EXHIBIT 10.20
SECURED REVOLVING TIME NOTE
(LIBOR OPTION)
$5,000,000.00 December 29, 1998
Boston, Massachusetts
For value received, on December 31, 199___, the undersigned, Bottomline
Technologies (de), Inc., (the "BORROWER"), promises to pay to Fleet National
Bank, at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "BANK"), or order,
the principal sum of Five Million ($5,000,000.00) Dollars, or if less, such
amount as may be the aggregate unpaid principal amount of all loans or advances
made by the Bank to the Borrower pursuant to a Loan Agreement between the
Borrower and the Bank dated January 13, 1995, as amended (the "AGREEMENT"),
together with interest (as provided below) on the aggregate unpaid principal
balance from time to time outstanding.
Upon the Borrower's request, the Bank may, in its sole discretion, make
loans and advances to the Borrower from time to time in accordance with the
terms of the Agreement in an aggregate amount not to exceed the maximum
principal amount of this Note, and the Borrower may repay and reborrow such
loans and advances, provided, that no further advances of principal shall be
made after December 31, 1999 (the "TERMINATION DATE").
At the Borrower's election, each advance hereunder will bear interest at
either: (i) a variable per annum rate equal to the Prime Rate (hereinafter
referred to as a "PRIME RATE LOAN(S)"); or (ii) a fixed per annum rate equal to
the LIBOR Interest Rate plus Margin, determined as provided below (hereinafter
referred to as a "LIBOR LOAN(S)"). Interest shall be computed on the basis of
the actual number of days elapsed over a year of 360 days. If the outstanding
balance of each advance evidenced by this Note is not paid in full when due or
after the occurrence of an Event of Default, interest on such unpaid balance
shall thereafter accrue and be payable at a per annum rate equal to four (4%)
percent greater than the rate of interest otherwise applicable to such balance
(the "Default Rate"). In no event, however, shall advances evidenced by this
Note bear interest rate in excess of the maximum interest permitted by
applicable law.
Interest on the aggregate principal balance of Prime Rate Loans owing to
the Bank at the close of each day shall be payable monthly in arrears commencing
on the first day of the month next succeeding the date hereof, and continuing on
the first day of each month thereafter until such principal balance is fully and
finally paid. Interest on the unpaid principal balance of each LIBOR Loan shall
be payable on the first day of each month of the Interest Period with respect to
such LIBOR Loan, in arrears. If the entire amount of any payment of principal
or interest required hereunder is not paid within ten (10) days after the same
becomes due, the Borrower shall pay to the Bank a late fee equal to five (5%)
percent of the required payment.
The Borrower may request Prime Rate Loans hereunder by telephone, facsimile
or mail by specifying the amount of the requested advance and electing the Prime
Rate interest option. The Borrower may request LIBOR Loans hereunder by
submitting to the Bank a written notification in the form of Exhibit 1 annexed
hereto (herein a "NOTICE OF BORROWING"), which indicates (i) the Borrowing Date
for the requested LIBOR Loan and; (ii) the amount of the LIBOR Loan (which shall
be in increments of not be less than One Hundred Thousand ($100,000.00)
Dollars). The Interest Period (as hereinafter defined) shall be for one, two or
three month periods as specified on the Notice of Borrowing. Each Notice of
Borrowing must be received by the Bank not less than two (2) Banking Days prior
to the Borrowing Date. A Notice of Borrowing may be transmitted by facsimile or
mail, but may not be transmitted by telephone. The Bank shall incur no
liability to the Borrower in acting upon requests for advances hereunder by
telephone, facsimile or mail which the Bank believes in good faith to have been
given by an officer or other person authorized to borrow on behalf of the
Borrower in accordance with the borrowing resolutions provided by the Borrower
to the Bank.
After receipt from the Borrower of any Notice of Borrowing, the Bank shall
determine if it is able to make such LIBOR Loan (or if it is unable to do so for
reasons described in this Paragraph) and will notify the Borrower accordingly.
If the Bank determines in good faith that, by reason of circumstances affecting
the Interbank Market, adequate and reasonable methods do not exist for
ascertaining the LIBOR which would otherwise be applicable to such LIBOR Loan,
then the Bank shall so notify the Borrower on or before 4:00 p.m. on the Banking
Day prior to the Borrowing Date specified in the Notice of Borrowing, and in
such event, the Bank shall not be obligated to make such LIBOR Loan and the
Notice of Borrowing shall be deemed to have been withdrawn by the Borrower with
the Bank's consent and, in the case of new advances, substituted with a request
for a Prime Rate Loan in an amount equal to the requested LIBOR Loan.
