Exhibit 10.1
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REVOLVING NOTE
(Safeguard Scientifics, Inc.)
Wayne, Pennsylvania
$12,000,000 June 12, 1997
FOR VALUE RECEIVED, Safeguard Scientifics, Inc., a Pennsylvania
corporation (the "Borrower"), having an office at 800 The Safeguard Building,
000 Xxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx 00000, hereby promises to pay to
the order of Xxxxxxx Computer Associates, Inc., a Pennsylvania corporation,
or its registered assigns (the "Lender"), at the Lender's office located at
00 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, or at such other place
in the continental United States as the Lender may designate in writing, UPON
DEMAND, in lawful money of the United States, and in immediately available
funds, the principal sum of up to Twelve Million and no/100 Dollars
($12,000,000), or so much thereof as shall have been advanced by the Lender
to the Borrower as hereinafter set forth and then be outstanding, and to pay
interest thereon monthly in arrears on the first business day of each
calendar month at an annual rate equal to the Borrower's effective cost of
borrowing less .75%. All amounts advanced hereon, but not to exceed
$12,000,000 at any one time outstanding in the aggregate, shall be so
advanced upon the request of the Borrower, and may be repaid and reborrowed,
from time to time, in whole or in part, so long as no event of default has
occurred and is continuing. All amounts so advanced hereon and all payments
made on account of the principal hereof shall be recorded in the books of the
Lender, which records shall be final and binding in the absence of manifest
error, but failure to do so shall not release the Borrower from any of its
obligations hereunder.
All payments made on this Note (including, without limitation,
prepayments) shall be applied, at the option of the Lender, first to late
charges and collection costs, if any, then to accrued interest and then to
principal. Interest payable hereunder shall be calculated for actual days
elapsed on the basis of a 360-day year. Accrued and unpaid interest shall be
due and payable upon maturity of this Note. After maturity or in the event
of default, interest shall continue to accrue on the Note at the rate set
forth above and shall be payable on demand of the Lender.
The outstanding principal amount of this Note may be prepaid by the
Borrower upon notice to the Lender in whole at any time or in part from time to
time without any prepayment penalty or premium; provided, that upon such payment
any interest due to the date of such prepayment on such prepaid amount shall
also be paid.
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.
An event of default hereunder shall consist of:
(i) a default in the payment by the Borrower to the Lender of
principal or interest under this Note as and when the same shall become
due and payable;
(ii) 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;
(iii) 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.
Upon the occurrence of any event of default, interest shall accrue on the
outstanding balance of this Note at the rate of interest otherwise payable
hereunder plus three percent (3%), the entire unpaid principal amount of this
Note and all unpaid interest accrued thereon shall, at the sole option of the
Lender, without notice, become immediately due and payable, and the Lender shall
thereupon have all the rights and remedies provided hereunder or now or
hereafter available at law or in equity.
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 this Agreement, 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 this Agreement
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 this Agreement 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 Borrower's
principal place of business by three arbitrators, at least one of whom shall be
knowledgeable in general business matters and one of whom shall be an attorney.
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 shall
not be sought as a means to avoid or stay arbitration or Summary Proceedings.
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 maturity by agreement by the
Lender. Upon default hereunder the Lender shall have the right to offset the
amount owed by the Borrower against any amounts owed by the Lender in any
capacity to the Borrower, whether or not due, and the Lender 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 Lender
subsequent thereto. The Borrower shall pay to the Lender, upon demand, all
costs and expenses, including, without limitation, attorneys' fees and legal
expenses, that may be incurred by the Lender in connection with the enforcement
of this Note.
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, or (iv) when delivered by hand:
If to the Lender: Xxxxxxx Computer Associates, Inc.
00 Xxxxxx Xxxxxx Xxxxxxx
Malvern, Pennsylvania 19355
Attn: Xxxxxx X. Xxxxxxxx
Chief Financial Officer
If to the Borrower: Safeguard Scientifics, Inc.
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Chief Financial Officer
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.
Any failure by the Lender 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 Lender 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 Lender, its successors and assigns.
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 Revolving Note as of the date
first written above.
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Xxxxxxx X. Xxxxx
Chief Financial Officer
