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EXHIBIT 10.4.10
COMMERCIAL DEMAND NOTE
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$1,000,000.00 Boston, Massachusetts
August 10, 1998
FOR VALUE RECEIVED, the undersigned (hereinafter, referred to as the
"Borrower") promises to pay to the order of BANKBOSTON, N.A. (together with any
successors or assigns, the "Bank"), ON DEMAND, at the Head Office of the Bank,
000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, One Million Dollars ($1,000,000.00)
with interest thereon at a floating rate equal to the Base Rate.
Interest shall be payable in arrears on the last day of the month
following the date hereof and on the same day of each month thereafter, and
otherwise, ON DEMAND by the Bank. The interest rate hereunder shall change as
and when the Base Rate changes. Interest shall be calculated on the basis of a
360-day year for the actual number of days elapsed including holidays and days
on which the Bank is not open for the conduct of banking business.
SECTION 1. REVOLVING CREDIT; PAYMENT TERMS.
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1-1. ESTABLISHMENT OF REVOLVING CREDIT. The Bank hereby establishes a
revolving line of credit (hereinafter, the "Revolving Credit") in the Borrower's
favor pursuant to which the Bank shall make loans and advances and otherwise
provide financial accommodations to and for the account of the Borrower as
provided herein. The amount of the Revolving Credit shall be an amount equal to
One Million Dollars ($1,000,000.00) (the "Revolving Credit Amount"). All loans
made by the Bank under this Note, and all of the Borrower's other Obligations
(as defined below) to the Bank under or pursuant to this Note, are payable the
earlier of: (i) DEMAND by the Bank, and (ii) October 24, 1998. Prior to October
24, 1998 or the making of DEMAND hereunder, whichever is earlier, the Borrower
may request financial accommodations in an amount equal to the Revolving Credit
Amount, less any outstanding advances hereunder, the aggregate amounts then
undrawn on all outstanding letters of credit, acceptances, or any other
accommodations issued or incurred by the Bank for the account and/or benefit of
the Borrower.
1-2. PROCEDURES FOR BORROWING.
(a) The Borrower may request loans pursuant to the Revolving Credit
from time to time hereafter in accordance with the procedures set forth in
Section 1-2(b), below. At the time of each loan made under or pursuant to this
Note, the Borrower shall immediately become indebted to the Bank for the amount
thereof.
(b) The Borrower may request loans under the Revolving Credit in
multiples of One Hundred Thousand Dollars ($100,000.00) in such manner as may
from time to time be acceptable to the Bank, and which may include, without
limitation, (i) telephone notice to such person as may be designated by the Bank
or (ii) written notice.
(c) Upon the making of any request by or on behalf of the Borrower
for a loan, advance, or credit under the Revolving Credit, the Borrower shall be
deemed to have certified that as of the date of such request, the following
representations above, are each true and correct:
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(i) there has been no material adverse change in the
Borrower's financial condition from the most recent financial information
furnished the Bank pursuant to this Note; and
(ii) the Borrower is in compliance with, and has not
breached any of, its covenants contained in this Note; and
(iii) no Suspension Event (as that term is defined herein) is
then occurring; and
(iv) no event has occurred nor failed to occur which
occurrence or failure is, or with the passage of time or giving of notice
(or both), would constitute, an Event of Default (as described herein),
whether or not the Bank has exercised any of its rights upon such
occurrence or failure.
(c) As used herein, the term "Suspension Event" means and refers to any
occurrence (A) which is an Event of Default or (B) which would become an
Event of Default if the notice and/or the running of the period of time
specified for that occurrence were to be given and/or were to run and such
occurrence were not cured within any applicable grace period, if any.
1-3. USE OF PROCEEDS. The proceeds from this Note shall be used
solely to fund the working capital requirements of the Borrower.
