Loan and Terms of Payment 2.1 Promise to Pay. Borrower hereby unconditionally promises to pay Bank the outstanding principal amount of all Credit Extensions and accrued and unpaid interest thereon as and when due in accordance with this Agreement.
Terms of Repayment 1. If I do not meet the criteria for loan forgiveness, I shall repay this loan, including accrued interest, to the State of Wisconsin.
a. The interest rate will be 5% annually and interest will begin to accrue upon the initial date of repayment.
b. I shall have ten years from the initial date of repayment to repay my loan in full. The start of the repayment period will be determined by HEAB, but will begin no sooner than six months after I graduate or leave my current program of study. If I do not repay my loan in full by the end of the ten-year repayment period, I shall be required to make a balloon payment and pay the remaining balance in full.
c. I shall make minimum monthly payments due by the 1st of each month. The minimum monthly payment amount will be the amount required to pay the total amount loaned in full in 120 months (ten years) at an annual interest rate of 5%.
d. I may request, with appropriate supporting documentation, a deferment of my loan payments. Interest will not accrue during times of HEAB-approved deferments. HEAB may grant deferments for: a) full-time enrollment at an accredited institution, b) up to three years of military service, Peace Corps, or VISTA, and c) up to six months for temporary unemployment or pregnancy/childbirth/legal adoption of a child.
Amount and Terms of the Loan The Loan. Subject to the terms of this Agreement, each Purchaser agrees to lend to the Company at the Closing (as hereinafter defined) the amount set forth opposite such Purchaser’s name on the Schedule of Purchasers attached to this Agreement (each, a “Loan Amount”) against the issuance and delivery by the Company of a convertible promissory note for such amount, in substantially the form attached hereto as Exhibit A (each, a “Note” and collectively, the “Notes”).
Amount and Terms of Loan 1.1 Subject to the terms and conditions of this Agreement, the Lenders agree to loan to the Borrower, and the Borrower agrees to borrow from Lenders, funds in an aggregated principal amount of up to Five Million Two Hundred Thousand US Dollars ($5,286,306.25) (the "Loan"), in installments of One Hundred Thousand Dollars or greater (each a "Loan Disbursement").
1.2 The Borrower acknowledges receipt of Loan Disbursements in the aggregate amount of Two Million Six Hundred Thousand Dollars ($2,600,000.00) prior to the date hereof (collectively, the “Initial Disbursement”). The Borrower may submit to Borrower written requests for additional Loan Disbursements from time after the date hereof, but in no event later than March 1, 2011 (each, a “Loan Disbursement Request”). Each such Loan Disbursement Request is subject to the Lenders' approval, and the maximum amount advanced by the Lenders shall not exceed the total amount of the Loan. The Borrower may decline to submit any further Loan Disbursement Requests for any reason, in its sole and absolute discretion. The Lenders may decline to approve any or all such Loan Disbursements Requests for any reason, in their sole and absolute discretion.
1.3 Loan Disbursements shall be made within five (5) business days following Lenders' approval of the applicable Loan Disbursement Request. Interest shall accrue on each Loan Disbursement from the date of receipt of funds (each a "Disbursement Date") by the Borrower.
1.4 The proceeds of the Loan shall be used by the Borrower to finance the general working capital requirements of the Borrower.
1.5 The obligations of Borrower with respect to the Loan shall be guaranteed by Guarantor, and shall be secured by liens and security interests on all of the assets of the Guarantor (including without limitation all intellectual property interests of Guarantor), pursuant to the terms of a Guarantee and a Debenture by and between the Lenders and Guarantor (together, the “Guaranty Documents”). Such Guarantee shall remain in effect until the earlier of such time as (i) all obligations of Borrower with respect to the Loan have been satisfied and (ii) the right to make Loan Disbursement Requests is waived or terminated, or the Guarantor first reports positive accumulated earnings and profits within the meaning of Section 956 of the Internal Revenue Code of 1986, as amended (the “Guaranty Term”).
1.6 Interest on the Loan shall be payable as set forth in the applicable Note (as defined below). Interest shall be computed on the basis of a 360-day year, for the actual number of days elapsed. Default interest shall be charged in accordance with the terms of the applicable Note.
1.7 The principal balance of the Loan shall be payable as set forth in the applicable Note.
1.8 As evidence of the Borrower’s obligations under the Loan, upon receipt of each Loan Disbursement, the Borrower shall execute and deliver to the Lender(s) making such Loan Disbursement a Secured Convertible Promissory Note (the “Note”) in the form attached hereto as Exhibit B, dated as of the Disbursement Date, and with a principal amount of the Loan Disbursement.
