Quarterly Report — Form 10-Q
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-Q Form 10-Q Dated June 30, 2001 21 103K
3: EX-9 Exhibit 10.2 Sub Note 250,000 3± 18K
2: EX-10 Exhibit 10.1 Sub Note 100,000 3± 18K
11: EX-10 Exhibit 10.10 Warrant Hil 11 42K
12: EX-10 Exhibit 10.11 Warrant/Marden 11 42K
13: EX-10 Exhibit 10.12 Letter Argeement 1 8K
14: EX-10 Exhibit 10.13 Letter Agreement 1 8K
4: EX-10 Exhibit 10.3 Sub Note 375,000 3± 18K
5: EX-10 Exhibit 10.4 Sub Note 75,000 3± 18K
6: EX-10 Exhibit 10.5 Sub Note 450,000 3± 18K
7: EX-10 Exhibit 10.6 Sub Note 300,000 3± 18K
8: EX-10 Exhibit 10.7 Warrant Hil 11 42K
9: EX-10 Exhibit 10.8 Warrant Hil 11 42K
10: EX-10 Exhibit 10.9 Warrant Hil 11 42K
EX-9 — Exhibit 10.2 Sub Note 250,000
EXHIBIT 10.2
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), NOR UNDER ANY STATE SECURITIES LAW AND MAY NOT BE PLEDGED, SOLD,
ASSIGNED OR TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT WITH RESPECT THERETO
IS EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW OR (ii) THE
COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF THIS NOTE, WHICH COUNSEL
IS SATISFACTORY TO THE COMPANY, THAT THE NOTE MAY BE PLEDGED, SOLD, ASSIGNED OR
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
APPLICABLE STATE SECURITIES LAW.
10% Subordinated Promissory Note
Amount: $250,000 Dated: May 21, 2001
San Diego, California
nSTOR CORPORATION, INC. ("Company"), for value received, hereby promises
to pay on June 30, 2001, 10:00 a.m., local time ("Maturity") to H. Irwin Levy or
to his order or to such persons as he may designate from time to time ("Holder")
in lawful money of the United States of America, upon Holder's presentation and
surrender of this 10 % Subordinated Promissory Note ("Note") at the principal
office of the Company: (i) the principal sum of Two Hundred Fifty Thousand
Dollars ($250,000) and (ii) interest on the amount outstanding at the rate of
ten percent (10 %) per annum.
At the option of the Company, any payment by the Company required
hereunder may be made by check mailed to the Holder at the last address for the
Holder appearing on the records of the Company. This Note may be prepaid, in
whole or part without penalty, at any time after the date hereof.
1. No Avoidance. The Company shall not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issuance or sale of securities or any other voluntary
action, nor shall the Holder, by any action, avoid or seek to avoid the
performance of any of the provisions of this Note.
2. Application of Payments. All payments received shall be applied first to
charges other than interest and principal, if any, owing hereunder, then to
accrued interest then due, then to principal, except that, after the occurrence
and during the continuation of any default under this Note, all amounts received
shall be applied in such order as Holder, in its sole discretion, may elect.
3. No Waiver. The acceptance by Holder of any payment under this Note after the
date that such payment is due shall not constitute a waiver of the right to
require prompt payment when due of future or succeeding payments or to declare a
default as herein provided for any failure to so pay. The acceptance by Holder
of the payment of a portion of any installment at any time that such installment
is due and payable in its entirety shall neither cure nor excuse the default
caused by the failure to pay the whole of such installment and shall not
constitute a waiver of Holder's right to require full payment when due of all
future or succeeding installments.
4. Subordination. Indebtedness evidenced by this Note shall be subordinate in
interest, and in right of payment as to principal and accrued interest, to the
payment of any and all "Senior Indebtedness." "Senior Indebtedness" shall mean:
(i) all indebtedness owed to Wells Fargo Credit, Inc., or any successor thereof
(the "Senior Lender"), whether or not secured, including, without limitation all
indebtedness under revolving lines of credit and term loans; (ii) all
obligations to reimburse the Senior Lender in respect of amounts paid under
letters of credit, acceptance or other similar instruments; and (iii) all
deferrals, renewals, extensions and refundings of, and amendments, modifications
and supplements to any of the Senior Indebtedness described above.
