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FLEET BANK TERM LOAN AGREEMENT
For value received and in further consideration of the granting by Fleet Bank of
Massachusetts, National Association ("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, and Borrower will borrow from
Bank $750,000.00, with interest at Prime + .5% per annum.
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.
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.
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Exhibit 10.7
[Fleet Logo]
March 4, 1999
Xx. Xxxxx Xxxxx
Chief Financial Officer
SilverStream Software, Inc.
Xxx Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Dear Xxxxx:
We are pleased to advise you that Fleet National Bank (the "Bank") has approved
a commitment to extend a new $750,000 Equipment Term Loan Facility to
SilverStream Software, Inc. (the "Borrower"), subject to the terms and
conditions hereinafter set forth.
BORROWER: SilverStream Software, Inc.
AMOUNT: $750,000
TYPE: Equipment Term Loan Facility
PURPOSE: Equipment financing
MATURITY: November 1, 1999 (Draw down period)
REPAYMENT: The balance outstanding at 11/1/99 shall be termed out in 36
equal monthly payments beginning 11/1/99.
INTEREST RATE: Fleet National Bank Prime Rate plus 1/2%, payable monthly in
arrears.
SECURITY: A perfected first lien on all corporate assets (excluding
Intellectual Property)
ADVANCE RATE: Advances will be made at 100% of invoice on approved equipment
(excluding taxes, shipping, software, etc.) upon the submission
to the Bank of invoices and evidence of payment (to be made not
more than 30 days after purchase, except for assets purchased
prior to closing which will be submitted at closing).
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Xx. Xxxxx
Page #2
PAYMENT: The Bank shall be authorized to debit any account
maintained by the Borrower for the payment of interest,
principal and fees when due.
OTHER FEES: The Borrower is responsible for any and all
out-of-pocket expenses incurred by the Bank in
connection with the arrangement, documentation and
closing of this transaction, whether or not the
transaction closes, or any loan is made. These fees
will be limited to UCC search and filing fees.
AFFIRMATIVE COVENANTS: Customary for transactions of this type including, but
not limited to the following:
Borrower shall:
1.) Pay all taxes; comply with all laws; preserve corporate existence;
maintain adequate insurance (on which the Bank shall be named loss
payee); keep property records and books of account, etc.
2.) Maintain the following financial ratios (which will also apply to the
existing indebtedness evidenced by a Commercial Promissory Note.
Letter Agreement and related documentation previously executed.
a.) MINIMUM TANGIBLE NET WORTH -- The Borrower will maintain a
Tangible Net Worth (TNW) of not less than $4,000,000.00 at
all times. TNW shall be defined as Stockholders' Equity
minus Intangible Assets. To be tested quarterly.
b.) MINIMUM LIQUIDITY -- The Borrower will maintain as at the
end of each fiscal quarter of Borrower, a ratio of Net Quick
Assets to Total Current Liabilities, which ratio shall not
be less than 2.00:1. To be tested quarterly. Net Quick
Assets shall be defined as cash, cash-equivalents, readily
marketable securities and receivables (not of appropriate
reserves).
3.) Provide monthly and annual financial statements within 30 and 90 days
respectively of the end of the period. An accounting firm acceptable
to the Bank shall audit the annual financials. Compliance Certificates
shall accompany each financial statement certifying that the Borrower
is in compliance with the financial covenants on all other terms of
the agreement.
4.) Maintain Fleet National Bank as its primary bank of account.
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Xx. Xxxxx
Page #3
NEGATIVE COVENANTS: Customary for transactions of this type including, but not
limited to the following:
Borrower shall not:
1.) Materially change the nature of its business.
2.) Pledge or encumber any of its assets to third parties.
3.) Assume or issue guarantees or become contingently liable in support of
third party transactions excluding those currently existing.
4.) Sell, lease, assign or otherwise dispose of any of its assets other
than in the ordinary course of business.
5.) Create or assume new indebtedness.
6.) Pay any dividends or make distributions.
7.) Complete transactions with affiliates, other than those done on an
arms length basis, without prior consent.
8.) Merge or make an acquisition without prior consent of the Bank.
EVENTS OF DEFAULT: Customary for transactions of this type including, but not
limited to;
1.) Non-payment of principal, interest or fees.
2.) Any representation shall prove untrue in any material respect.
3.) Any violation of any covenant of the Letter Agreement or any other
related document.
4.) Insolvency, bankruptcy or judgment in excess of $100,000.