1-4. PAYMENTS; PREPAYMENTS. All payments hereunder shall be made by the
Borrower to the Bank in United States currency at the Bank's address specified
above (or at such other address as the Bank may specify), in immediately
available funds, on or before 2:00 p.m. (Boston, Massachusetts time) on the due
date thereof. Payments received by the Bank prior to the occurrence of an Event
of Default will be applied FIRST to fees, expenses and other amounts due
hereunder (excluding principal and interest); SECOND, to accrued interest; and
THIRD to outstanding principal. After the occurrence of an Event of Default
payments will be applied to the Obligations under this Note as the Bank
determines in its sole discretion. Unless this Note bears interest at a fixed
rate, the Borrower may pay all or a portion of the amount owed earlier than it
is due without penalty. If this Note is payable in installments, prepayments
shall be applied to installments of principal in the inverse order of the date
on which they become due. AMOUNTS PREPAID MAY BE REBORROWED AT ANY TIME.
1-5. DEFAULT RATE. To the extent permitted by applicable law, upon and
after the Bank has made DEMAND on this Note, interest on principal and overdue
interest shall, at the option of the Bank, be payable at a rate per annum (the
"Default Rate") equal to three percent (3.0%) per annum above the rate of
interest otherwise payable hereunder.
1-6. LATE PAYMENT CHARGE. Without limitation of the foregoing Section 1.5,
if a payment of principal or interest hereunder is not made on its due date, the
Borrower shall pay a late charge equal to two percent (2.0%) of any payment not
made when due. Nothing in the preceding sentence shall affect the Bank's right
to make DEMAND at any time on this Note.
1-7. DEPOSIT ACCOUNT. The Borrower shall maintain with the Bank a
commercial demand deposit account. The Borrower requests and authorizes the
Bank to debit such account in an amount equal to the amount of principal,
interest, fees, charges or expenses due and payable under the terms of this
Note on each date such amounts become due and payable. The Borrower shall
maintain sufficient collected balances in this account to pay any such amounts
as they become due.
1-8. REPAYMENTS. In the event that the amount of the Revolving Credit
Amount decreases below the then principal balance of such loans, the Borrower
shall immediately pay to the Bank the amount by which such principal balance
exceeds the Revolving Credit Amount.
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1-9. STATEMENTS RENDERED BY BANK. Any statement rendered by the Bank to
the Borrower concerning the Obligations shall be considered correct and accepted
by the Borrower and shall be conclusively binding upon the Borrower unless the
Borrower provides the Bank with written objection thereto within twenty (20)
days from the mailing of such statement, which written objection shall indicate,
with particularity, the reason for such objection. The Bank's books and records
concerning the loan arrangement contemplated herein and the Borrower's
Obligations shall be prima facie evidence and proof of the items described
therein.
SECTION 2. DEFAULTS AND REMEDIES.
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2-1. DEFAULT. The occurrence of any of the following events or
conditions shall constitute an "Event of Default" hereunder:
(a) (i) default in the payment when due of the principal of or
interest on this Note or (ii) any other default in the payment or performance of
this Note or of any other Obligation or (iii) default in the payment or
performance of any obligation of the Borrower to others for borrowed money or in
respect of any extension of credit or accommodation or under any lease;
(b) failure of any representation or warranty of the Borrower
hereunder or under any agreement or instrument constituting or relating to any
collateral for the Obligations or of any representation of warranty, statement
or information in any documents or financial statements delivered to the Bank in
connection herewith to be true and correct;
(c) failure to furnish the Bank promptly on request with financial
information about, or to permit inspection by the Bank of any books, records and
properties of, the Borrower;
(d) default or breach of any condition under any mortgage, security
agreement, assignment of lease, or other agreement securing or otherwise
relating to any collateral for the Obligations, including, without limitation, a
certain Pledge Agreement between Borrower and Bank of even date;
(e) the Borrower generally not paying its debts as they become
due;
(f) death, dissolution, termination of existence, insolvency,
appointment of a receiver or other custodian of any part of the property of,
assignment for the benefit of creditors by, or the commencement of any
proceedings under any bankruptcy or insolvency laws by or against, or any change
in control of the Borrower; or
(g) change in the condition or affairs (financial or otherwise) of
the Borrower which in the opinion of the Bank will increase its risk.
The occurrence of an Event of Default hereunder shall constitute an Event of
Default under all other loan arrangements between the Borrower and the Bank.
