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Exhibit 10.9
FLEET BANK TERM LOAN AGREEMENT
For value received and in further consideration of the granting by Fleet
National Bank ("Bank") to the undersigned ("Borrower") of a line of credit or of
a loan or loans thereunder (all such loans, together with any existing loans
from Bank to Borrower, being hereinafter collectively and separately referred to
as the "Loan"), Borrower represents and warrants to and agrees with Bank as
follows ("Agreement"):
SECTION 1. THE LOAN.
1.1 AMOUNT. Bank will lend to Borrower, the Borrower will borrow
from Bank $750,000 with interest at Prime + 1/2% per annum. (As detailed in the
Letter Agreement of even date, the Borrower also has a fixed rate option.)
1.2 EVIDENCE OF LOAN. At the option of Bank, the Loan and the
terms of repayment thereof, including the rate of interest, may be evidenced by
a note or notes, or by Bank's books and records.
1.3 SECURITY AND/OR GUARANTY. The payment of the Loan may at any
time or from time to time be secured and/or guaranteed wholly or partly separate
and apart from this Agreement, but whether or not secured and/or guaranteed, all
monies and other property at any time in the possession of Bank which Borrower
either owns or has the permission of the owner thereof to pledge with or
otherwise hypothecate to Bank, including, but not limited to, any deposits,
balances of deposits or other sums at any time credited by or due from Bank,
shall at all times be collateral security for all of the liabilities,
obligations and undertakings of Borrower to Bank, direct or indirect, absolute
or contingent, now existing or hereafter arising or acquired including, but not
limited to, the payment of the Loan.
SECTION 2. WARRANTIES AND REPRESENTATIONS. Borrower hereby represents
and warrants to Bank (which representations and warranties will survive the
making of the Loan) that:
2.1 CORPORATE EXISTENCE. Borrower, if a corporation, is and will
continue to be, a corporation duly incorporated and validly existing under the
laws of the State of __________________ and duly licensed or qualified as a
foreign corporation in all states wherein the nature of its property owned or
business transacted by it makes such licensing or qualification necessary.
Borrower has obtained all required permits, authorizations and licenses, without
unusual restrictions or limitations, to conduct the business in which Borrower
is presently engaged, all of which are in full force and effect.
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2.2 CORPORATE AUTHORITY AND POWER. If Borrower is a corporation,
the execution, delivery and performance of this Agreement, any note or security
agreement or any other instrument or document at any time required in connection
with the Loan are within the corporate powers of Borrower, and not in
contravention of law, the Articles of Organization or By-Laws of Borrower or any
amendment thereof, or of any indenture, agreement or undertaking to which
Borrower is a party or may otherwise be bound, and each such instrument and
document represents a valid and binding obligation of Borrower and is fully
enforceable according to its terms. Borrower will, at the request of Bank at any
time and from time to time, furnish Bank with the opinion of counsel for
Borrower with respect to any or all of the foregoing or other matters, such
opinion to be in substance and form satisfactory to Bank.
2.3 FINANCIAL STATUS. All financial statement and other statements
heretofore or hereafter given by Borrower to Bank in respect hereof are or will
be true and correct, subject to any limitation stated therein, consistent with
any prior statements furnished to Bank, and prepared in accordance with
generally accepted accounting principles to represent fairly the condition of
Borrower at the date thereof.
2.4 LITIGATION. There is not now pending or threatened against
Borrower any action or other proceedings or any claim in which Borrower has any
monetary or other proprietary interest nor do any of the executive or managing
personnel of Borrower know of any facts which may give rise to any such
litigation, proceeding or claim, except: _______________________________________
________________________________________________________________________________
2.5 SUBSIDIARIES AFFILIATES. If Borrower is a corporation it (a)
owns 100% or N/A % of the issued and outstanding stock of the following
subsidiaries and/or affiliates: ________________________________________________
________________________________________________________________________________
(b) such stock shall be free and clear of any pledges, liens, or other
encumbrances.
