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EXHIBIT 10.15.3
EQUIPMENT TERM NOTE NO. 2 OF 2
Not to Exceed $1,000,000 Rockville, Maryland
As of April 5, 1999
FOR VALUE RECEIVED, the undersigned, VISUAL NETWORKS TECHNOLOGIES,
INC., a California corporation, VISUAL NETWORKS OPERATIONS, INC., a Delaware
corporation, VISUAL NETWORKS INVESTMENTS, INC., a California corporation, VISUAL
NETWORKS, INC., a Delaware corporation, VISUAL NETWORKS PROTECTION, INC., a
Vermont corporation and VISUAL NETWORKS OF TEXAS, L.P., a Texas limited
partnership (each a "Borrower" and collectively, the "Borrowers") jointly and
severally promise to pay to the order of SILICON VALLEY BANK, a
California-chartered bank, doing business in Virginia as "Silicon Valley East,
Inc." ("Bank"), at such place as the holder hereof may designate, in lawful
money of the United States of America, the aggregate unpaid principal amount of
all advances ("Equipment Advances") made by Bank to any of the Borrowers in
accordance with the terms and conditions of the Loan and Security Agreement
among Borrowers and Bank of even date herewith (as amended from time to time,
the "Loan Agreement"), up to a maximum principal amount of One Million Dollars
($1,000,000) ("Principal Sum"), or so much thereof as may be advanced. Equipment
Advances may be made under this Note after the Equipment Loan Availability End
Date One and through the Equipment Loan Availability End Date Two.
Borrowers shall pay interest on the outstanding Principal Sum, as
follows:
Commencing as of the date hereof and continuing until repayment in full
of all sums due hereunder, the unpaid Principal Sum shall bear interest as set
forth in the Loan Agreement. All interest payable under the terms of this Note
shall be calculated on the basis of a 360-day year and the actual number of days
elapsed.
The unpaid Principal Sum, together with interest thereon at the rate or
rates provided above, shall be payable as follows:
(a) Interest only on the unpaid Principal Sum shall be due and
payable monthly in arrears, commencing November 5, 1999, and continuing on the
fifth (5th) day of each calendar month thereafter to maturity; and
(b) In addition to the monthly payments of interest as set forth
above, the unpaid Principal Sum shall be due and payable in equal consecutive
monthly installments in an amount equal to one-thirty-sixth (1/36) of the unpaid
Principal Sum as of the Equipment Loan Availability End Date Two, commencing on
May 5, 2000 and continuing on the fifth day of each calendar month thereafter to
maturity; and
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(c) Unless sooner paid, the unpaid Principal Sum, together with
interest accrued and unpaid thereon, shall be due and payable in full on April
5, 2003.
This Note may be prepaid in accordance with the Loan Agreement.
This Note is the "Equipment Term Note No. 2" described in the Loan
Agreement, to which reference is hereby made for a more complete statement of
the terms and conditions under which the loans and advances evidenced hereby are
made. This Note is secured as provided in the Loan Agreement. All capitalized
terms used herein and not otherwise defined shall have the meanings given to
such terms in the Loan Agreement.
After an Event of Default, each Borrower irrevocably waives the right
to direct the application of any and all payments at any time hereafter received
by Bank from or on behalf of the Borrowers and the Borrowers irrevocably agree
that Bank shall have the continuing exclusive right to apply any and all such
payments against the then due and owing joint and several obligations of the
Borrowers as Bank may deem advisable. In the absence of a specific determination
by Bank with respect thereto, all payments shall be applied in the following
order: (a) then due and payable fees and expenses; (b) then due and payable
interest payments and mandatory prepayments; and (c) then due and payable
principal payments and optional prepayments.
Bank is hereby authorized by Borrowers to endorse on Bank's books and
records each Equipment Advance made by Bank under this Note and the amount of
each payment or prepayment of principal of each such Advance received by Bank;
it being understood, however, that failure to make any such endorsement (or any
error in notation) shall not affect the joint and several obligations of
Borrowers with respect to Equipment Advances made hereunder, and payments of
principal by Borrowers shall be credited to Borrowers notwithstanding the
failure to make a notation (or any errors in notation) thereof on such books and
records.