2-2. REMEDIES. Upon DEMAND made by the Bank (whether or not an Event of
Default has occurred), all Obligations of the Borrower shall become immediately
due and payable without notice and, if the Obligations are secured, the Bank
shall then have in any jurisdiction where enforcement hereof is sought, in
addition to all other rights and remedies provided by agreement or at law or in
equity, the rights and remedies of a secured party under the Uniform Commercial
Code of Massachusetts. All rights and remedies of the Bank are cumulative and
are exclusive of any rights or remedies provided by law or any other agreement,
and may be exercised separately or concurrently.
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SECTION 3. DEFINITIONS.
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For purposes of this Note, the following definitions shall apply:
"Base Rate" means the higher of (a) the annual rate of interest announced
from time to time by the Bank at its head office in Boston, Massachusetts as its
"base rate" and (b) one half of one percent (1/2%) above the overnight federal
funds effective rate as published by the Board of Governors of the Federal
Reserve System, as in effect from time to time;
"Obligation" means any obligation hereunder or otherwise of the Borrower
to the Bank or to any of its Affiliates, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising; and
"Obligor" means the Borrower, any guarantor or any other person primarily
or secondarily liable hereunder or in respect hereof, including any person or
entity who has pledged or granted to the Bank a security interest or other lien
in property on behalf of the Borrower to constitute collateral for the
Obligations.
SECTION 4. MISCELLANEOUS.
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4-1. DUE ORGANIZATION AND CORPORATE AUTHORIZATION. The Borrower presently
is and shall hereafter remain in good standing as a corporation in that State in
which it was incorporated and is and shall hereafter remain duly qualified and
in good standing in every other State in which, by reason of the nature or
location of the Borrower's assets or operation of the Borrower's business, such
qualification may be necessary. The execution and delivery of this Note and of
any other documents, instruments, and agreements executed in connection herewith
constitute representations by the individual signing this Note and said
instruments and by the Borrower that such execution and delivery have received
all such corporate authorization as may be necessary to permit such execution
and delivery to, and that they do, bind the Borrower.
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4-2. WAIVER; AMENDMENT. 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 under this Note. No waiver of any right or amendment hereto shall be
effective unless in writing and signed by the Bank nor shall a waiver on one
occasion be construed as a bar to or waiver of any such right on any future
occasion. Without limiting the generality of the foregoing, the acceptance by
the Bank of any late payment shall not be deemed to be a waiver of the Event of
Default arising as a consequence thereof. Each Obligor waives presentment,
demand, notice, protest, and all other demands and notices in connection with
the delivery, acceptance, performance, default or enforcement of this Note or of
any collateral for the Obligations, and assents to any extensions or
postponements of the time of payment or any and all other indulgences under this
Note or with respect to any such collateral, to any and all substitutions,
exchanges or releases of any such collateral, or to any and all additions or
releases of any other parties or persons primarily or secondarily liable
hereunder, which from time to time be granted by the Bank in connection herewith
regardless of the number or period of any extensions.
4-3. SECURITY; SET-OFF. The Borrower grants to the Bank, as security for
the full and punctual payment and performance of the Obligations, a continuing
lien on and security interest in all securities or other property belonging to
the Borrower now or hereafter held by the Bank and in all deposits (general or
special, time or demand, provisional or final) and other sums credited by or due
from the Bank to the Borrower or subject to withdrawal by the Borrower; and
regardless of the adequacy of any collateral or other means of obtaining
repayment of the Obligations, the Bank is hereby authorized at any time and from
time to time, without notice to the Borrower (any such notice being expressly
waived by the Borrower) and to the fullest extent permitted by law, to set off
and apply such deposits and other sums against the Obligations of the Borrower,
whether or not the Bank shall have made any demand under this Note and although
such Obligations may be contingent or unmatured.
4-4. EXPENSES. The Borrower will pay on demand all reasonable expenses of
the Bank in connection with the preparation, default, collection or enforcement
of this Note or any collateral for the Obligations, or any waiver or amendment
of any provision of any of the foregoing, including, without limitation,
attorneys fees of outside legal counsel, and including, without limitation, any
fees or expenses associated with any travel, and the amount of all such expenses
shall, until paid, bear interest at the rate applicable to principal hereunder
(including any default rate) and be an Obligation secured by such collateral.
4-5. BANK RECORDS. The entries on the records of the Bank (including
any appearing on this Note) shall be prima facie evidence of the aggregate
principal amount outstanding under this Note and interest accrued thereon.
