【www.bbjkw.net--合同范本】
借款协议英文篇1:中英文借款协议书
篇一：中英文借款协议
借款协议
Loan Agreement
甲方（出借方）：
Party A (Borrower):
乙方（借款方）：
Party B (Lender):
甲方为乙方股东之一，就甲方借款给乙方相关事宜，经协商一致达成以下协议： PartyＡis one shareholder of Party B, regarding the issue that Party A lend a loan to Party B, after Parties friendly negotiation , agreed as follows:
第一条 借款金额 The amount of the loan
甲方借给乙方人民币______________。甲方所指定的第三人【姓名： 身份证号：】向乙方出借的款项视同出借方本人向乙方的出借款。
Party A lends to Party B. Capital that lending from the 3rd Party (name:ID NO.: ) that designated by Party A would be
regarded as Party A’s lent capital to Party B.
第二条 借款期限
Term of the loan
借款期限自_____ 年__ 月__ 日至_____ 年__ 月__ 日止。
The term shall start from [mm/dd/yyyy] and end to [mm/dd/yyyy].
第三条 借款利率
Lending rate
借款利率为【 】%/30天换算）。 The lending rate should be which would be calculated as actual number of lending days (one month account for 30 days).
第四条 还款方式
Method of repayment
1 / 3
借款期限届满到期一次性还清借款本金及利息。
Party B shall one-time pay off the principal and interest of the loan when the loan period expires.
第五条 协议的生效、变更与终止
Taking effect, modification and termination of the agreement
1. 本协议自乙方将本协议第一条的款项划入甲方指定的账户之日起生效，甲方指定账户信息如下：
This agreement would take effect after Party B transfer the amount of the capital set forth in Article 1 thereof to Party A’s designated bank account; the information of the bank account would as follows:
账户持有人名称（Name of the beneficiary）：
账号(Bank Account Number)：
开户行名称（Name of the Bank）：
开户行地址(Address of the bank)：
2. 本协议自生效后，如须变更，须经双方协商一致并书面签章确认。
After the agreement come into force, if any modification needed, Parties shall have common written confirmation to the modification.
3. 借款期限届满前一个月内，经乙方请求，如甲方同意续借前述借款，则本协议依照原计息方式自动延期一年。
Within one month after expiration of the lending term, if Party A agrees to renew the loan after Party B’s application, the lending term could be automatically extended for one year and remained the original lending rate.
4. 本协议自乙方全额归还借款本金及利息之日起终止。
This agreement would be terminated after PartyＢrepay the total amount of principle and interest to Party A.
第六条 其他
Miscellaneous
1. 本协议如有未尽事宜，甲乙双方经协商一致，可签署补充协议，补充协议与本协议具有同等效力。
Any issue that not covered in this agreement could be settled in the additional agreement after Parties negotiation; the additional agreement has same legal effect as this agreement.
2 / 3
2. 本协议履行过程中如产生纠纷，甲乙双方应通过协商解决，协商不成，任意一方均可向当地有管辖权的人民法院提起诉讼。
For any dispute comes from performance of this agreement, Parties shall firstly resolve the dispute through amicable consultation, if not work, each party has the right to raise a litigation to the jurisdiction court.
3. 本协议一式两份，甲乙各执一份，均具有同等法律效力。
This agreement is in duplicate, each party hold one copy, and each copy has the same legal effect.
甲方（出借方）：
Party A (Borrower):
签章（Signature/chop）
日期：
乙方（借款方）：
Party B (Lender):
签章（Signature/chop）
日期：
3 / 3
篇二：借款合同_中英对照版
借款合同
Loan Contract
贷款方(Lender)： 身份证件号码(ID Number.)：地址(Address)： 电话(Tel)：
借款方(Borrower)： 法定代表人(Representative)：职务(Title)：地址(Address)： 电话(Tel)：
借款方是一家从事以下两种业务的公司：
The Borrower operates two discrete businesses:
1. 生产销售喷砂和抛光研磨纤维石产品；（“砂石品业务）
1. Manufacture and sale of the “spray-stone” and “super-stone” products (“the Stone Business”);
2. 生产销售柳制产品（“柳制品业务”）
2. Manufacture and sale of wicker products (“the Wicker Business”). 现借款方打算停止开展柳制品业务。
The Borrower intends to cease operating the Wicker Business.
借款方因生产经营需要，向贷款方借款。双方本着互惠互利的目的，友好协商，特制订本合同。
For its production and operation, the Borrower intends to borrow money from the Lender. For the mutual benefits, both Parties agree to conclude this Contract.
第一条 借款金额
Article 1 Amount
借款金额280,000美元 (大写：贰拾捌万美元)
US$
贷款方在签订本书面合同之前，已向借款方提供280,000美元贷款。借款方在此确认已经收到贷款方通过银行转账方式提供的280,000美元贷款。
The Lender agrees to advance the Loan US$to the Borrower prior to the signing of this Contract. The Borrower hereby confirms that it has received the Loan US$
第二条 借款用途
Article 2 Scope for Use
本合同所约定的贷款仅用于借款方生产销售砂石品业务，不得挪作它用。
The loan hereof is only for Borrower’s Stone Business and shall not be appropriated for other use.
第三条 利率及还款期
Article 3 Interest and Term
1. 如果借款方在合同约定的还期限内还清借款，贷款方则不收取借款利息。
1. The Lender agrees that no interest will be payable on the Loan for the term of the loan while the Borrower is not in default of repayment.