2.6 EVENTS OF DEFAULT. No event of default specified in Section
5.0 hereof, and no event which, with the lapse of time or notice, would become
such an event of default, has occurred and is continuing.
2.7 TITLE TO PROPERTY. Borrower has good and marketable title to
all property in which Borrower has given or has agreed to give a security
interest to Bank and such property is or will be free of all encumbrances
except: ________________________________________________________________________
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2.8 TAXES. Borrower has filed all tax returns required to be
filed, has paid all taxes due thereon and has provided adequate reserves for
payment of any tax which is being contested.
SECTION 3. AFFIRMATIVE COVENANTS. Borrower agrees that until payment in
full of the Loan and performance of all of its other obligations under this
Agreement, Borrower will, unless Bank otherwise consents in writing, comply with
the following:
3.1 COMPENSATING BALANCES. Bank shall be Borrower's main bank of
deposit and Borrower shall maintain average aggregate collected balances in its
deposit account or accounts with Bank of not less than N/A per centum
(_________%) of the outstanding unpaid balance of the Loan or Loans; such
collected balances to be calculated net of any balances required to support
demand deposit account activity costs. Balances shall be averaged _____________
________________________________________________________________________________
3.2 COMMITMENT FEE. Subject to the terms of this agreement Bank
commits itself until ___________ 19__ to lend to Borrower at any time or from
time to time a sum or sums in the aggregate amount of $ N/A and Borrower agrees
to pay to Bank monthly in arrears a fee for Bank's said commitment in the amount
of ___________ per centum (_________%) of the unused portion thereof so long as
the same be outstanding. Borrower shall also, in addition to requirements of
Paragraph 3.1 above, maintain collected balances in its deposit account or
accounts with Banks of not less than ____________ per centum (_________%) of the
unused portion of said commitment. Repayments on account of the Loan shall not
operate to increase the unused portion of said commitment, except in the case of
Revolving Loans.
3.3 FINANCIAL STATEMENTS. (a) Borrower will furnish to Bank
quarterly statements prepared by Borrower within forty-five days of the close of
each quarter, and within ninety days after the close of each fiscal year, an
annual audit prepared by the equity method and certified by public accountants
selected by Borrower and approved by Bank, together with a certificate by such
accountants that at such audit date Borrower was acting in compliance with the
terms of this Agreement. If Borrower is a corporation, consolidated and
consolidating statements shall be furnished for Borrower and all subsidiary
corporations, (b) Borrower shall indicate on said statements all guarantees made
by it and (c) Borrower will upon request permit a representative of Bank to
inspect and make copies of Borrower's books and records at all reasonable times.
3.4 INSURANCE. Borrower will maintain adequate fire insurance with
extended coverage, public liability and other insurance as Bank may reasonably
require as consistent with sound business practice and with companies
satisfactory to Bank, which policies will show the Bank as a loss payee.
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3.5 TAXES AND OTHER LIENS. Borrower will comply with all statutes
and government regulations and pay all taxes, assessments, governmental charges
or levies, or claims for labor, supplies, rent and other obligations made
against it which, if unpaid, might become a lien or charge against Borrower or
on its property, except liabilities being contested in good faith and against
which if requested by Bank, Borrower will set up reserves satisfactory to Bank.
3.6 MAINTENANCE OF EXISTENCE. If Borrower is a corporation, it
will maintain its existence and comply with all applicable statues, rules and
regulations, and maintain its properties in good operating condition, and
continue to conduct its business as presently conducted.
3.7 NOTICE OF DEFAULT. Within three (3) business days of becoming
aware of (a) the existence of any condition or event which constitutes a default
under Section 5.0 hereof, or (b) the existence of any condition or event which
with notice or the passage of time, will constitute a default under Section 5.0
hereof, Borrower will provide Bank with written notice specifying the nature and
period of existence thereof and what action Borrower is taking or proposes to
take with respect thereto.
3.8 USE OF PROCEEDS. Borrower shall use the proceeds of the Loan
hereunder for general commercial purposes, provided that no part of such
proceeds will be used, for the purpose of purchasing or carrying any "margin
security" as such term is defined in Regulation U of the Board of Governors of
the Federal Reserve System.
