EXHIBIT 10.4
PROMISSORY NOTE
---------------
U.S. $7,000,000.00 Boston, Massachusetts
As of June 28, 2001
FOR VALUE RECEIVED, the undersigned (the "Borrowers"), jointly and
---------
severally, absolutely and unconditionally promise to pay to the order of Silicon
Valley Bank ("Payee") at the head office of Payee at 0000 Xxxxxx Xxxxx, Xxxxx
-----
Xxxxx, Xxxxxxxxxx 00000:
(a) on June 27, 2002, the principal amount of SEVEN MILLION U.S.
DOLLARS (U.S. $7,000,000.00) or, if less, the aggregate unpaid principal amount
of Loans made by the Payee to the Borrowers pursuant to the Loan and Security
Agreement dated as of June 28, 2001, and as may be amended or supplemented from
time to time (the "Loan Agreement"), by and among the Borrowers and the Payee;
--------------
and
(b) interest on the principal balance hereof from time to time
outstanding from the date hereof through and including the date on which such
principal amount is paid in full, at the times and at the rates provided in the
Loan Agreement.
This Note evidences borrowings under, is subject to the terms and
conditions of and has been issued by the Borrowers in accordance with the terms
of, the Loan Agreement. The Payee and any holder hereof is entitled to the
benefits and subject to the conditions of the Loan Agreement and may enforce the
agreements of the Borrowers contained therein, and any holder hereof may
exercise the respective remedies provided for thereby or otherwise available in
respect thereof, all in accordance with the respective terms thereof.
All capitalized terms used in this Note and not otherwise defined herein
shall have the same meanings herein as in the Loan Agreement.
This Note may be prepaid at any time, without premium or penalty, in whole
or in part. Any prepayment of principal shall be accompanied by a payment of
accrued interest in respect of the principal being prepaid.
If any Event of Default shall occur and be continuing, the Payee may
declare any or all obligations or liabilities of the Borrowers to the Payee
(including the unpaid principal hereunder and any interest due thereon)
immediately due and payable without presentment, demand, protest or notice.
The Borrowers waive presentment, demand, notice, protest and all other
demands and notice in connection with the delivery, acceptance, performance,
default or enforcement of this Note, assent 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.
This Note shall be governed by, and construed in accordance with, the
internal laws of The Commonwealth of Massachusetts, without regard to principles
of conflicts of law. Each of the Borrowers hereby submits to the exclusive
jurisdiction of the state and federal courts located in The Commonwealth of
Massachusetts and in the County of Santa Xxxxx, State of California in
connection with any suit under or in connection with this Note. The Borrowers
irrevocably waive any objection which they may now or hereafter have to the
laying of venue of any such action brought in the courts referred to in the
preceding sentence and irrevocably waive and agree not to plead or claim in any
such action that such action has been brought in an inconvenient forum. THE
BORROWERS 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
BORROWER RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL
INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH BORROWER REPRESENTS AND
WARRANTS THAT IS HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL.
This Note shall be deemed to take effect as a sealed instrument under the
laws of The Commonwealth of Massachusetts and for all purposes shall be
construed in accordance with such laws (without regard to conflicts of laws
rules).
IN WITNESS WHEREOF, the Borrowers have caused this Note to be signed under
seal by their duly authorized officers as of the day and year first above
written.
INT'X.xxx, Inc.
By /s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
Chief Executive Officer
International Language Engineering
Corporation
By /s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
Chief Executive Officer
Harvard Translations, Inc.
By /s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
President
Lionbridge Technologies California, Inc.
By /s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
Chief Executive Officer
