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EXHIBIT 10.6
AMENDMENT TO
AGREEMENT TO RESTRUCTURE
This AMENDMENT TO AGREEMENT TO RESTRUCTURE (this "Amendment")
is made as of the 18th day of May, 2001 by and among Warren V. Musser ("WVM"),
an individual residing at 710 Sproul Road, Bryn Mawr, PA 19010, Hilary Grinker
Musser ("HGM"), an individual residing at 710 Sproul Road, Bryn Mawr, PA 19010,
Safeguard Scientifics, Inc. ("SFE"), a Pennsylvania corporation with offices at
435 Devon Park Drive, 800 Building, Wayne, PA 19087, and Bonfield Insurance,
Ltd. ("Bonfield," and together with SFE, "Safeguard"), a British Virgin Islands
corporation with offices c/o Safeguard Delaware, Inc., 2711 Centerville Road,
Suite, 400, Wilmington, DE 19808.
BACKGROUND
A. WVM, HGM, SFE and Bonfield entered into that certain Agreement to
Restructure dated as of April 16, 2001 (the "Agreement"), pursuant to which
certain of the indebtedness of WVM was restructured and certain loans were made
and agreed to be made by Bonfield, subject to certain conditions set forth in
the Agreement.
B. The parties hereto desire to amend certain of the Phase II
Conditions set forth in the Agreement and certain schedules to the Agreement to
more accurately reflect the transactions described in the Agreement as currently
contemplated.
In consideration of the foregoing and the premises and the
agreements hereinafter set forth, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Amendment to Section 4.5 of the Agreement. Section 4.5 of
the Agreement is hereby amended by deleting Section 4.5 in its entirety and
substituting in lieu thereof the following Section 4.5:
Section 4.5 Conditions Precedent to Effectiveness of Phase II
of this Agreement. The parties to this Agreement hereby agree
that the following are the "Phase II Conditions":
(a) Documents to be Delivered. The respective parties shall
have delivered or caused to be delivered to each other, on or
before the Phase II Effective Date, the following agreements,
instruments and other documents, each duly executed by the
respective parties thereto and each to be effective as of the
Phase II Effective Date:
(1) Amended and Restated Note. The Amended and
Restated Note, in the form attached hereto as Exhibit
A-1.
(2) New Mortgage. The New Mortgage with respect to
the Vassar Street Property together with a
non-recourse Guaranty in favor of Bonfield from 304
Vassar Street, L.P. and 304 Vassar Street, Inc., each
in form and substance satisfactory to Safeguard.
(3) Vassar Street Lock Box. A Lock Box Agreement
regarding the rents and other amounts payable with
respect to the Vassar Street Property among
Safeguard, 304 Vassar Street, L.P., MIT, Cambridge
Technology Partners (Massachusetts), Inc. ("CTP") and
Boston Private Bank, together with an
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Intercreditor Agreement between MIT and Bonfield,
each in form and substance satisfactory to Safeguard.
(4) Third Party Consents. Consents to the
transactions contemplated hereby, in form and
substance satisfactory to Safeguard, by each of MIT
and, if required, CTP with respect to the New
Mortgage in favor of Bonfield on the Vassar Street
Property.
(5) Lake Naomi Option Waiver. A letter to Safeguard
waiving HGM's option to purchase the Lake Naomi
property, in form and substance satisfactory to
Safeguard, or receipt by Bonfield of funds in payment
of the exercise price.
(6) Phase I Documents. Any document required to have
been delivered pursuant to Article III hereof, the
delivery of which was waived as of the Phase I
Effective Date by the requisite party or parties,
being:
(i) Control Agreement. Control Agreement by
and among WVM, Bonfield and Legg Mason with
respect to the WVM Legg Mason Account;
(ii) Stock Powers; Forms 144. Undated Stock
Powers executed in blank for each of the
Securities listed on Schedule 3.2 of the
Agreement (other than Nobel Education
Dynamics, Inc.) together with Forms 144
executed in blank for each applicable
entity;
(iii) Financing Statements. UCC-1 Financing
Statements for WVM in Wisconsin and 304
Vassar Street, Inc. in Delaware.
(iv) SFE Option Documents. A Notice to
Issuer pursuant to Uniform Commercial Code
("UCC") Section 8106 with respect to the SFE
Option (must be signed by Pledgor and
Transfer Agent), together with the delivery
to Bonfield of the Option.
(v) Lubert Consent. Consent to the
transactions contemplated hereby by Ira
Lubert, with respect to the assignment of
the proceeds of the Lubert Asset Purchase,
together with documentation evidencing the
terms of such assignment in form and
substance satisfactory to Safeguard;
(vi) Additional Documentation Relating to
Owned Assets. Documentation evidencing WVM's
interest in each of the following (including
Notices to Issuers pursuant to
UCC Section 8106 with respect to such
interests): (A) 304 Vassar Street, L.P.; (B)
304 Vassar Street, Inc.; (C) WDK Associates
I, L.P.; (D) WDK Associates II, L.P.; (E)
Wheatley Partners II, L.P.; (F) RRE GIGA
Investors, L.P.; (G) Technology Leaders,
L.P.; (H) Technology Leaders II Management,
L.P.; (I) Eastern Technology Fund, LP; (J)
Plum Holdings, L.P.; (K) NEPA Venture Fund
II, L.P.; (L) The Emerald HomeState PA
Growth Fund- A of The Emerald Funds held in
account number [INTENTIONALLY OMITTED].
