FIFTH AMENDED AND RESTATED
REVOLVING PROMISSORY NOTE
$5,000,000 Reston, Virginia
November 5, 1999,
but effective as of October 13, 1999
FOR VALUE RECEIVED, the undersigned, SKY ALLAND RESEARCH, INC., a
Maryland corporation and THE DATA GROUP II, INC., a Maryland corporation
(collectively, the "Borrowers" and each a "Borrower"), jointly and severally,
promise to pay to the order of SILICON VALLEY BANK, a California-chartered bank,
doing business in Virginia as "Silicon Valley East" ("Bank"), at such place as
the holder hereof may designate, in lawful money of the United States of
America, the aggregate unpaid principal amount of all advances ("Advances") made
by Bank to Borrowers in accordance with the terms and conditions of the Loan and
Security Agreement among Borrowers and Bank dated as of May 28, 1998 (as amended
from time to time, the "Loan Agreement"), up to a maximum principal amount of
Five Million Dollars ($5,000,000) (the "Principal Sum"), or so much thereof as
may be advanced or readvanced and remains unpaid. Borrowers shall also pay
interest on the aggregate unpaid principal amount of such Advances, as follows:
Commencing as of the date hereof and continuing until repayment in full
of all sums due hereunder, the unpaid Principal Sum shall bear interest at the
variable rate of interest, per annum, most recently announced by Bank as its
"prime rate," whether or not such announced rate is the lowest rate available
from Bank (the "Prime Rate"). The rate of interest charged under this Note shall
change immediately and contemporaneously with any change in the Prime Rate. All
interest payable under the terms of this Note shall be calculated on the basis
of a 360-day year and the actual number of days elapsed.
The unpaid Principal Sum, together with interest thereon at the rate or
rates provided above, shall be due and payable as follows:
(a) Interest only on the unpaid principal amount shall be due
and payable monthly in arrears, commencing December 5, 1999, and continuing on
the same day of each calendar month thereafter to maturity; and
(b) Unless sooner paid, the unpaid Principal Sum, together
with interest accrued and unpaid thereon, shall be due and payable in full on
October 13, 2000.
The fact that the balance hereunder may be reduced to zero from time to
time pursuant to the Loan Agreement will not affect the continuing validity of
this Note or the Loan Agreement, and the balance may be increased to the
Principal Sum after any such reduction to zero.
This Note increases, amends and restates in its entirety that certain
Fourth Amended and Restated Revolving Promissory Note (the "Restated Note") in
the maximum principal amount of Three Million Five Hundred Thousand Dollars
($3,500,000) dated as of September 13, 1999 from the Borrowers in favor of the
Bank. It is expressly agreed that the indebtedness evidenced by the Restated
Note has not been extinguished or discharged hereby. The Borrowers agree that
the execution of this Agreement is not intended to and shall not cause or result
in a novation with respect to the Restated Note. This Note is secured as
provided in the Loan Agreement. All capitalized terms used herein and not
otherwise defined shall have the meanings given to such terms in the Loan
Agreement.
Borrowers irrevocably waive the right to direct the application of any
and all payments at any time hereafter received by Bank from or on behalf of
Borrowers and Borrowers irrevocably agree that Bank shall have the continuing
exclusive right to apply any and all such payments against the then due and
owing obligations of Borrowers as Bank may deem advisable. In the absence of a
specific determination by Bank with respect thereto, all payments shall be
applied in the following order: (a) then due and payable fees and expenses; (b)
then due and payable interest payments and mandatory prepayments; and (c) then
due and payable principal payments and optional prepayments.
Bank is hereby authorized by Borrowers to endorse on Bank's books and
records each Advance made by Bank under this Note and the amount of each payment
or prepayment of principal of each such Advance received by Bank; it being
understood, however, that failure to make any such endorsement (or any error in
notation) shall not affect the obligations of Borrowers with respect to Advances
made hereunder, and payments of principal by Borrowers shall be credited to
Borrowers notwithstanding the failure to make a notation (or any errors in
notation) thereof on such books and records.
The occurrence of any one or more of the following events shall
constitute an event of default (individually, an "Event of Default" and
collectively, the "Events of Default") under the terms of this Note:
(a) The failure of Borrowers to pay to Bank when due any and
all amounts payable by Borrowers to Bank under the terms of this Note; or
(b) The occurrence of an event of default (as defined therein)
under the terms and conditions of any of the other Loan Documents.
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Upon the occurrence of an Event of Default, at the option of Bank, all
amounts payable by Borrowers to Bank under the terms of this Note shall
immediately become due and payable by Borrowers to Bank without notice to
Borrowers or any other person, and Bank shall have all of the rights, powers,
and remedies available under the terms of this Note, any of the other Loan
Documents and all applicable laws. Borrowers and all endorsers, guarantors, and
other parties who may now or in the future be primarily or secondarily liable
for the payment of the indebtedness evidenced by this Note hereby severally
waive presentment, protest and demand, notice of protest, notice of demand and
of dishonor and non-payment of this Note and expressly agree that this Note or
any payment hereunder may be extended from time to time without in any way
affecting the liability of Borrowers, guarantors and endorsers.
