EXHIBIT 10.22
EXECUTION COPY
LOAN AGREEMENT
THIS LOAN AGREEMENT is made as of February 13, 2002, by and
among SynQuest, Inc., a Georgia corporation (the "Company"), and Warburg, Xxxxxx
Investors, L.P., a Delaware limited partnership, as lender (the "Lender").
RECITALS
WHEREAS, the Company seeks bridge financing to provide working
capital for its business; and
WHEREAS, the Lender desires to provide such bridge financing.
NOW THEREFORE, in consideration of the foregoing and the
mutual promises and covenants made herein, and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. LOAN.
1.1 THE MAXIMUM AMOUNT. The Lender hereby agrees to loan
to the Company funds necessary to enable the Company to meet its working capital
needs; provided, however, that the aggregate amount of such borrowings shall not
exceed $3,000,000.00 (the "Maximum Amount").
1.2 BORROWINGS. The Company may borrow from the Lender
from time to time any amounts in denominations of at least $500,000.00 or
integral multiples of $100,000.00 in excess thereof up to but not exceeding the
Maximum Amount in the aggregate; provided, however, that any principal amounts
repaid under the Notes (as defined below) may not be reborrowed under this
Agreement and any such repayments will cause a corresponding reduction in the
Maximum Amount. To make a borrowing, the Company shall give the Lender at least
three business days' notice of borrowing. The exact amount outstanding shall be
the amount reflected on the Lender's books and records from time to time, which
books and records shall be conclusive evidence of the amount outstanding absent
manifest error. The Lender shall advance the borrowings to such account as the
Company shall direct.
1.3 CERTIFICATE OF OFFICER. All borrowings hereunder
shall be evidenced by a certificate from a duly authorized officer of the
Company in form and substance reasonably satisfactory to the Lender certifying
that the representations, warranties and covenants of the Company set forth
herein are true and correct in all respects and that there has been no change in
or effect on the business of the Company or any of its subsidiaries that is or
is reasonably likely to be materially adverse to the business, operations,
properties (including intangible properties and leased or owned properties),
condition (financial or otherwise), prospects, assets or liabilities of the
Company and its subsidiaries, taken as a whole (a "Material Adverse Effect"),
each as of the date of such borrowing.
1.4 TERMINATION. Except as provided in Section 6.10
hereof, this Agreement shall terminate on the earlier of (i) the date on which
the Company has borrowed and repaid funds hereunder equal, in the aggregate, to
the Maximum Amount and (ii) December 31, 2002 (the "Termination Date"). All
borrowings hereunder shall be due and payable on or prior to the close of
business on December 31, 2002. After the Termination Date, the Lender shall have
no further obligation to contribute any funds to the Company hereunder.
2. ISSUANCE OF NOTES.
2.1 NOTE. The Company hereby agrees that, upon each
borrowing of funds from the Lender, the Company will execute and deliver to the
Lender a promissory note and security agreement substantially in the form
attached hereto as Exhibit A, evidencing the loan made by the Lender (each, a
"Note," and collectively, the "Notes").
2.2 INTEREST. The outstanding principal amount on each
Note shall bear interest at the rates set forth in the Notes. Interest shall
commence with the date of issuance thereof and shall continue on the outstanding
principal balance until the Note is paid in full.
2.3 USURY SAVINGS CLAUSE. Each Note shall contain an
appropriate usury savings clause.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company hereby represents and warrants to the Lender the following:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Georgia and has all requisite corporate power and
authority to carry on its business as now being conducted and proposed to be
conducted in the future. The Company is duly qualified to transact business and
is in good standing in each jurisdiction where failure to so qualify would have
a Material Adverse Effect.
3.2 AUTHORIZATION. All corporate actions on the part of
the Company, its officers, directors, and shareholders necessary for the
authorization, execution, and delivery of this Agreement, the Notes, the
performance of all obligations of the Company hereunder and thereunder, and the
authorization, issuance, and delivery of the Notes, have been taken. This
Agreement and the Notes constitute the valid and legally binding obligations of
the Company, enforceable in accordance with their respective terms, except as
limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement of creditors' rights
generally, (b) laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (c) state and federal
securities laws with respect to rights to indemnification or contribution.