3.9 FURTHER ASSURANCES. Borrower will execute and deliver to Bank
any writings and do all things necessary, effectual or reasonably requested by
Bank to carry into effect the provisions and intent of this Agreement.
SECTION 4. NEGATIVE COVENANTS. Without the prior written approval of
Bank, Borrower will not:
4.1 CONSOLIDATION, MERGER OR ACQUISITION. Participate in any
merger or consolidation or alter or amend the capital structure of Borrower
including, but not limited to, the issuance of additional stock, or make any
acquisition of the business of another.
4.2 DIVIDENDS. Pay any dividends, including stock dividends, or
make any distributions, in cash or otherwise, including splits of any kind, to
any officer, stockholder or beneficial owner of Borrower other than salaries.
4.3 ENCUMBRANCES. Mortgage, pledge or otherwise encumber any
property of Borrower or permit any lien to exist thereon except liens (i) for
taxes not delinquent or being contested in good faith; (ii) of mechanics or
materialmen in
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respect of obligations not overdue or being contested in good faith; (iii)
resulting from security deposits made in the ordinary course of business; and
(iv) in favor of Bank.
4.4 INVESTMENTS. Invest any assets of Borrower in securities other
than obligations of the United States of America.
4.5 DISPOSITION OF ASSETS, GUARANTEES, LOANS, ADVANCES. Sell,
transfer or assign any assets of Borrower other than in the ordinary course of
business or, except as hereinafter specifically permitted, (i) sell or transfer
or assign any of Borrower's accounts receivable with or without recourse; (ii)
guarantee or become surety for the obligations of any person, firm or
corporation, or (iii) make any loans or advances except:______________________.
4.6 WORKING CAPITAL. Permit its inventory to exceed N/A % of its
Current Assets; permits its net Working Capital (excess of Current Assets over
Current Liabilities) to be less than $______________ for the current fiscal year
and for each subsequent fiscal year to be less than the amount for the prior
fiscal year plus __________% of Borrower's net income earned for the prior year,
after provision for taxes, provided that there shall be no reduction in the
required working capital for losses; or permit its Current Assets to be less
than ____________% of its Current Liabilities, Current Assets and Current
Liabilities to be computed in accordance with customary accounting practice
except that Current Liabilities shall in any event include all rentals and other
payments due within one year under any lease or rental of personal property.
4.7 LIABILITIES. Permit its total short and long term liabilities
including borrowings to exceed _________% of Borrower's tangible net worth, said
percentage to decrease [N/A] % per year for the term of the Loan.
4.8 FIXED ASSETS. Make, or incur any obligation to make, any
expenditures in any fiscal year for fixed assets by purchase or lease agreement
the aggregate fair market value of which assets is in excess of $[N/A] .
4.9 COMPENSATION. If Borrower is a corporation, pay to its
officers and directors aggregate compensation in any fiscal year which exceeds
$[N/A] .
4.10 EMPLOYEE RETIREMENT INVESTMENT SECURITY ACT OF 1974 AS AMENDED
("ERISA"). PERMIT ANY PENSION PLAN TO: (a) engage in any "prohibited
transaction"; (b) fail to report to Bank a "reportable event"; (c) incur any
"accumulated funding deficiency"; or (d) terminate its existence at any time in
a manner which could result in the imposition of a lien on the property of the
Borrower. (The quoted terms are defined in Sections 2003(c), 302, and 4003,
respectively, of ERISA).