Except as otherwise provided in the Paragraph above, any Notice of
Borrowing which requests a LIBOR Loan shall be irrevocable and binding upon the
Borrower. In the event the Borrower fails to borrow the LIBOR Loan requested on
the Borrowing Date specified in such Notice of Borrowing, the Borrower shall
indemnify the Bank against any and all losses and expenses incurred by the Bank
by reason of such failure including, without limiting the generality of the
foregoing, all losses and expenses incurred by reason of the liquidation,
disposition or redeployment of deposits or other funds acquired by the Bank to
fund such LIBOR Loan.
Each advance which constitutes a LIBOR Loan hereunder shall be repaid in
full on its Maturity Date. In the event a LIBOR Loan is not repaid in full on
its Maturity Date, the outstanding principal balance of such LIBOR Loan shall
thereafter convert to a Prime Rate Loan and bear interest accordingly. Any
LIBOR Loan may be repaid with the proceeds of another LIBOR Loan.
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No LIBOR Loan may be prepaid prior to its Maturity Date. In the event a
LIBOR Loan is prepaid prior to its Maturity Date, whether voluntarily or upon
exercise by the Bank of its rights hereunder following the occurrence of an
Event of Default, the Borrower shall, upon demand by the Bank, pay to the Bank
any amounts required to compensate the Bank for any additional losses, costs or
expenses which it may reasonably incur as a result of such prepayment,
including, without limitation, any loss, costs or expenses incurred by reason of
the liquidation of redeployment of deposits or other funds acquired by the Bank
to fund or maintain such LIBOR Loan.
Notwithstanding any other provision of this Note, (1) if the introduction
of, or any change in, any law or regulation (or change in the interpretation
thereof) applicable to the Bank or any foreign branch, agent or correspondent
thereof shall make it unlawful, or (2) if any central bank or other governmental
authority having jurisdiction over the Bank or any such branch, agent or
correspondent, shall asset that it is unlawful, for the Bank to perform its
obligations hereunder or for any such branch, agent or correspondent to act on
behalf of the Bank to make LIBOR Loans to the Borrower or to continue to fund or
maintain LIBOR Loans for the Borrower hereunder, or (3) if the Bank determines
after making all reasonable efforts, that deposits of the relevant amount and
for the relevant LIBOR Loan are not available to the Bank in the Interbank
Market, then, on notice thereof by the Bank to the Borrower, the obligation of
the Bank to the Borrower to make future LIBOR Loans shall terminate. If, as a
result of any of the foregoing described events, the Bank is prohibited from
maintaining LIBOR Loans the Bank shall, upon the happening of such event, notify
the Borrower and the Borrower shall, in the case of each LIBOR Loan on the
Maturity Date thereof (or, in any event, if the Bank so requests, on such
earlier date as may be required by the relevant law, regulation or
interpretation), either prepay such LIBOR Loan, or convert such LIBOR Loan into
a Prime Rate Loan.
Calculation of the LIBOR Interest Rate, as well as all other fees and
charges payable with respect to each LIBOR Loan shall be made and paid as though
the Bank had actually funded the relevant LIBOR Loan through the purchase of a
Eurodollar deposits at LIBOR in an amount equal to the amount of the LIBOR Loan
and having a maturity comparable to the relevant Interest Period and through the
transfer of such Eurodollar deposit from an offshore agent or office of the Bank
to a domestic office of the Bank in the United States of America, provided,
however, that the Bank may fund each LIBOR Loan in any manner it sees fit and
the foregoing assumptions shall be nevertheless used for the calculation of the
LIBOR Interest Rate and such other fees and charges.
At the option of the Bank, this note shall become immediately due and
payable without notice or demand upon the occurrence at any time of: (i) the
failure to pay in full and when due any installment of principal or interest
hereunder, (ii) an Event of Default as defined in the Agreement between the Bank
and the Borrower, as amended from time to time; or (iii) termination of the
Agreement.
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Any deposits or other sums at any time credited by or due from the Bank to
the Borrower or any guarantor hereof, and any securities or other property of
the Borrower or any such guarantor, in the possession of the Bank, may at any
and all times be held and treated as security for the payment of the liabilities
hereunder; and the Bank may apply or set off such deposits or other sums, at any
time, and without notice to the Borrower or to any such guarantor, against any
of such liabilities, whether or not the same have matured, and whether or not
other collateral is available to the Bank.
No delay or omission on the part of the Bank in exercising any right
hereunder shall operate as a waiver of such right or of any other right of the
Bank, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or any other right on any future occasion. The
Borrower and every other maker and every endorser or guarantor of this Note,
regardless of the time, order or place of signing, waives presentment, demand,
protest and notices of every kind and assents to any extension or postponement
of the time of payment or any other indulgence, to any substitution, exchange or
release of collateral, and to the addition or release of any other party or
person primarily or secondarily liable.
The Borrower agrees to pay all costs of collection of the principal of and
interest on this Note; including, without limitation, reasonable attorneys'
fees.