3.3 CONSENTS. Other than a Current Report on Form 8-K to
be filed with the Securities and Exchange Commission, the execution and delivery
by the Company of this Agreement and the performance by the Company of its
obligations hereunder (including the issuance and sale of the Notes) do not
require the Company to obtain any consent, approval or action of, or make any
filing with or give any notice to, any corporation, person or firm or any
public, governmental or judicial authority that has not already been obtained
prior to the date hereof.
3.4 ABSENCE OF DEFAULTS. The execution and delivery of
this Agreement and the performance of its obligations hereunder (including the
issuance and sale of the Notes) will not result in a breach of any of the terms,
conditions or provisions of, or constitute a default under, or permit the
acceleration of rights under or termination of, any material indenture,
mortgage, deed of trust, credit agreement, note or other evidence of
indebtedness, or other material agreement of the Company or the Third Amended
and Restated Articles of Incorporation or Bylaws of the Company. No event has
occurred and no condition exists which, upon notice or the passage of time (or
both), would constitute a default under any such key agreements and instruments
or in any license, permit or authorization to which the Company is a party or by
which it may be bound.
3.5 USE OF PROCEEDS. All proceeds loaned to the Company
under the Notes shall be used solely for lawful business purposes. The Company
is not purchasing or carrying any "margin stock" (as defined in Regulation U of
the Board of Governors of the Federal Reserve System) and no part of the
proceeds or any amounts loaned under the Notes will be used to purchase or carry
any "margin stock" or to extend credit to others for the purpose of purchasing
or carrying any "margin stock."
3.6 SUBORDINATION OF OTHER DEBT. Subject to Permitted
Liens (as defined in the Notes), all present and future debt of the Company,
shall, at all times, be subordinated to the Obligations (as such term is defined
in each Note) of the Company. If requested by the Lender, the Company shall
deliver a subordination agreement with respect to such debt in form and
substance reasonably satisfactory to the Lender.
3.7 TAX RETURNS AND PAYMENTS; PENSION CONTRIBUTIONS. The
Company has timely filed, and will timely file, all tax returns and reports
required by foreign, federal, state and local law, and the Company has timely
paid and will timely pay, all foreign, federal, state and local taxes,
assessments, deposits and contributions now or in the future owned by the
Company. The Company may, however, defer payment of any contested taxes,
provided that the Company (i) in good faith contests the Company's obligation to
the taxes by appropriate proceedings promptly and diligently instituted and
conducted, (ii) notifies the Lender in writing of the commencement of, and any
material development in, the proceedings and (iii) posts bonds or takes any
other steps required to keep the contested taxes from becoming a lien upon the
Collateral. Other than a proposed adjustment for New York State sales tax
estimated by the Company to be approximately $100,000, the Company is unaware of
any claims or adjustments proposed for any of the Company's prior tax years
which could result in additional taxes becoming due and payable by the Company.
The Company has paid, and shall continue to pay all amounts necessary to fund
all present and future pension, profit sharing and deferred compensation plans
in accordance with their terms, and the Company has not and will not withdraw
from participation in, permit partial or complete termination of, or permit the
occurrence of any other event with respect to, any such plan which could result
in any liability of the Company.
4. LEGENDS. The Company and the Lender understand that the Notes
may bear the following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS
ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY
PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS."
5. CONDITIONS TO LOAN. The obligation of the Lender to advance
any funds hereunder is subject to the satisfaction of the following conditions:
5.1 NOTE. The Lender shall have received a Note
substantially in the form of Exhibit A attached hereto evidencing such loan; and
5.2 CERTIFICATE. The Lender shall have received a
certificate of a duly authorized officer of the Company pursuant to Section 1.3
of this Agreement.
6. MISCELLANEOUS.
6.1 FEES AND EXPENSES. Each party hereto shall bear their
own attorney's fees in connection with the negotiation and execution of this
Agreement and the other documents and agreements with the Lender contemplated
herein.
6.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties hereto
(including transferees of any securities). Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
6.3 GOVERNING LAW. This Agreement shall be governed by
and construed under the laws of the State of New York as applied to agreements
among New York residents, entered into and to be performed entirely within New
York.
6.4 COUNTERPARTS. This Agreement may be executed in two
or more counterparts, and by facsimile, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
6.5 NOTICES. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given upon personal delivery to the party to be notified
or four (4) days after deposit with the United States Post Office, by registered
or certified mail, postage prepaid and addressed to the party to be notified at
the address indicated for such party, in the case of the Company or the Lender,
on the signature page hereto, or at such other address as such party may
designate by advance written notice to the other parties.