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SECTION 5. DEFAULTS. If any one or more of the following "Events of
Default" shall occur at any time, BANK SHALL HAVE THE RIGHT TO DECLARE ANY OR
ALL LIABILITIES OR OBLIGATIONS OF BORROWER TO BANK IMMEDIATELY DUE AND PAYABLE
WITHOUT NOTICE OR DEMAND:
5.1 Any warranty, representation or statement made or furnished to
Bank by or on behalf of Borrower or any guarantor or surety for Borrower was in
any material respect false when made or furnished;
5.2 A failure to pay or perform when due any obligation, liability
or covenant of Borrower or of any guarantor or surety for Borrower, under this
loan agreement or any other indebtedness or obligation for borrowed money, or if
such indebtedness or obligation shall be accelerated, or if there exists any
event of default under any such instrument, document or agreement evidencing or
securing such indebtedness or obligation, including, but not limited to, failure
to perform the terms of this Agreement or of the note or notes evidencing the
Loan;
5.3 The commencement of any proceeding under any bankruptcy or
insolvency laws by or against Borrower, the appointment of a trustee, receiver,
or custodian and, if any such proceeding is involuntary such proceeding has not
been dismissed and all trustees, receivers, or custodians discharged within 30
days of its commencement or their appointment;
5.4 The service upon Bank of a writ in which Bank is named as
trustee or Borrower or any guarantor or surety for Borrower;
5.5 If Borrower or any guarantor or surety for Borrower is a
corporation, trust or partnership, the liquidation, termination or dissolution
of any such organization or its ceasing to carry on actively its present
business;
5.6 The death of Borrower or any guarantors or surety for
Borrower, and if Borrower or any guarantor or surety for Borrower is a
partnership, the death of any partner; or
5.7 A judgment or judgments for the payment of money aggregating
in excess of $100,000 is outstanding against Borrower or any guarantor or surety
for Borrower and any one of such judgments has been outstanding for more than
thirty (30) days from the date of its entry and has not been discharged in full
or stayed.
SECTION 6. MISCELLANEOUS.
6.1 OTHER AGREEMENTS. This Agreement is supplementary to each and
every other agreement between Borrower and Bank and shall not be so construed as
to limit or otherwise derogate from any of the rights or remedies of Bank or any
of
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the liabilities, obligations or undertakings of Borrower under any such
agreement, nor shall any contemporaneous or subsequent agreement between
Borrower and Bank be construed to limit or otherwise derogate from any of the
rights or remedies of Bank or any of the liabilities, obligations or
undertakings of Borrower hereunder unless such other agreement specifically
refers to this Agreement and expressly so provides. This Agreement and the
covenants and agreements herein contained shall continue in full force and
effect and shall be applicable not only with respect to the Loan, but also to
all other obligations, liabilities and undertakings of Borrower to Bank whether
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising or acquired, until all such obligations, liabilities and
undertakings have been paid or otherwise satisfied in full.
6.2 WAIVERS. No delay or omission on the part of Bank in
exercising any right hereunder shall operate as a waiver of such right or any
other right and waiver on any one or more occasions shall not be construed as a
bar to or waiver of any right or remedy of Bank on any future occasion.
6.3 EXPENSES. Borrower will pay or reimburse Bank for all
reasonable expenses, including attorneys' fees, which Bank may in any way incur
in connection with this agreement or any other agreement between Borrower and
Bank or with any Loan or which result from any claim or action by any third
person against Bank which would not have been asserted were it not for Bank's
relationship with Borrower hereunder or otherwise.
6.4 NOTICES. All notices and other communications hereunder shall
be in writing, except as otherwise provided in this Agreement, and shall be hand
delivered or mailed by first-class mail, postage prepaid (in which event notice
shall be deemed to have been given when so delivered or deposited in the mail),
addressed (a) if to Borrower, to 0 XXXXXX XXXX, XXXXXXXXX, XX 00000 and (b) if
to Bank, to 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: XXXXXX X.
XXXXXX. The address of any party hereto for such demands, notices and other
communications may be changed by giving notice in writing at any time to the
other party hereto.
6.5 MASSACHUSETTS LAW. This Agreement is intended to take effect
as a sealed instrument and shall be governed by and construed according to the
laws of the Commonwealth of Massachusetts.
6.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
Borrower's legal representatives, successors and assigns and shall inure to the
benefit of Bank's successors and assigns.