5. Default. In the event that the Company: (i) fails to make any payment of
principal or interest hereunder when due and such default shall continue for
thirty (30) days after written notice thereof has been delivered to the Company;
(ii) files a petition or is subject to proceedings for protection under any
bankruptcy, receivership, reorganization or insolvency laws; (iii) makes a
general assignment of all or substantially all of its assets for the benefit of
its creditors; (iv) has a trustee or receiver appointed for the Company, its
assets or a substantial portion of its assets; (v) is adjudicated by a court of
competent jurisdiction to be insolvent or bankrupt; or (vi) fails to observe any
of the covenants or agreements on the part of the Company contained in this Note
continuing (without being waived or cured) for a period of thirty (30) days
after receipt from Holder of written notice of such failure (unless the issue of
whether such failure has been cured is being contested in good faith by the
Company); then the Holder may, by written notice to the Company, declare the
outstanding principal amount of this Note to be immediately due and payable,
whereupon the outstanding principal amount hereof along with any accrued but
unpaid interest shall become and be immediately due and payable without
presentment, demand, protest or notice of any kind and the Holder shall have all
rights and remedies provided under this Note.
6. Transferability. This Note has not been registered under the Securities Act
of 1933, as amended (the "Act"), nor under any state securities law and may not
be pledged, sold, assigned or transferred until a registration statement with
respect thereto is effective under the Act and any applicable state securities
law, or the Company receives an opinion of counsel to the Holder, which counsel
is satisfactory to the Company, that the Note may be pledged, sold, assigned or
transferred without an effective registration statement under the Act or
applicable state securities law.
7. Registration.
a. The Holder, by his acceptance of this Note, acknowledges that he is
aware that this Note has not been registered under the Securities Act of
1933, as amended ("Act"), or the securities laws of any state or other
jurisdiction.
b. The Holder warrants and represents to the Company that he has
acquired this Note for investment and not with a view to, or for sale in
connection with, any distribution of this Note or with any intention of
distributing or selling this Note
c. The Holder has no right to demand that the Company register this
Note.
8. Severability. In case any provision of this Note is held invalid, illegal or
unenforceable by a court of competent jurisdiction, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
9. Choice of Law; Venue and Jurisdiction; Legal Proceedings. This Note shall be
governed by and construed in accordance with the laws of the State of Florida,
without reference to choice of law principles, and the sole jurisdiction and
venue for any claim, suit, or proceeding brought in connection with this Note
shall be Palm Beach County, Florida. In any suit, action or proceeding arising
out of or in connection with this Note, the prevailing party shall be entitled
to an award of the reasonable attorneys' fees and disbursements incurred by such
party in connection therewith.
10. Business Day. If any interest payment date or the Maturity date under this
Note shall not be a business day in the State of California, payment may be made
on the next succeeding day that is a business day in the State of California,
and shall be deemed hereunder as made on such interest payment date or maturity
date, notwithstanding any other provisions contained in this Note.
11. Notices. Unless otherwise provided herein, all demands, notices, consents,
requests and other communications hereunder shall be in writing and shall be
deemed to have been given when delivered in person or mailed first class,
postage-paid, addressed (i) if to the Company, to the Company's business office
in the State of California, and (ii) if to the Holder, at the last address for
the Holder listed on the records of the Company.
12. Modification. This Note represents the entire understanding of the parties
hereto relating to the subject matter hereof, and supersedes any and all other
prior agreements between the parties. The terms and provisions of this Note
cannot be modified or amended orally or by course of dealing or conduct, or in
any other manner, except in a writing signed by the party against whom
enforcement is sought.
13. Binding Effect. This Note shall be binding on and inure to the benefit of
the respective parties hereto and their successors and assigns.
14. Compliance With Law. It is the responsibility of the Holder to ensure that
all payments received by the Holder comply with all tax, securities and other
applicable laws, rules, and regulations of all applicable authorities, and to
provide the Company with any written consents or other documents necessary for
compliance with such laws, rules and regulations.
IN WITNESS WHEREOF, the Company has caused this Note to be signed by its
authorized officer and its corporate seal to be affixed hereto, as of this ___
day of May 2001.
NSTOR CORPORATION, INC.,
a Delaware corporation
By:/s/ Larry Hemmerich
Its:CEO
Dates Referenced Herein and Documents Incorporated by Reference
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