As used in this Note, the following terms shall have the following
meanings:
(1) "BANKING DAY" shall mean a day on which banks are open for business in
Boston, Massachusetts, and if the applicable "Banking Day" relates to a LIBOR
Loan, a day on which dealings are carried on and banks are open for business in
the relevant Interbank Market.
(2) "BORROWING DATE" shall mean any day upon which a LIBOR Loan is made.
(3) "DOLLARS" or "S" shall mean currency of the United States of America.
(4) "EUROCURRENCY LIABILITIES" shall have the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
(5) "EURODOLLARS" shall mean Dollars acquired by the Bank through the
purchase or other acquisition of deposits denominated in Dollars and made with
any bank or branch of a bank (including any branch of the Bank) located outside
the United States of America.
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(6) "INTERBANK MARKET" shall mean, with respect to any LIBOR Loan, any
recognized interbank Eurodollar market chosen in good faith by the Bank.
(7) "INTEREST PERIOD" shall mean, with respect to each LIBOR Loan, a period
commencing on the Borrowing Date of such loan, and ending on the numerically
corresponding day in the first, second or third month thereafter, as determined
in accordance with the provisions of this Note, provided that any Interest
Period which would otherwise end on a day which is not a Banking Day, shall end
and the next Interest Period shall commence on the next preceding or the next
succeeding day which is a Banking Day as determined in good faith by the Bank in
accordance with the then current bank practices in the relevant Interbank
Market.
(8) "LIBOR" shall mean, with respect to a LIBOR Loan, the rate per annum
(rounded upward, if necessary, to the nearest one-eight (1/8th) of one (1%)
percent) at which deposits in Dollars are offered to the Bank or the Bank's
representative or agent for delivery on the Borrowing Date for such LIBOR Loan,
in the relevant Interbank Market at 11:00 a.m., local time, two Banking Days
prior to such Borrowing Date for a period equal to the Interest Period chosen by
Borrower with respect to such LIBOR Loan and in an amount substantially equal to
the principal amount thereof. The Bank shall give prompt notice to the Borrower
of the LIBOR determined for each LIBOR Loan and such notice shall be conclusive
and binding, absent manifest error, for all purposes.
(9) "LIBOR INTEREST RATE" shall mean an interest rate per annum (rounded
upward, if necessary, to the nearest one-eight (1/8th) of one (1%) percent)
determined by the Bank pursuant to the following formula:
LIBOR Interest Rate = LIBOR
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1.00 - Reserve Rate
(10) "MARGIN" shall mean: one hundred fifty (150) basis points.
(11) "MATURITY DATE" shall mean the date on which an Interest Period
expires.
(12) "PRIME RATE" shall mean the rate of interest announced from time to
time by the Bank, at its head office, as its Prime Rate, it being understood
that such rate is a reference rate and not necessarily the lowest rate of
interest charged by the Bank. The rate of interest payable by the Borrower on
Prime Rate Loans shall be changed effective as of that date on which a change in
the Prime Rate becomes effective.
(13) "RESERVE RATE" shall mean the rate (expressed as a decimal) at which
the Bank would be required to maintain reserves under REGULATION D of the
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Board of Governors of the Federal Reserve System against Eurodollar Liabilities
if such Liabilities were outstanding. The LIBOR Interest Rate shall be adjusted
automatically as of the effective date of any change in the Reserve Rate.
THE BORROWER AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT TO TRIAL BY JURY THAT THE BORROWER OR THE BANK MAY HAVE IN ANY
ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THE TRANSACTION
DOCUMENTS OR THE TRANSACTIONS RELATED THERETO. THE BORROWER HEREBY CERTIFIES
THAT NO REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER ACKNOWLEDGES THAT
THE BANK HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE PROVISIONS OF THIS SECTION.
All rights and obligations hereunder shall be governed by the laws of the
Commonwealth of Massachusetts, and this Note shall be deemed to be under seal.
WITNESS: BOTTOMLINE TECHNOLOGIES, (de) INC.
/s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Executive Vice President
and Chief Financial Officer
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EXHIBIT 1
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NOTICE OF BORROWING
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Date:_____________, 19____
To: Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: Secured Revolving Time Note between Fleet National Bank (the "Bank")
and Bottomline Technologies (de), Inc. (the "Borrower") dated December
29, 1998 (the "Note")
This Notice of Borrowing confirms the following request for a LIBOR Loan
under the Note.
Date of Request:
---------------
Date of LIBOR Loan:
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Amount of LIBOR Loan at LIBOR Rate:*
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Interest Period: (one, two or three months):
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The Borrower hereby certifies that all representations and warranties
contained in the Agreement between the Borrower and the Bank are true and
accurate in all material respects on the date of this Notice of Borrowing as
though such representations and warranties had been made on this date (except to
the extent that such representation or warranty expressly relates to an earlier
date).
Terms used herein which are defined in the Note are used as so defined.
BOTTOMLINE TECHNOLOGIES (de), INC.
By:
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* Must be in increments of $100,000.00
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