6.7 ADDITIONAL PROVISIONS. Borrower furthermore agrees to the
following additional provisions: THE TERMS AND CONDITIONS CONTAINED IN THE
LETTER AGREEMENT OF EVEN DATE ARE INCORPORATED HEREIN.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
duly executed under seal this __________ day of _____________________, 19_____
at Boston, Massachusetts.
SilverStream Software Inc.
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(Name of Borrower)
By: /s/ Xxxxx Xxxx
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Hereunto duly authorized
Title: CEO
ATTEST:
/s/ Xxxx Xxxxxx By:
------------------------------ -----------------------------
Hereunto duly authorized
Title:
Fleet National Bank
By:
-----------------------------
Hereunto duly authorized
Title:
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FLEET BANK Commercial Promissory Note
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Boston, Massachusetts November 5, 1996
FOR VALUE RECEIVED, I, the undersigned, promise to pay to the order of Fleet
National Bank (with any subsequent holder referred to in this note as "you") at
any of your offices, the sum of Seven-Hundred, Fifty-Thousand and 00/100 DOLLARS
($750,000.00) with interest in accordance with the provisions below which are
marked.
INTEREST RATE
I will pay interest on the unpaid principal balance of this Note as follows, but
in no event will interest exceed the maximum rate permitted by law;
[X] FLOATING RATE. At the aggregate of the Bank's Prime Rate as the Bank
announces it from time to time, plus one-half percent per annum. Changes in the
Bank's Prime Rate as the Bank announces it from time to time are to take effect,
for the purposes of the determination of interest on this Note, when made
effective generally to loans by the Bank.
[ ] FIXED RATE. At the rate of _______ percent per annum.
[ ] DISCOUNT. Interest to maturity has been deducted from the proceeds of this
Note. Interest at the rate of ______ percent per annum shall be paid on any
amount not paid when due hereunder until that amount and any such interest are
so paid.
INTEREST PAYMENTS
I will pay interest at the above rate as follows:
|X| PERIODICALLY Monthly/Quarterly/_____________. In arrears, with the first
such payment due on the 1st day of December, 1996 and each subsequent payment
due on the corresponding day of each calendar month/calendar quarter/___________
thereafter.
[X] AT MATURITY. At the maturity of this Note.
[ ] INTEREST INCLUDED IN REPAYMENTS. Interest is included in the payment(s) to
be made pursuant to the Repayment Provisions below.
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PAYMENT PROVISIONS
In addition to any interest payments to be made as indicated above, I will pay
you the amount stated above as follows:
[ ] ON DEMAND. On demand by you.
[ ] PAYMENTS TO BE MADE UNTIL DEMAND. On demand by you, with payments
of $____________ each to be made monthly unless and until such demand is made.
The first such payments shall be due on the _______ day of _______, 19_____ (if
you have not made demand before then) and unless and until you make demand, each
subsequent payment shall be due on the corresponding day of each month
thereafter.
[ ] TIME. _____________ days after the date hereof on _______________, 19___.
[X] INSTALLMENTS. In 30 consecutive monthly installments, of which each but
the last shall be $ * and the final of which shall be equal to the then unpaid
principal balance of this Note plus all accrued and unpaid interest thereon. The
first such monthly installment shall be due on the first day of April, 1997 and
each subsequent installment shall be due on the corresponding day of each month
thereafter, with the balance of all principal and interest due on September 1,
1999.
* 1/30th of the principal amount.
PREPAYMENT. I will be entitled to prepay this note as follows:
LATE CHARGES. If the entire amount of any required principal and/or interest is
not paid in full within ten (10) days after the same is due, the Borrower shall
pay to the Bank a late fee equal to five percent (5%) of the required payment
provided that such late fee shall be reduced to three percent (3%) of any
required principal and interest payment that is not paid within fifteen (15)
days of the date it is due if this Agreement is secured by a mortgage on an
owner-occupied residence, 1-4 units.
