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EXHIBIT 10.7
PROMISSORY NOTE
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Principal Loan Date Maturity Loan No Call Collateral Account Officer Initials
$750,000.00 12-19-1997 04-30-1999 19 365 9476051478 12619
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References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
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Borrower: Webtrends Corporation Lender: U. S. BANK NATIONAL ASSOCIATION
000 XX Xxxxxxxx Xxx 0000 XXXXXXXXX XXXXXXX XXXXXXXX
Xxxxxxxx, XX 00000 PL-7 OREGON COMMERCIAL LOAN SERVICING
556 S. W. OAK
PORTLAND, OR 97204
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Principal Amount: $750,000.00 Initial Rate: 8.750% Date of Note: December 19, 1997
PROMISE TO PAY. Webtrends Corporation ("Borrower") promises to pay to U. S. BANK
NATIONAL ASSOCIATION ("Lender"), or order, in lawful money of the United States
of America, the principal amount of Seven Hundred Fifty Thousand & 00/100
Dollars ($750,000.00) or so much as may be outstanding, together with interest
on the unpaid outstanding principal balance of each advance. Interest shall be
calculated from the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in one payment of all outstanding principal
plus all accrued unpaid interest on April 30, 1999. In addition, Xxxxxxxx will
pay regular monthly payments of accrued unpaid interest beginning February 5,
1998, and all subsequent interest payments are due on the same day of each month
after that. The annual interest rate for this Note is computed on a 365/360
basis; that is, by applying the ratio of the annual interest rate over a year of
360 days, multiplied by the outstanding principal balance, multiplied by the
actual number of days the principal balance is outstanding. Borrower will pay
Lender at Xxxxxx's address shown above or at such other place as Lender may
designate in writing. Unless otherwise agreed or required by applicable law,
payments will be applied first to accrued unpaid interest, then to principal,
and any remaining amount to any unpaid collection costs and late charges.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an index which is the Lender's Prime Rate. This
is the rate of interest which Lender from time to time establishes as its Prime
Rate and is not, for example, the lowest rate of interest which Lender collects
from any borrower or class of borrowers (the "Index"). The interest rate shall
be adjusted without notice effective on the day Lender's prime rate changes.
Lender will tell Borrower the current index rate upon Xxxxxxxx's request.
Borrower understands that Lender may make loans based on other rates as well.
The interest rate change will not occur more often than each Day. The index
currently is 8.500% per annum. The interest rate to be applied to the unpaid
principal balance of this Note will be of a rate of 0.250 percentage points over
the index, resulting in an initial rate of 8.750% per annum.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed
earlier than it is due. Early payments will not, unless agreed to by Xxxxxx in
writing, relieve Xxxxxxxx of Xxxxxxxx's obligation to continue to make payments
of accrued unpaid interest. Rather, they will reduce the principal balance due.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform when
due any other term, obligation, covenant, or condition contained in this Note or
any agreement related to this Note, or in any other agreement or loan Borrower
has with Lender. (c) Any representation or statement made or furnished to Lender
by Borrower or on Xxxxxxxx's behalf is false or misleading in any material
respect either now or at the time made or furnished. (x) Xxxxxxxx becomes
insolvent, a receiver is appointed for any part of Xxxxxxxx's property, Xxxxxxxx
makes an assignment for the benefit of creditors, or any proceeding is commenced
either by Borrower or against Borrower under any bankruptcy or insolvency laws.
(e) Any creditor tries to take any of Xxxxxxxx's property on or in which Xxxxxx
has a lien or security interest. This includes a garnishment of any of
Xxxxxxxx's accounts with Xxxxxx. (f) Any guarantor dies or any of the other
events described in this default section occurs with respect to any guarantor of
this Note. (g) A material adverse change occurs in Borrower's financial
condition, or Xxxxxx believes the prospect of payment or performance of the
indebtedness is impaired. (h) Lender in good xxxxx xxxxx itself insecure.
LENDER'S RIGHTS. Upon default, Xxxxxx may declare the entire unpaid principal
balance an this Note and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. Upon default, including failure
to pay upon
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PROMISSORY NOTE
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final maturity, Lender, at its option, may also, if permitted under applicable
law, increase the variable interest rate on this Note to 5.250 percentage points
over the Index. The interest rate will not exceed the maximum rate permitted by
applicable law. Lender may hire or pay someone else to help collect this Note if
Borrower does not pay. Xxxxxxxx also will pay Lender that amount. This includes,
subject to any limits under applicable law, Xxxxxx's attorneys' fees and
Xxxxxx's legal expenses whether or not there is a lawsuit, including attorneys'
fees and legal expenses for bankruptcy proceedings (including efforts to modify
or vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. If not prohibited by applicable law, Xxxxxxxx
also will pay any court costs, in addition to all other sums provided by law.
This Note has been delivered to Lender and accepted by Lender in the State of
Oregon. If there is a lawsuit, Xxxxxxxx agrees upon Xxxxxx's request to submit
to the jurisdiction of the courts of Multnomah County, the State of Oregon.