6.6 FINDER'S FEE. The Company agrees to indemnify and
hold harmless the Lender from any liability for any commission or compensation
in the nature of a finders' fee (and the costs and expenses of defending against
such liability or asserted liability) for which the Company or any of its
officers, employees or representatives is responsible. The Lender and agrees to
indemnify and to hold harmless the Company from any liability for any commission
or compensation in the nature of a finders' fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Lender or
any of its officers, partners, employees, or representatives is responsible.
6.7 ENTIRE AGREEMENT. This Agreement, the Notes and the
other documents delivered pursuant hereto or thereto, constitute the entire
agreement among the parties hereto and no party shall be liable or bound to any
other party in any manner by any warranties, representations, or covenants
except as specifically set forth herein or therein.
6.8 AMENDMENT AND WAIVER. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the Lender. Any
waiver or amendment effected in accordance with this section shall be binding
upon each holder of any Notes purchased under this Agreement at the time
outstanding, each future holder of all such Notes, and the Company.
6.9 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
6.10 SURVIVAL. The representations, warranties, covenants
and agreements made herein shall survive the consummation or termination of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SYNQUEST, INC.
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name:
Title:
Address: 0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention:
ACCEPTED AND AGREED:
WARBURG, XXXXXX INVESTORS, L.P., AS LENDER
By: WARBURG, XXXXXX & CO.,
General Partner
By: /s/ Xxxxxx Xxxxx
-------------------------
Name:
Title:
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention:
EXHIBIT A
FORM OF PROMISSORY NOTE AND SECURITY AGREEMENT
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN
STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT
AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER
OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER
OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
PROMISSORY NOTE AND SECURITY AGREEMENT
Note No. 1
$___________________ New York, New York
February ___, 2002
For value received SynQuest, Inc., a Georgia corporation ("Borrower"),
unconditionally promises to pay to Warburg, Xxxxxx Investors, L.P., or its
assigns, as Lender (as defined in the Loan Agreement (as defined below)), the
principal sum of __________________________________ ($____________) with simple
interest on the outstanding principal amount. The outstanding principal amount,
together with all accrued and unpaid interest, shall be due and payable on
__________, 2002 (the "Maturity Date").
1. Interest. The outstanding principal amount on this Promissory
Note and Security Agreement (this "Note") shall bear interest at the Prime Rate
(as defined below) plus two percent (2%) per annum and shall commence with the
date hereof and shall continue on the outstanding principal until this Note is
paid in full, in accordance with the terms hereof. Notwithstanding the
foregoing, any amount outstanding under this Note shall bear interest from and
after the Maturity Date at the Prime Rate plus three percent (3%) per annum. Any
interest on this Note accruing after the Maturity Date shall accrue and be
compounded monthly until the Obligations (as defined below) of Borrower with
respect to the payment of such interest has been discharged (whether before or
after judgment). For Purposes hereof, the "Prime Rate" shall mean the interest
rate announced publicly by the Atlanta office of SunTrust as its "Prime Rate" as
then in effect. For purposes of calculating interest hereunder, the Prime Rate
shall first be determined as of the opening of business on the date hereof, and
thereafter shall be redetermined every six (6) months thereafter.
2. Payments. Borrower may prepay all or any portion of this Note
at any time without penalty. All payments shall be made to the Lender at it
offices at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or at such other address as
the Lender may specify in writing. All payments received from Borrower hereunder
shall be applied first, to the payment of any expenses due to the Lender
pursuant to the terms of this Note, second, to the payment of interest accrued
and unpaid on this Note, and third, to reduce the principal balance hereunder.
Any payments of expenses, principal or interest shall be made in U.S. dollars.
3. Loan Agreement. This Note is being issued pursuant to the Loan
Agreement, dated as of February ___, 2002, by and between Borrower and the
Lender (the "Loan Agreement"), and is subject to the provisions thereof. If any
dispute arises between the terms of the Loan Agreement and the terms of this
Note, the terms of the Loan Agreement shall prevail.
4. No Voting Rights. This Note shall not entitle the Lender to
any voting rights or other rights as a stockholder of Borrower.
5. Transfers. This Note may be transferred only in compliance
with applicable federal and state securities laws and only upon surrender of the
original Note for registration of transfer, duly endorsed, or accompanied by a
duly executed written instrument of transfer in form satisfactory to Borrower.