APPLICATION OF PAYMENTS. Any payments you receive from me will be applied first
to any accrued and unpaid interest and then to the unpaid principal balance of
this Note. If any payment under this Note becomes due and payable on the day
upon which your office is legally closed to business, the due date shall be
extended to the next succeeding business day and interest shall be payable
during such extension at the rate stated above.
EACH BORROWER AND ENDORSER LIABLE. If more than one borrower has signed below,
each of us has made all of the promises contained in this Note, and we are
jointly and severally liable for all obligations on this Note. If one or more
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endorser has signed below, each endorser agrees to all terms of this Note,
including without limitation the provisions relating to Security.
This Note is subject to the terms, provisions and conditions set forth
on the reverse side of this page. Signed as an instrument under seal on the date
stated above.
BORROWER(S)
Silverstream Software, Inc.
---------------------------------
Name of Borrower
By: /s/ Xxxxx Xxxx
-----------------------------
Name : Xxxxx Xxxx
Title: CEO
By:
-----------------------------
Name
Title
Address:
------------------------
------------------------
---------------------------------
Name of Borrower
By:
-----------------------------
Name
Title
Address:
------------------------
------------------------
ENDORSER(S):
---------------------------------
---------------------------------
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EVENTS OF DEFAULT. Upon the occurrence of any one or more of the
following Events of Default, the entire unpaid principal balance of this Note
and all unpaid accrued interest hereunder shall become immediately due and
payable on your option and without notice or demand. In addition, at your option
and without notice or demand, the occurrence of any such Event of Default shall
also constitute a default under all agreements between you and me as well as of
all instruments and papers that I have given to you. Events of Default are:
(a) my failure to pay when due (or upon demand, if payable on
demand) any amount due on this Note or any other amount I owe you; (b) my
failure promptly, punctually, and faithfully to perform any other obligation or
discharge any liability of mine to you; (c) your determination that any
representation or warranty I made to you in any document, instrument, agreement
or paper was not true or accurate when given; (d) the occurrence of any event of
default under any agreement between you and me or under any instrument or paper
I have given to you notwithstanding that you may not have exercised your rights
upon default under any such other agreement, instrument or paper; (e) any act
by, against, or relating to me or my property or assets, which act constitutes
the application for, consent to, or sufferance of, the appointment of a
receiver, trustee, or other person, pursuant to court action or otherwise over
all or any part of my property, the granting of any trust mortgage or execution
of an assignment for the benefit of my creditors or the occurrence of any other
voluntary or involuntary liquidation or extension of debt agreement for me; my
written admission of my inability to pay my debts as they mature; the filing of
any complaint, application, or petition by or against me initiating any matter
in which I am or may be granted any relief from my debts pursuant to the Federal
Bankruptcy Code or pursuant to any other insolvency statute or procedure; my
offering by or entering into any composition, extension, or any other
arrangement seeking relief or extension for my debts or any other judicial or
non-judicial proceeding or agreement by, against, or including me which seeks or
intends to accomplish a reorganization or arrangement with creditors; (f) the
imposition of any lien upon my assets or the entry of any judgment against me,
which lien is not discharged, or judgment appealed from or satisfied, within
fifteen (15) days after its imposition or entry; (g) any material adverse change
in my assets, liabilities, property, business or condition, financial or
otherwise; (h) the occurrence of any event or circumstance with respect to me
such that you deem yourself to be insecure; (i) my death, termination of
existence, dissolution, winding up, or liquidation; (j) the occurrence of any of
the foregoing Events of Default with respect to any guarantor or endorser to you
of my liabilities to you, as if such guarantor or endorser were a borrower who
signed this Note.