4-6. FINANCIAL INFORMATION. The Borrower shall furnish the Bank from time
to time with such financial statements and other information relating to the
Borrower as the Bank may require. Financial information about the Borrower
furnished to the Bank shall be true and correct and fairly represent the
financial condition of the Borrower as of the date(s) furnished and the
operating results of the Borrower for the periods for which the same are
furnished. The Borrower shall permit representatives of the Bank to inspect its
books and records, and to make copies or abstracts thereof.
4-7. GOVERNING LAW, CONSENT TO JURISDICTION. This Note is intended to take
effect as a sealed instrument and shall be governed by, and construed in
accordance with, the laws of The Commonwealth of Massachusetts, without regard
to its conflicts of laws rules. The Borrower agrees that any suit for the
enforcement of this Note may be brought in the courts of The Commonwealth of
Massachusetts or any Federal Court sitting in such Commonwealth and consents to
the non-exclusive jurisdiction of each such court and to service of process in
any such suit being made upon the Borrower by mail at the address specified
below. The Borrower hereby waives any objection that it may now or hereafter
have to the venue of any such suit or any such court or that such suit was
brought in an inconvenient court.
4-8. SEVERABILITY; AUTHORIZATION TO COMPLETE; PARAGRAPH HEADINGS. If any
provision of this Note shall be invalid, illegal or unenforceable, such
provisions shall be severable from the remainder of this Note and the validity,
legality and enforceability of the remaining provisions shall not in any way
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be affected or impaired thereby. Paragraph headings are for the convenience of
reference only and are not a part of this Note and shall not affect its
interpretation.
4-9. JURY WAIVER. THE BANK (BY ITS ACCEPTANCE OF THIS NOTE) AND THE
BORROWER AGREE THAT NEITHER OF THEM, INCLUDING ANY ASSIGNEE OR SUCCESSOR SHALL
SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER
LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF, THIS NOTE, ANY RELATED
INSTRUMENTS, ANY COLLATERAL OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG
ANY OF THEM. NEITHER THE BANK NOR THE BORROWER SHALL SEEK TO CONSOLIDATE ANY
SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY THE
BANK AND THE BORROWER, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
NEITHER THE BANK NOR THE BORROWER HAS AGREED WITH OR REPRESENTED TO THE OTHER
THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
4-10. DEMAND NATURE OF OBLIGATIONS. The Borrower acknowledges and agrees
that all principal, interest and other fees, charges, costs and expenses now or
hereafter advanced, accrued or otherwise outstanding or owing pursuant to this
Note are payable ON DEMAND. NOTWITHSTANDING ANY PROVISION CONTAINED IN ANY OTHER
DOCUMENT TO THE CONTRARY, THE BANK'S RIGHT TO MAKE DEMAND IS UNCONDITIONAL AND
UNLIMITED. Provisions contained in this Note providing times or schedules for
periodic payments are intended to govern payments hereunder unless and until
demand for payment is made. The Borrower hereby acknowledges and agrees that the
occurrence or continuance of any event of default or any failure by the Borrower
to observe or perform any covenant or agreement contained in this Note or in any
other instrument, document or agreement securing or otherwise entered into in
connection with this Note shall not be required in order to make any such
demand. The Borrower agrees that the Bank may make demand, at any time, in the
exercise of Bank's sole discretion, for immediate payment of any or all
principal, interest and other fees, charges, costs and expenses now or hereafter
outstanding under this Note, notwithstanding timely payments by the Borrower in
accordance with the times and schedules for payments hereunder, and whether or
not any such default or failure has occurred. The Borrower agrees that, in
exercising its discretion, the Bank may make demand for any reasons which it
deems appropriate, and such reasons may be related or unrelated to the Borrower,
its business or financial condition or prospects. The Bank's right to make
demand is a continuing right, and acceptance by the Bank of any payment after
demand shall not be deemed a waiver of such right to make demand on any other
occasion.
Witness: BITSTREAM INC.
By: /s/ Xxxx X. Xxxxxxx
/s/ Xxxx Xxxxxxxxxx --------------------
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Name: Xxxx Xxxxxxx
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Title: Vice President, Finance
And Administration
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