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(7) Additional Safeguard Release. A Release by SFE
and Bonfield, in the form attached hereto as Exhibit
E-6.
(8) Opinions of Counsel. The additional legal
opinions reasonably requested by Safeguard in
connection with this Agreement, including without
limitation the opinions of DBR, counsel for WVM and
the WVM Entities and FROF, each in form and substance
satisfactory to Safeguard and its counsel.
(9) Legg Mason Documents. If Safeguard elects to pay
off in full WVM's Outstanding Obligations to Legg
Mason, the Legg Mason Guaranty, marked "cancelled,"
and any remaining cash collateral held by Legg Mason
shall have been returned to Safeguard.
(b) Representations and Warranties. Each of the
representations and warranties made by each party hereto shall
be true and correct as of the Phase II Effective Date in all
material respects.
(c) Non-Revocation of Release. At least seven (7) days have
passed since the Phase I Effective Date and WVM has not
revoked the WVM Release pursuant to the provisions of Section
10 thereof.
(d) Termination of Brous Account. Evidence satisfactory to
Safeguard that WVM's trading account with H.D. Brous and
Associates has been terminated.
2. Exhibit 1.1. Exhibit 1.1 hereto is hereby incorporated into
the Agreement as Exhibit 1.1 thereto.
3. Schedule 1.1. Schedule 1.1 of the Agreement is hereby
amended by deleting Schedule 1.1 in its entirety and substituting in lieu
thereof the Schedule 1.1 attached hereto.
4. Schedule 3.2. Schedule 1.1 of the Agreement is hereby
amended by deleting Schedule 1.1 in its entirety and substituting in lieu
thereof the Schedule 1.1 attached hereto.
5. Representations and Warranties. Each of the parties hereto
represents and warrants to every other party hereto as follows:
a. Representations. The representations and
warranties made in the Agreement by such party are true and correct as of the
date hereof and such party is not aware of and has not taken any actions which
have or would result in any default or Event of Termination under the Agreement
(other than any defaults which are no longer continuing).
b. Power and Authority. Such party has the legal
right, power and authority to enter into and perform this Amendment and all
actions necessary or appropriate for the execution and performance of this
Amendment by such party have been taken; and the Amendment and the Agreement, as
amended, each constitute the valid and binding obligations of such party,
enforceable in accordance with their respective terms.
c. No Violations of Law or Agreements. The making and
performance of the Amendment by such party will not (i) violate any provisions
of any law or regulation, federal, state or
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local or (ii) result in any breach or violation of, or constitute a default or
require the obtaining of any consent under, any agreement or instrument by which
such party or its property may be bound.
6. Conditions to Effectiveness of Amendment. This Amendment
shall be effective upon Safeguard's receipt of this Amendment duly executed by
each of WVM, HGM, SFE and Bonfield and acknowledged by 304 Vassar Street, L.P.
7. Affirmations. Each party hereto hereby: (i) affirms all the
provisions of the Agreement, as amended by this Amendment, and (ii) agrees that
the terms and conditions of the Agreement.
8. Miscellaneous.
a. Governing Law This Amendment shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to conflicts of law principles.
b. Successors and Assigns. All terms and provisions
of this Amendment shall be for the benefit of and be binding upon and
enforceable by the respective successors and assigns of the parties hereto.
c. Counterparts. This Amendment may be executed in
any number of counterparts with the same effect as if all the signatures on such
counterparts appeared on one document and each such counterpart shall be deemed
an original.
d. No Waiver. Except as expressly set forth herein,
the execution, delivery and performance of this Amendment shall not operate as a
waiver of any right, power or remedy of any party under the Agreement and the
agreements and documents executed in connection therewith or constitute a waiver
of any provision thereof.
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IN WITNESS WHEREOF, and intending to be legally bound hereby,
the parties hereto, by their respective duly authorized representatives, have
executed this Amendment to Agreement to Restructure the day and year first above
written.
SAFEGUARD SCIENTIFICS, INC.
By: /S/ N. JEFFREY KLAUDER
Name: N. Jeffrey Klauder
BONFIELD INSURANCE, LTD.
By: /S/ N. JEFFREY KLAUDER
Name: N. Jeffrey Klauder
Witness:
By:_______________________________ /S/ WARREN V. MUSSER
Warren V. Musser
Witness:
By:_______________________________ /S/ HILARY GRINKER MUSSER
Hilary Grinker Musser
Acknowledged and Agreed this ____ day
of May, 2001:
304 VASSAR STREET, L.P.,
By: 304 VASSAR STREET, INC, its general partner
By:_______________________________
Name:
Title:
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