LOAN DOCUMENTS; SECURITY. The following loan documents and security
instruments are incorporated herein by reference with the same force and effect
as if set forth herein in full: Letter Agreement dated November 5, 1996;
Inventory and Accounts Receivable Security Agreement dated 11/5/96;
Supplementary Security Agreement, Security Interest in Goods and Chattels dated
11/5/96; Term Loan
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Agreement dated 11/5/96. The execution, endorsement or guaranty of this Note
constitutes a confirmation by each person that any security interest listed
above which was given to you before the date hereof shall continue in effect as
security for this Note. In addition to the foregoing, any and all of the
deposits or other sums at any time credited by or due from you to me or to any
endorser or guarantor of this Note, and any cash, securities, instruments, or
other property of mine or of such endorser or guarantor in your possession,
whether for safekeeping, or otherwise, shall at all times constitute security
for this Note and for any and all of my liabilities to you including, without
limitation, the liability evidenced hereby, and may be applied or set off by you
against such liabilities at any time whether or not such liabilities are then
due and whether or not other collateral is available to you.
COSTS AND EXPENSES. I and each endorser and guarantor of this Note,
will pay all costs and expenses, including, without limitation reasonable
attorneys' fees and all expenses and disbursements of counsel, in connection
with the protection or enforcement of any of your rights against me or any such
endorser and guarantor and against any collateral given to you to secure this
Note or any other of my liabilities or of such endorser and guarantor to you
(whether or not suit is instituted by or against you).
ASSIGNABILITY BY YOU. You may assign and transfer this Note to any
person, firm or corporation and deliver to the assignee any collateral or
security interest you held in connection with this Note. In the event of such
assignment, you will have no further responsibility or liability with respect to
such collateral or security interest, and the terms of this Note and any related
documents shall inure to the benefit of your assignee and its successors. This
Note shall be binding upon me and each endorser and guarantor hereof and upon my
and their respective heirs, successors, assigns, and representatives, and shall
inure to the benefit of you and your successors and endorsees.
SEVERABILITY. If any provision of this Note is deemed by any court
having jurisdiction thereof to be invalid or unenforceable, the other provisions
of this Note shall remain in full force and effect. If any provision of this
Note is deemed by any such court to be unenforceable because such provision is
too broad in scope, such provision shall be construed to be limited in scope to
the extent such court shall deem necessary to make it enforceable. If any
provision is deemed inapplicable by any such court to any person or
circumstances, it shall nevertheless be construed to apply to all other persons
and circumstances.
WAIVER. No delay or omission by you in exercising or enforcing any of
your powers, rights, privileges, remedies, or discretions hereunder shall
operate as a waiver thereof on that occasion nor on any other occasion. No
waiver of any default hereunder shall operate as a waiver of any other default
hereunder, nor as a continuing waiver.
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ENDORSEMENT. Each endorser, jointly and severally if more than one,
unconditionally guarantees prompt payment when due, by acceleration or otherwise
of this Note, regardless of its genuineness, validity, regularity or
enforceability and waives any right to require you to proceed against the
Borrower or any collateral which you might have been granted to secure any
endorser's liabilities under this Note.
PRESENTMENT, EXTENSION. I and each endorser and guarantor of this Note
respectively waive presentment, demand, notices, and protest, and also waive any
delay on the part of the holder hereof. Each assents to any extension or other
indulgence (including, without limitation, the release of any other party to
this Note or the release or substitution of collateral) which you permit me or
any such endorser or guarantor with respect to this Note or any collateral given
to secure this Note and any other liability of mine or such endorser or
guarantor to you.
MISCELLANEOUS. My liabilities and those of any endorser or guarantor of
this Note are joint and several; provided, however, your release of one or any
endorser or guarantor shall not release any other person obligated on account of
this Note. Each reference in this Note to me, any endorsor, and any guarantor,
is to such person individually and also to all such persons jointly. No person
obligated on account of this Note may seek contribution from any other person
also obligated unless and until all liabilities to you of the person from whom
contribution is sought have been satisfied in full.
I and each endorser and guarantor of this Note authorize you to
complete this Note if delivered in incomplete form, in any respect.
This Note is delivered to you at one of your offices in Massachusetts
and shall be governed by the laws of the Commonwealth of Massachusetts. I and
each endorsor and guarantor of this Note submit to the jurisdiction of the
courts of the Commonwealth of Massachusetts for all purposes with respect to
this Note, any collateral given to secure their respective liabilities to you or
their respective liabilities to you or their respective relationships with you.
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