Subject to the provisions on arbitration, this Note shall be governed by and
construed in accordance with the laws of the State of Oregon.
RIGHT OF SETOFF. Borrower grants to Lender a contractual possessory security
interest in, and hereby assigns, conveys, delivers, pledges, and transfers to
Lender all Borrower's right, title and interest in and to, Xxxxxxxx's accounts
with Lender (whether checking, savings, or some other account), including
without limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all IRA and Xxxxx accounts,
and all trust accounts for which the grant of a security interest would be
prohibited by law. Borrower authorizes Xxxxxx, to the extent permitted by
applicable law, to charge or setoff all sums owing on this Note against any and
all such accounts.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under
this Note, as well as directions for payment from Xxxxxxxx's accounts, may be
requested orally or in writing by Borrower or by an authorized person. Lender
may, but need not, require that all oral requests be confirmed in writing.
Xxxxxxxx agrees to be liable for all sums either: (a) advanced in accordance
with the instructions of an authorized person or (b) credited to any of
Xxxxxxxx's accounts with Xxxxxx, regardless of the fact that persons other than
those authorized to borrow have authority to draw against the accounts. The
unpaid principal balance owing on this Note at any time may be evidenced by
endorsements on this Note or by Xxxxxx's internal records, including daily
computer print-outs. Lender will have no obligation to advance funds under this
Note if: (a) Borrower or any guarantor is in default under the terms of this
Note or any agreement that Borrower or any guarantor has with Lender, including
any agreement made in connection with the signing of this Note; (b) Borrower or
any guarantor ceases doing business or is insolvent; (c) any guarantor seeks,
claims or otherwise attempts to limit, modify or revoke such guarantor's
guarantee of this Note or any other loan with Lender; (d) Borrower has applied
funds provided pursuant to this Note for purposes other than those authorized by
Lender; or (e) Lender in good xxxxx xxxxx itself insecure under this Note or any
other agreement between Lender and Borrower.
ARBITRATION. Xxxxxx and Xxxxxxxx agree that all disputes, claims and
controversies between them, whether individual, joint, or class in nature,
arising from this Note or otherwise, including without limitation, contract and
tort disputes, shall be arbitrated pursuant to the Rules of the American
Arbitration Association, upon request of either party. No act to take or dispose
of any collateral securing this Note shall constitute a waiver of this
arbitration agreement or be prohibited by this arbitration agreement. This
includes, without limitation, obtaining injunctive relief or a temporary
restraining order; foreclosing by notice and sale under any deed of trust or
mortgage; obtaining a writ of attachment or imposition of a receiver; or
exercising any rights relating to personal property, including taking or
disposing of such property with or without judicial process pursuant to Article
9 of the Uniform Commercial Code. Any disputes, claims, or controversies
concerning the lawfulness or reasonableness of any act, or exercise of any
right, concerning any collateral securing this Note, including any claim to
rescind, reform, or otherwise modify any agreement relating to the collateral
securing this Note, shall also be arbitrated, provided however that no
arbitrator shall have the right or the power to enjoin or restrain any act of
any party. Judgment upon any award rendered by any arbitrator may be entered in
any court having jurisdiction. Nothing in this Note shall preclude any party
from seeking equitable relief from a court of competent jurisdiction. The
statute of limitations, estoppel, waiver, laches, and similar doctrines which
would otherwise be applicable in an action brought by a party shall be
applicable in any arbitration proceeding, and the commencement of an arbitration
proceeding shall be deemed the commencement of an action for these purposes. The
Federal Arbitration Act shall apply to the construction, interpretation, and
enforcement of this arbitration provision.
LATE CHARGE. If a payment is 19 days or more past due, Borrower will be charged
a late charge of 5% of the delinquent payment.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, protest and notice of dishonor. Upon any change
in the terms of this Note, and unless otherwise expressly stated in writing, no
party who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repeatedly and or any length of time) this loan, or release
any party or guarantor or collateral; or impair, fail to realize upon or perfect
Xxxxxx's security interest in
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PROMISSORY NOTE
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the collateral; and take any other action deemed necessary by Xxxxxx without the
consent of or notice to anyone. All such parties also agree that Xxxxxx may
modify this loan without the consent of or notice to anyone other than the party
with whom the modification is made.
UNDER OREGON LAW MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY US (LENDER)
AFTER OCTOBER 3,1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT
FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY US TO BE
ENFORCEABLE.
PRIOR TO SIGNING THIS NOTE, XXXXXXXX READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. XXXXXXXX AGREES TO
THE TERMS OF THIS NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE.
BORROWER:
Webtrends Corporation
By: /s/ By: /s/
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X. Xxxx Xxxx, President Xxx Xxxxxxx, Chief Tech Officer
LENDER:
U. S. BANK NATIONAL ASSOCIATION
By: /s/
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Authorized Officer
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