1.9 The Notes issued to Initial Lender in connection with the Initial Disbursement (the "Initial Notes") shall be exchanged by Initial Lender for an Amended and Restated Note, in the aggregate principal amount of the Initial Disbursement, plus all interest accrued thereon and unpaid as of the date hereof (the "Amended and Restated Note"). The terms of the Amended and Restated Note shall be as set forth in this Agreement.
1.10 Simultaneous with the making of a Loan Disbursement and its receipt of a Note in connection therewith, each Lender shall execute counterpart signature pages to this Agreement, and shall become a party to, and bound by, this Agreement to the same extent as if such Lender had been a Lender as of the date of this Agreement. In connection with each such Loan Disbursement, the Schedule of Lenders attached to this Agreement as Exhibit A will be amended to add to Exhibit A the names of the Lender(s) making the Loan Disbursement as a "Lender" hereunder and to set forth the principal amount of each Note issued to such Lender(s). The Borrower will promptly furnish to each Lender upon request a copy of Exhibit A as amended to the date of such request.
1.11 As additional consideration paid to the Lenders in connection with the Loan, and notwithstanding any partial or full payment by Borrower of the principal or interest due on the Notes or the occurrence of the Maturity Date set forth in the Notes, and in addition to any and all other obligations of Borrower hereunder:
(a) Borrower will pay to each Lender an amount (the “Revenue Incentive Payment”) equal to the product obtained by multiplying (i) such Lender's Pro Rata Interest (as defined below), times (ii) an amount (the “Revenue Incentive Payment”) equal to five percent (5%) of the Net Sales Revenue received by the Borrower (or any Borrower Affiliate) from, arising out of or in connection with the sale, licensing, other distribution or any other commercialization, including without limitation the sale of "beta" versions (collectively, a “Sale”) of Borrower's Facemail Product (as defined below) during the period (the “Measuring Period”) commencing on the first day of commercial availability of the Facemail Product and ending at the close of the calendar quarter during which the 5th anniversary of such commercial availability occurred. For the avoidance of doubt: (i) Revenue Incentive Payments shall be due with respect to Net Sales Revenue received by the Borrower (or a Borrower Affiliate) during and after the Measuring Period provided such Net Sales Revenue arose from the Sale of the Facemail Product during the Measuring Period; (ii) the Facemail Product will be commercially available upon (and not before) the first Sale for revenue to a non-Affiliate; and (iii) a Sale shall include the sale, transfer, licensing or other disposition of the Facemail Product in its entirety, in a single transaction or a series of transactions.
(b) Net Sales Revenue will be reported quarterly within 30 days of the close of each calendar quarter (each, a “Reporting Period”) during the Measuring Period. Within thirty (30) days after the end of each Reporting Period, Borrower will provide to Agent either (i) a report reasonably detailing Net Sales Revenue for the preceding Reporting Period when there has been any Net Sales Revenue with respect to such Reporting Period the calculation of the Revenue Incentive Payment, and/or (ii) a letter signed by a Borrower officer certifying that there has been no Net Sales Revenue when there has been no Net Sales Revenue with respect to such Reporting Period. With each such report will be paid any required Revenue Incentive Payment. Borrower will keep accurate books of account containing all particulars that may reasonably be deemed necessary for the purpose of showing the Revenue Incentive Payments due to the Lenders hereunder. Said books of account will be kept at Company’s principal place of business. Not more than once during every twelve (12) month period during the Measurement Period and for so long as Net Sales Revenue are being generated, and upon the Agent's advance request of at least fifteen (15) days, Borrower will make said books and the supporting data available for inspection by Agent or its agents during normal business hours for the purpose of verifying Company’s receipt of Net Sales Revenue and calculations of Revenue Incentive Payments due under this Agreement. Should such inspection lead to the discovery of a greater than five percent (5%) discrepancy in reporting to the Lenders' detriment, Company agrees to pay the reasonable fees and expenses of Agent's agents who conducted the inspection plus an amount equal to ten percent (10%) of the amount of such discrepancy. Company will promptly pay to Agent for the benefit of the Lenders all amounts appropriately determined by any inspection to be due to Developer.