Thereupon, a new promissory note for like principal amount and interest will be
issued to, and registered in the name of, the transferee. Interest and principal
are payable only to the registered holder of this Note. The Lender agrees to
provide a form W-9 to Borrower on request.
6. Collateral.
6.11 As collateral for the repayment in full of the
principal of and interest on this Note, together with all costs of enforcement
of this Note (the "Obligations"), the undersigned does hereby grant to the
Lender a security interest in the property set forth on Schedule 1 hereto
together with all proceeds thereof (the "Collateral"). Upon the occurrence and
continuance of an Event of Default (as defined below), the Lender shall have all
the rights and remedies of a secured party under the Uniform Commercial Code of
the State of New York (the "UCC").
6.12 The principal place of business of Borrower is 0000
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 (the "Principal Office"). Any
Collateral consisting of goods or inventory is located at the Principal Office
or another office of Borrower. Borrower will give the Lender notice within 15
days of any material change in the foregoing information. At reasonable times,
and on one business day's notice, the Lender or its agent, shall have the right
to inspect the Collateral, and the right to audit and copy Borrower's books and
records, provided the Lender or its agent shall take all reasonable steps to
keep confidential all information obtained in any such inspection or audit.
6.13 Borrower will maintain all Collateral in good
condition, ordinary wear and tear excepted, will not use the Collateral for any
unlawful purpose and will immediately advise the agent in writing of any
material loss or damage to the Collateral.
Borrower will not sell, lease or otherwise dispose of the Collateral without the
prior written consent of the Lender. Borrower will notify the Lender within five
calendar days of any commercial tort claim (as defined in the UCC) which may be
asserted by it against any third party.
6.14 Borrower hereby represents and covenants that it is
now, and will at all times in the future be, the sole owner of all the
Collateral, except for items of equipment which are leased by Borrower, certain
intellectual property licensed by Borrower and certain jointly owned
intellectual property. Borrower hereby further represents and covenants that the
Collateral is now and will remain free and clear of any and all liens, charges,
security interests, encumbrances and adverse claims, subject only to certain
Permitted Liens (as defined below). Subject to the immediately preceding
sentence, Borrower hereby agrees to take such steps from time to time as may be
requested by the Lender to ensure that the security interest created hereby
shall constitute a first priority security interest under applicable law,
including the UCC. As used herein, "Permitted Liens" shall mean (i) purchase
money security interests in specific items of equipment, (ii) materialmen's,
mechanics', carriers', workmen's, warehousemen's, repairmen's, or other like
Liens (as defined below) arising in the ordinary course of business, or deposits
to obtain the release of such Liens, (iii) Liens for current taxes not yet due
and payable or to the extent the taxpayer is contesting such taxes in good faith
through appropriate proceedings, (iv) Liens existing on the date hereof held by
the landlords of the Borrower on certain Collateral, and (v) Liens or minor
imperfections of title that do not materially impair the continued use and
operation of the assets to which they relate and would not reasonably be
expected to have a material adverse effect on the business, operations,
properties (including intangible properties and leased or owned properties),
condition (financial or otherwise), prospects, assets or liabilities of the
Company and its subsidiaries, taken as a whole ("Material Adverse Effect"). As
used herein, "Liens" shall mean with respect to any person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or of such person under
any conditional sale or other title retention agreement or capital lease, upon
or with respect to any property or asset of such person.
6.15 Borrower shall, at all times insure all of the
tangible personal property Collateral and carry such other business insurance,
with insurers reasonably acceptable to the Lender, in such form and amounts as
the Lender may reasonably require and that are customary and in accordance with
standard practices for Borrower's industry and locations, and Borrower shall
provide evidence of such insurance to the Lender, so that the Lender is
satisfied that such insurance is, at all times, in full force and effect.
6.16 Should any third-party suit or proceeding be
instituted by or against the Lender with respect to the Collateral or in any
manner relating to Borrower, Borrower shall, without expense to the Lender, make
available Borrower and its officers, employees and agents and Borrower's books
and records, to the extent that the Lender may deem them reasonable necessary in
order to prosecute or defend any such suit or proceeding.