The occurrence of any one or more of the following events shall
constitute an event of default (individually, an "Event of Default" and
collectively, the "Events of Default") under the terms of this Note:
(a) The failure of Borrowers to pay to Bank within three (3) days
of when due any and all amounts payable by Borrowers to Bank under the terms of
this Note; or
(b) The occurrence of an Event of Default (as defined therein)
under the terms and conditions of any of the other Loan Documents.
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Upon the occurrence of an Event of Default, at the option of Bank, all
amounts payable by Borrowers to Bank under the terms of this Note shall
immediately become due and payable by Borrowers to Bank without notice to
Borrowers or any other Person, and Bank shall have all of the rights, powers,
and remedies available under the terms of this Note, any of the other Loan
Documents and all applicable laws. Each Borrower and all endorsers, guarantors,
and other parties who may now or in the future be primarily or secondarily
liable for the payment of the indebtedness evidenced by this Note hereby
severally waive presentment, protest and demand, notice of protest, notice of
demand and of dishonor and non-payment of this Note and expressly agree that
this Note or any payment hereunder may be extended from time to time without in
any way affecting the joint and several liability of Borrowers, guarantors and
endorsers.
Upon the occurrence of an Event of Default, each Borrower hereby
authorizes any attorney designated by Bank or any clerk of any court of record
to appear for each Borrower in any court of record and confess judgment without
prior hearing against each Borrower in favor of Bank for and in the amount of
the unpaid Principal Sum, all interest accrued and unpaid thereon, all other
amounts payable by Borrower to Bank under the terms of this Note or any of the
other Loan Documents, costs of suit, and reasonable attorneys' fees. Each
Borrower hereby releases, to the extent permitted by applicable law, all errors
and all rights of exemption, appeal, stay of execution, inquisition, and other
rights to which Borrower may otherwise be entitled under the laws of the United
States of America or of any state or possession of the United States of America
now in force and which may hereafter be enacted. The authority and power to
appear for and enter judgment against Borrowers shall not be exhausted by one or
more exercises thereof or by any imperfect exercise thereof and shall not be
extinguished by any judgment entered pursuant thereto. Such authority may be
exercised on one or more occasions or from time to time in the same or different
jurisdictions as often as Bank shall deem necessary or desirable, for all of
which this Note shall be a sufficient warrant.
Borrowers jointly and severally promise to pay all costs and expense of
collection of this Note and to pay all reasonable attorneys' fees incurred in
such collection, whether or not there is a suit or action, or in any suit or
action to collect this Note or in any appeal thereof. No delay by Bank in
exercising any power or right hereunder shall operate as a waiver of any power
or right. Time is of the essence as to all obligations hereunder.
This Note is issued pursuant to the Loan Agreement, which shall govern
the rights and obligations of Borrowers with respect to all obligations
hereunder.
Each Borrower acknowledges and agrees that this Note shall be governed
by the laws of the State of Maryland, excluding conflicts of laws principles,
even though for the convenience and at the request of Borrowers, this Note may
be executed elsewhere.
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EACH BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF MARYLAND IN ANY ACTION, SUIT, OR
PROCEEDING OF ANY KIND, AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS
NOTE; PROVIDED, HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF THE
COURTS OF MARYLAND, EACH BORROWER ACCEPTS JURISDICTION OF THE COURTS AND VENUE
IN SANTA XXXXX COUNTY, CALIFORNIA. BORROWERS AND BANK EACH HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE
FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS
NOTE. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH
ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
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IN WITNESS WHEREOF, Borrowers have caused this Note to be executed
under seal by their duly authorized officers or partners, as the case may be, as
of the date first written above.
WITNESS/ATTEST: VISUAL NETWORKS, INC.
/s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX (SEAL)
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
WITNESS/ATTEST: VISUAL NETWORKS OPERATIONS, INC.
/s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX (SEAL)
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Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
WITNESS/ATTEST: VISUAL NETWORKS TECHNOLOGIES, INC.
/s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX (SEAL)
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Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
WITNESS/ATTEST: VISUAL NETWORKS INVESTMENTS, INC.
/s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX (SEAL)
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Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
WITNESS/ATTEST: VISUAL NETWORKS PROTECTION, INC.
/s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX (SEAL)
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Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
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WITNESS/ATTEST: VISUAL NETWORKS OF TEXAS, L.P.
By: Visual Networks Texas Operations, Inc., its
general partner
/s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX (SEAL)
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Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
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