CONDITIONS PRECEDENT TO LENDING: Customary for transactions of this type
including, but not limited to the following:
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Xx. Xxxxx
Page #4
1) Completion of documentation satisfactory to the Bank (including UCC
searches and the execution of any required leases). Related documents
include the following:
A) Commercial Promissory Note
B) Term Loan Agreement
C) Landlord's Waiver
D) UCC-1 Financing Statements
E) Inventory and Accounts Receivable Security Agreement
F) Supplemental Security Agreement Security Interest in Goods and
Chattels.
2) Certified copy of all resolutions and documents evidencing necessary
corporate action including board minutes, certificate of incumbency,
corporate resolution, certificate of good standing and a certified copy
of the Borrower's by-laws and charter documents.
3.) No material adverse changes in the condition (financial or otherwise),
operations, properties, assets, liabilities, or earnings of the
Borrower since the date of its most recent company prepared statement.
3) The terms and the commitment are subject to the condition that there be
no material change in governmental regulations or monetary policies,
including any change relating to capital adequacy of the Bank which
would have the effect of reducing the rate of return on the capital of
the Bank below the level contemplated hereby.
Xxxxx, I am glad to present this commitment and I look forward to further
expanding our relationship in the future. Please do not hesitate to call if you
have questions or comments.
Sincerely,
/s/ Xxxx X. Xxxxxx
------------------------
Xxxx X. Xxxxxx
Assistant Vice President
High Technology Division
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2.3 FINANCIAL STATUS. All financial statements 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 OF 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:__________________________________-_____________________________
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 the 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
_____ and 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 as 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 monthly
statements prepared by Borrower within thirty days of the close of each month
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
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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, (d) Borrower
shall furnish a covenant compliance certificate with monthly financial
statements.
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.
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 statutes, 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
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faith; (ii) of mechanics or materialmen in 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 _______% of its
Current Assets; permit its net Working Capital (excess of Current Assets over
Current Liabilities) to be less than $ N/A 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.)
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
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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 $100,000.00 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
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 Xxx Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
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MA 01803 and (b) if to Bank, to 0 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention
Xxxxx Xxxxxxxx. 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:
Liquidity Covenant: The Borrower will maintain as at the end of each
fiscal quarter of Borrower, a ratio of Net Quick Assets to Total Current
Liabilities, which ratio shall not be less than 2.00 to 1. To be tested
quarterly.
Capital Base: The Borrower, will maintain, as at the end of each month
of the Borrower, consolidated Capital Base of not less than $4,000,000.00.
"Net Quick Assets" shall be defined as cash, cash-equivalents,
readily-marketable securities and receivables (net of appropriate reserves).
"Capital Base" shall be defined as the sum of (i) the consolidated
Tangible Net Worth of Borrower.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
duly executed under seal this 1st day of March, 1999, at Boston, Massachusetts.
SilverStream Software
(Name of Borrower)
By /s/ Xxxxx X. Xxxxx
Hereunto duly authorized
Title: CFO
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ATTEST:
/s/ Xxxx X. Xxxxx By_____________________________
Hereunto duly authorized
Title:
Fleet Bank of Massachusetts,
National Association
By_____________________________
Hereunto duly authorized
Title:
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Xxxxx Xxxx Xxxxxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx _______________ __, 19__
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 February, 1999, and each
subsequent payment due on the corresponding day of each calendar
month/calendar quarter/__________ thereafter.
/ / 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.
REPAYMENT 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 36 consecutive monthly installments, of which each
but the last shall be 1/36th of the principal amount outstanding on
11/1/99 and the final of which shall be equal to the then unpaid
principal balance of this Notice plus all accrued and unpaid interest
thereon. The first
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such monthly installment shall be due on the first day of November,
1999 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 October 1, 2002.
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
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 Xxxxx
_______________________________________________
Name Title
By:_______________________________________________
Name Title
Address: Xxx Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
__________________________________________________
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 at 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
representative 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: Term Loan Agreement dated ________________.
Inventory and Accounts Receivable Security Agreement dated ______________.
Supplementary Security Agreement, Security Interest in Goods and Chattels dated
______________, Certificate of Authority dated _______________. 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
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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 hold 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.
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 of
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 me or any
endorser or guarantor shall not release any other person obligated on account of
this Note. Each reference is in this Note to me, any endorser, 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 endorser and guarantor of this Note submit to the jurisdiction of the
courts of the Commonwealth of Massachusetts for all purposes with
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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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