Upon the occurrence of an Event of Default, Borrowers hereby authorize
any attorney designated by Bank or any clerk of any court of record to appear
for Borrowers in any court of record and confess judgment without prior hearing
against Borrowers in favor of Bank for and in the amount of the unpaid Principal
Sum, all interest accrued and unpaid thereon, all other amounts payable by
Borrowers to Bank under the terms of this Note or any of the other Loan
Documents, costs of suit, and attorneys' fees of fifteen percent (15%) of the
unpaid Principal Xxx and interest then due hereunder. Borrowers hereby release,
to the extent permitted by applicable law, all errors and all rights of
exemption, appeal, stay of execution, inquisition, and other rights to which
Borrowers may otherwise be entitled under the laws of the United States of
America or of any state or possession of the United States of America now in
force and which may hereafter be enacted. The authority and power to appear for
and enter judgment against Borrowers shall not be exhausted by one or more
exercises thereof or by any imperfect exercise thereof and shall not be
extinguished by any judgment entered pursuant thereto. Such authority may be
exercised on one or more occasions or from time to time in the same or different
jurisdictions as often as Bank shall deem necessary or desirable, for all of
which this Note shall be a sufficient warrant.
Borrowers, jointly and severally, promise to pay all costs and expense
of collection of this Note and to pay all reasonable attorneys' fees incurred in
such collection, whether or not there is a suit or action, or in any suit or
action to collect this Note or in any appeal thereof. Borrowers waive
presentment, demand, protest, notice of protest, notice of dishonor, notice of
nonpayment, and any and all other notices and demands in connection with the
delivery, acceptance, performance default or enforcement of this Note, as well
as any applicable statutes of limitations. No delay by Bank in exercising any
power or right hereunder shall operate as a waiver of any power or right. Time
is of the essence as to all obligations hereunder.
This Note is issued pursuant to the Loan Agreement, which shall govern
the rights and obligations of Borrowers with respect to all obligations
hereunder.
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Borrowers acknowledge and agree that this Note shall be governed by the
laws of the State of Maryland, excluding conflicts of laws principles, even
though for the convenience and at the request of Borrowers, this Note may be
executed elsewhere.
EACH BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF MARYLAND IN ANY ACTION, SUIT, OR
PROCEEDING OF ANY KIND, AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS
AGREEMENT; PROVIDED, HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF
THE COURTS OF MARYLAND, EACH BORROWER ACCEPTS JURISDICTION OF THE COURTS AND
VENUE IN SANTA XXXXX COUNTY, CALIFORNIA. EACH BORROWER AND BANK EACH HEREBY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE
TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY
RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL
INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH PARTY REPRESENTS AND
WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL.
Until such time as the Bank is not committed to extend further credit
to the Borrowers and all Obligations of the Borrowers to the Bank have been
indefeasibly paid in full in cash, and subject to and not in limitation of the
provisions set forth in the next following paragraph below, no Borrower shall
have any right of subrogation (whether contractual, arising under the Bankruptcy
Code or otherwise), reimbursement or contribution from any Borrower or any
guarantor, nor any right of recourse to its security for any of the debts and
obligations of any Borrower which are the subject of this Note. Except as
otherwise expressly permitted by the Financing Agreement, any and all present
and future debts and obligations of any Borrower to any other Borrower are
hereby subordinated to the full payment and performance of all present and
future debts and obligations to the Bank under this Note and the Financing
Agreement and the Loan Documents, provided, however, notwithstanding anything
set forth in this Note to the contrary, prior to the occurrence of a payment
Default, the Borrowers shall be permitted to make payments on account of any of
such present and future debts and obligations from time to time in accordance
with the terms thereof.
Each Borrower further agrees that, if any payment made by any Borrower
or any other person is applied to this Note and is at any time annulled, set
aside, rescinded, invalidated, declared to be fraudulent or preferential or
otherwise required to be refunded or repaid, or the
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proceeds of any property hereafter securing this Note is required to be returned
by the Bank to any Borrower, its estate, trustee, receiver or any other party,
including, without limitation, such Borrower, under any bankruptcy law, state or
federal law, common law or equitable cause, then, to the extent of such payment
or repayment, such Borrower's liability hereunder (and any lien, security
interest or other collateral securing such liability) shall be and remain in
full force and effect, as fully as if such payment had never been made, or, if
prior thereto any such lien, security interest or other collateral hereafter
securing such Borrower's liability hereunder shall have been released or
terminated by virtue of such cancellation or surrender, this Note (and such
lien, security interest or other collateral) shall be reinstated in full force
and effect, and such prior cancellation or surrender shall not diminish,
release, discharge, impair or otherwise affect the obligations of such Borrower
in respect of the amount of such payment (or any lien, security interest or
other collateral securing such obligation).
The JOINT AND SEVERAL obligations of each Borrower under this Note
shall be absolute, irrevocable and unconditional and shall remain in full force
and effect until the outstanding principal of and interest on this Note and all
other Obligations or amounts due hereunder and under the Loan Agreement and the
Loan Documents shall have been indefeasibly paid in full in cash in accordance
with the terms thereof and this Note shall have been canceled.
(SIGNATURES ARE ON THE NEXT PAGE)
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IN WITNESS WHEREOF, Borrowers have caused this Note to be executed
under seal by their duly authorized officers as of the date first written above.
WITNESS/ATTEST: SKY ALLAND RESEARCH, INC.
By: /s/ Xxxxxxx X. Xxxxxx (SEAL)
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
WITNESS/ATTEST: THE DATA GROUP II, INC.
By: /s/ Xxxxxxx X. Xxxxxx (SEAL)
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
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