Exhibit 10.54
REVOLVING NOTE
$2,000,000 ___________, _______
February 24, 2004
FOR VALUE RECEIVED, the undersigned, XXXXXX TECHNOLOGIES, INC., a
Delaware corporation and each of the subsidiaries who are now or hereafter
parties to this Note (collectively, "Borrower") jointly and severally promise to
pay to the order of SILICON VALLEY BANK, a California-chartered bank ("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
("Advances") made by Bank to Borrower in accordance with the terms and
conditions of the Export-Import Bank Loan and Security Agreement between
Borrower and Bank of even date herewith (as amended from time to time, the "Loan
Agreement"), up to a maximum principal amount of Two Million Dollars
($2,000,000) ("Principal Sum"), or so much thereof as may be advanced or
readvanced from time to time, and remains unpaid. Borrower may request Advances
under this Note in accordance with the Loan Agreement. The unpaid Principal Sum,
together with interest thereon at the rate or rates provided in the Loan
Agreement, shall be payable as set forth in the Loan Agreement.2
This Note is one of the Loan Documents 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.
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
Xxxxxxxx and Borrower irrevocably agrees that Bank shall have the continuing
exclusive right to apply any and all such payments against the then due and
owing obligations of Borrower 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.
Bank is hereby authorized by Borrower to endorse on Bank's books and
records each 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 obligations of Borrower with respect to Advances
made hereunder, and payments of principal by Borrower shall be credited to
Borrower 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 Borrower to pay to Bank when due any and
all amounts payable by Borrower 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.
Upon the occurrence of an Event of Default, at the option of Bank, all
amounts payable by Borrower to Bank under the terms of this Note shall
immediately become due and payable by Borrower to Bank without notice to
Borrower 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. 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 liability of Borrower, guarantors and endorsers.
This Note is issued pursuant to the Loan Agreement, which shall govern
the rights and obligations of Borrower with respect to all obligations
hereunder.
Xxxxxxxx acknowledges and agrees that this Note shall be governed by
the laws of the State of Georgia, excluding conflicts of laws principles, even
though for the convenience and at the request of Xxxxxxxx, this Note may be
executed elsewhere.
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 GEORGIA IN ANY ACTION, SUIT, OR
PROCEEDING OF ANY KIND, AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS
AGREEMENT; PROVIDED, HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF
THE COURTS OF GEORGIA, XXXXXXXX ACCEPTS JURISDICTION OF THE COURTS AND VENUE IN
SANTA XXXXX COUNTY, CALIFORNIA. BORROWER 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
AGREEMENT. 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.
[SIGNATURES ARE ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Xxxxxxxx has caused this Note to be executed under
seal by its duly authorized officers as of the date first written above.
WITNESS/ATTEST: XXXXXX TECHNOLOGIES, INC.
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxx (SEAL)
------------------------- --------------------------------
Name: Xxxx X. Xxxxxx
Title: VP & General Counsel
WITNESS/ATTEST: XXXXXX IAC , LLC
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxx (SEAL)
------------------------- --------------------------------
Name: Xxxxxx Xxxxx
Title: Manager
WITNESS/ATTEST: DSI, INC.
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxx (SEAL)
------------------------- --------------------------------
Name: Xxxx X. Xxxxxx
Title: VP & General Counsel
WITNESS/ATTEST: XXXXXX SOLUTIONS, INC.
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxx (SEAL)
------------------------- --------------------------------
Name: Xxxx X. Xxxxxx
Title: VP & General Counsel
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AFFIDAVIT REGARDING DELIVERY
(attach to note or other written obligation to pay money)
I, _____________________________ hereby certify that I am a
_________________ of Silicon Valley Bank and that the foregoing Promissory Note
or other written obligation to pay money was delivered to me as a representative
of Silicon Valley Bank in the State of _________, County of _________________ by
_________________ of __________________.
Signature of Officer of Lender
On this the ____ day of ___________, 2004 before me, the undersigned a
Notary Public in and for the State of _________, County of ____________,
personally known to me or proved to me on the basis of satisfactory evidence to
be a ______________ of Silicon Valley Bank, that executed the foregoing
affidavit on behalf of such party and acknowledged to me that such party
executed the foregoing pursuant to its by-laws or a resolution of its board of
directors, said execution taking place in the State of Georgia, County of
___________.
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Notary Signature
My Commission Expires:
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