7. Event of Default. This Note shall become immediately due and
payable upon the occurrence of an Event of Default, whereupon (i) the Lender may
cease making any
loans or otherwise extending credit to Borrower hereunder or under any other
document or agreement, including without limitation, the Loan Agreement, (ii)
this Note and all accrued interest shall become and be immediately due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by Borrower and (iii) the Lender, at its
option, may proceed to enforce all other rights and remedies available to the
Lender under applicable law, including without limitation the taking possession
of any or all of the Collateral wherever it may be found. For purposes hereof,
the occurrence of any of the following shall constitute an "Event of Default"
under this Note:
(a) the failure by Borrower to make any payment of principal or
any other amount payable hereunder, under any other Note issued by Borrower
under the Loan Agreement, under any other evidence of indebtedness delivered by
Borrower to the Lender, when the same becomes due or the breach of any other
condition or Obligation under this Note or any other Note or evidence of
indebtedness delivered by Borrower to the Lender under the Loan Agreement or
otherwise;
(b) the filing of a petition by or against Borrower under any
provision of applicable bankruptcy or similar law; or appointment of a receiver,
trustee, custodian or liquidator of or for all or any part of the assets or
property of Borrower; or the insolvency of Borrower; or the making of a general
assignment for the benefit of creditors by Borrower;
(c) the past or future making of any untrue representation or
warranty by Borrower under or in connection with this Note, the Loan Agreement,
any other evidence of indebtedness delivered by Borrower to the Lender or any
certificate, instrument or written statement delivered in connection therewith
which could reasonably be expected to have a Material Adverse Effect;
(d) subject only to certain Permitted Liens, failure of the
security interest purported to be created hereby to be a first priority
perfected security interest free and clear of all liens, security interests or
other encumbrances of any nature whatsoever; or
(e) failure of Borrower to comply with any covenant or agreement
contained herein or in the Loan Agreement which failure remains unremedied for a
period of 30 days after notice thereof shall have been given to Borrower by the
Lender and could reasonably be expected to have a Material Adverse Effect.
8. Amendment; Waiver. Any amendment hereto or waiver of any
provision hereof may be made only with the written consent of Borrower and the
Lender. This Note shall inure to the benefit of and bind the successors,
permitted assigns, heirs, executors, and administrators of Borrower and the
Lender. Failure of the Lender to assert any right herein shall not be deemed to
be a waiver thereof.
9. Usury Savings Clause. Each of Borrower and the Lenders intend
to comply at all times with applicable usury laws. If at any time such laws
would render usurious any amounts due under this Note under applicable law, then
it is each of Borrower's and the Lenders' express intention that Borrower not be
required to pay interest on this Note at a rate in excess of the maximum lawful
rate, that the provisions of this Section 9 shall control over all
other provisions of this Note which may be in apparent conflict hereunder, that
such excess amount shall be immediately credited to the principal balance of
this Note, and the provisions hereof shall immediately be reformed and the
amounts thereafter decreased, so as to comply with the then applicable usury
law, but so as to permit the recovery of the fullest amount otherwise due under
this Note.
10. Costs. Borrower agrees to pay all reasonable costs of
collection and enforcement of any amounts due hereunder arising as a result of
any default hereunder, including without limitation, attorneys' fees and
expenses.
11. Governing Law. This Note is made in accordance with and shall
be construed under the laws of the State of New York, other than the conflicts
of law principles thereof.
12. Waiver. All parties now and hereafter liable with respect to
this Note, whether maker, principal, surety, guarantor, endorser or otherwise,
hereby waive presentment, demand, protest and all other notice of any kind.
13. Notices. All notices hereunder shall be given in writing and
shall be deemed delivered when received by the other party hereto at the address
set forth below such party's signature or at such other address as may be
specified by such party from time to time.
AGREED:
SYNQUEST, INC.
as Borrower
By:
----------------------------------
Name:
Title:
Address: 0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention:
ACCEPTED:
WARBURG, XXXXXX INVESTORS, L.P., as
Lender
By:
----------------------------------
Name:
Title:
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention:
SCHEDULE 1
Description of Collateral
The Collateral includes the following items or types of property, whether now
owned or hereafter acquired and wherever located: goods, equipment, inventory,
accounts, instruments, investment property, chattel paper, commercial tort
claims, notes, deposit accounts, general intangibles, payment intangibles,
letter-of-credit rights and proceeds of the foregoing. Each of the foregoing
terms includes all such terms as defined in the New York Uniform Commercial
Code, as amended from time to time.
