to the
Holder's principal place of business by three arbitrators, at least one of whom
shall be an attorney with substantial experience in creditor-debtor law.
Judgment upon the arbitrators' award may be entered and enforced in any court of
competent jurisdiction. Neither party shall institute a proceeding hereunder
unless at least 60 days prior thereto such party shall have given written notice
to the other party of its intent to do so.
Neither party shall be precluded hereby from securing equitable
remedies in courts of any jurisdiction, including, but not limited to, temporary
restraining orders and preliminary injunctions to protect its rights and
interests but such shall not be sought as a means to avoid or stay arbitration
or Summary Proceedings.
Each of the parties hereto agrees to accept service of process in any
Proceeding or Summary Proceeding at its address set forth in Paragraph 10(b)
below, and agrees not to plead or to make any objection to such service of
process in the Delaware Superior Court.
10. Miscellaneous.
(a) The Borrower hereby waives presentment, demand, protest and notice
of dishonor and protest, and also waives all other exemptions; and agrees that
extension or extensions of the time of payment of this Note or any installment
or part thereof may be made before, at or after the Maturity Date by agreement
by the Holder. Upon default hereunder the Holder shall have the right to offset
the amount owed by the Borrower against any amounts owed by the Holder in any
capacity to the Borrower, whether or not due, and the Holder shall be deemed to
have exercised such right of offset and to have made a charge against any such
account or amounts immediately upon the occurrence of an Event of Default
hereunder even though such charge is made or entered on the books of the Holder
subsequent thereto. The Borrower shall
pay to the Holder, upon demand, all costs and expenses, including, without
limitation, attorneys' fees and legal expenses, that may be incurred by the
Holder in connection with the enforcement of this Note.
(b) Notices required to be given hereunder shall be deemed validly
given (i) three business days after sent, postage prepaid, by certified mail,
return receipt requested, (ii) one business day after sent, charges paid by the
sender, by Federal Express Next Day Delivery or other guaranteed delivery
service, (iii) when sent by facsimile transmission during normal business hours,
or (iv) when delivered by hand:
If to the Holder:
Safeguard Scientifics (Delaware), Inc.
c/o Safeguard Scientifics, Inc.
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Senior Vice President, Finance
Fax No.: (000) 000-0000
If to the Borrower:
Core Technologies, Inc.
c/o Maris Equipment Company
000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Vice President, Finance and
Treasurer
Fax No.: (000) 000-0000
or to such other address, or in care of such other person, as the Holder or the
Borrower shall hereafter specify to the other from time to time by due notice.
(c) Any failure by the Holder to exercise any right hereunder shall not
be construed as a waiver of the right to exercise the same or any other right at
any time. No amendment to or modification of this Note shall be binding upon the
Holder unless in writing and signed by it. Any provision hereof found to be
illegal, invalid or unenforceable for any reason whatsoever shall not affect the
validity, legality or enforceability of the remainder hereof. This Note shall
apply to and bind the successors of the Borrower and shall inure to the benefit
of the Holder, its successors and assigns.
(d) This Note shall be governed by and interpreted in accordance with
the laws of the State of Delaware.
IN WITNESS WHEREOF, the Borrower, by its duly authorized officer
intending to be legally bound hereby, has duly executed this Subordinated Note
as of the date first written above.
ATTEST: CORE TECHNOLOGIES, INC.
________________________ By:___________________________
Name:_________________________
Title:________________________