(c) As used in this Section 1.11:
Amount and Terms of the Loans 2.1 Commitments 25 2.2 Borrowings 26 2.3 Disbursements; Funding Reliance; Domicile of Loans 29 2.4 Evidence of Debt; Notes 30
Amount and Terms of Loans Pursuant to the terms of this Agreement, Lender shall make Loans to the Company, upon its request and within three (3) business days of such request, which in the aggregate do not exceed Four Hundred Fifty Thousand and 00/100 Dollars ($450,000.00). The Loans and each of them shall be made upon the following terms and conditions:
(a) The maximum aggregate principal amount of the Loans shall be in the amount of Four Hundred Fifty Thousand and 00/100 Dollars ($450,000.00), and shall be evidenced by a promissory grid note (the "Note") with appropriate insertions of names, dates and amounts. The Loans shall bear interest at a rate per annum equal to ten percent (10.00%). Interest shall be charged on the principal balance from time to time outstanding on the basis of the actual number of days elapsed computed on the basis of a three hundred sixty (360) day year. Interest shall be due and payable, in arrears on the Maturity Date (as hereinafter defined);
(b) The Loans made by Lender to the Company pursuant to this Paragraph 2 shall be recorded in an account on the books of Lender bearing the Company's name (the "Company's Account"). There shall also be recorded in the Company's Account all payments made by the Company on the Loans and interest accrued thereon.
(c) The outstanding principal amount owed hereunder, together with all accrued but unpaid interest thereon, shall be due and payable in full on the earlier of (i) the closing of an initial public offering of the Company's securities and (ii) March 3, 2002 (the "Maturity Date");
(d) Maker shall have the right to prepay the outstanding principal amount of this Note, in whole or in part at any time.
(e) The provisions of this Paragraph 2 shall continue in effect until the Maturity Date, PROVIDED, HOWEVER, that Lender's obligations to advance Loans to the Company pursuant to the provisions of this Paragraph 2 shall cease upon the occurrence of an Event of Default (as defined in Paragraph 3 hereof) until such time as said Event of Default is cured.
Issuance and Terms of Equipment Notes The Equipment Notes shall be dated the date of issuance thereof, shall be issued in three separate series consisting of Series A, Series B and Series C and in the maturities and principal amounts and shall bear interest as specified in Schedule I hereto. On the date of the consummation of the Transactions, each Equipment Note shall be issued to the Subordination Agent on behalf of the Pass Through Trustees under the Pass Through Trust Agreements. The Equipment Notes shall be issued in registered form only. The Equipment Notes shall be issued in denominations of $1,000 and integral multiples thereof, except that one Equipment Note of each Series may be in an amount that is not an integral multiple of $1,000. Each Equipment Note shall bear interest at the Debt Rate (calculated on the basis of a year of 360 days comprised of twelve 30-day months) on the unpaid Original Amount thereof from time to time outstanding, payable in arrears on April 1, 1998, and on each October 1 and April 1 thereafter until maturity. The Original Amount of each Equipment Note shall be payable on the dates and in the installments equal to the corresponding percentage of the Original Amount as set forth in Schedule I hereto which shall be attached as Schedule I to the Equipment Notes. Notwithstanding the foregoing, the final payment made under each Equipment Note shall be in an amount sufficient to discharge in full the unpaid Original Amount and all accrued and unpaid interest on, and any other amounts due under, such Equipment Note. Each Equipment Note shall bear interest at the Payment Due Rate (calculated on the basis of a year of 360 days comprised of twelve 30-day months) on any part of the Original Amount, Make-Whole Amount, if any, and, to the extent permitted by applicable Law, interest and any other amounts payable thereunder not paid when due for any period during which the same shall be overdue, in each case for the period the same is overdue. Amounts shall be overdue if not paid when due (whether at stated maturity, by acceleration or otherwise). Notwithstanding anything to the contrary contained herein, if any date on which a payment under any Equipment Note becomes due and payable is not a Business Day then such payment shall not be made on such scheduled date but shall be made on the next succeeding Business Day and if such payment is made on such next succeeding Business Day, no interest shall accrue on the amount of such payment during such extension.
Amounts and Terms of Loans 2 1.1 Loans...........................................................................................2 1.2
Loans and Terms of Payment 2.1 [Reserved].
Amounts and Terms of the Loans 33 2.1. The Revolving Credit Loans............................................................................ 33 2.2. Making the Loans...................................................................................... 33 2.3. Fees ................................................................................................ 35 2.4. Reduction and Termination of the Commitments.......................................................... 36 2.5. Repayment............................................................................................. 36 2.6. Prepayments........................................................................................... 37 2.7. Conversion/Continuation Option........................................................................ 38 2.8. Interest.............................................................................................. 39 2.9. Interest Rate Determination and Protection............................................................ 40 2.10.