2. 借款方应按照以下还款期向贷款方偿还借款：
在本合同签订之日起十二个月内偿还借款美元； 在本合同签订之日起二十四个月内偿还借款 美元； 在合同签订之日起三十六个月内偿还借款 美元。
2. The Borrower agrees to repay the Loan to the Lender in accordance with the following repayment schedule:
3. 借款方应根据贷款方合理要求的时间、场所和方式还款。
3. All repayments shall be made at the time and place and in the manner reasonably required by the Lender.
第四条 管理费用
Article 4 Management Fee
1.借款方同意在借款期内，向贷款方支付管理费用，管理费用的金额为借款方砂石品业务销售总额1.4%。
1. The Borrower agrees to pay to the Lender a sum equivalent to of the total income received by the Borrower, from the sales turnover of the Stone Business, during the term of the loan.
2. 借款方同意自每一财务季度结束之日起三十日内向贷款方支付管理费用，付款时间表如下：
每年一月一日至三月三十一日期间的管理费用；
每年四月一日至六月三十日期间的管理费用；
每年七月一日至九月三十日期间的管理费用；
每年十月一日至十二月三十一日期间的管理费用。
2. Subject to clause 4.3 the Borrower agrees to pay the Management Fee to the Lender in arrears on or before the date 30 days following the end of the previous financial quarter in accordance with the following payment schedule:
Management Fee calculated for the period 1 January
借款协议英文篇2:贷款合同书（英文版）
欢迎借鉴与参考文章《贷款合同书(英文版)》，请看下文的详细内容。
This LOAN AGREEMENT, dated as of the later of the two signature dates below, is made by and among AAA CORPORATION ("AAA"), a _________(PLACENAME) Corporation, _________(address) ("Lender"), and BBB CORPORATION ("BBB"), a _________(PLACENAME) corporation, _________(address) ("Borrower").
RECITALS
A. Borrower develops and markets computer software products, including without limitation a "search engine" software for searching and indexing information accessible through the Internet.
B. Lender develops, manufactures, distributes and markets computer software products and services.
C. Borrower and Lender desire to enter into a business relationship pursuant to which, among other things, (i) Borrower would (a) develop software for Lender to implement desired features for a Lender search engine, (b) provide search results for Lender using Borrower"s search engine customized with, among other elements, the features developed for Lender, (c) provide software hosting and maintenance services for Lender"s benefit, and (d) purchase additional hardware and software necessary or desirable to service Lender"s needs, and (ii) Lender would make certain payments to Borrower, and provide loans to Borrower to facilitate Borrower"s purchase of additional hardware and software necessary or desirable to service Lender"s needs.
D. This Loan Agreement and a Security Agreement between the parties of even date, are intended to set forth the terms and conditions applicable to the loan aspects of such business relationship.
NOW THEREFORE, for and in consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:
AGREEMENTS
1. Loan to Borrower. Pursuant to the terms and conditions of that certain Software Hosting Agreement between Borrower and Lender of even date herewith (the "Hosting Agreement"), Borrower may be required, after consultation with and approval by Lender, to purchase additional Hosting Servers, as that term is defined in the Hosting Agreement. Subject to the terms and conditions of this Agreement, Lender shall from time to time make advances ("Advances") to Borrower during the period from the date hereof until the termination of this Agreement. In no event shall Lender have any obligation to make Advances to Borrower following the occurrence of any Event of Default as defined in section 11 of this Agreement.
A. Advances. Advances shall be made only in amounts separately agreed between Lender and Borrower to be sufficient to purchase the additional Hosting Servers required by Lender. Each such Advance shall be evidenced by a promissory note (the "Promissory Note") with a term of [*] ([*]) [*] in substantially the form of the sample note attached hereto as Exhibit A. The terms of all such Promissory Notes are by this reference incorporated in this Agreement. The proceeds of each Advance shall only be used by Borrower to purchase the additional Hosting Servers for which that Advance is made.
B. Persons Authorized. Lender is hereby authorized by Borrower to make Advances only upon the written requests (including requests made by telex, telegraph or facsimile), of any one of the following persons (the "Responsible Officers" and each a "Responsible Officer"): Dave Peterschmidt, Jerry Kennelly and Randy Gottfried; each of whom is and shall be authorized to request Advances and direct the disposition of any Advance until written notice by Borrower of the revocation of such authority is received by Lender. Any Advance shall be conclusively presumed to have been made to or for the benefit of Borrower when made in accordance with such a request. Requests for Advances shall be on the Borrowing Notice form attached hereto as Exhibit B. Any such Borrowing Notice shall be directed to the following Lender representative (or such other person as Lender may direct from time to time) for approval prior to disbursement: Shirish Nadkarni.
C. Assumption of Risk. It is important to Borrower that Borrower have the privilege of making requests for Advances by e mail, telex, telegraph or facsimile. Therefore, to induce Lender to lend funds in response to such requests, and in consideration for Lender"s agreement to receive and consider such requests, BORROWER ASSUMES ALL RISK OF THE VALIDITY, AUTHENTICITY AND AUTHORIZATION OF SUCH REQUESTS, WHETHER OR NOT THE INDIVIDUAL MAKING SUCH REQUEST HAS AUTHORITY IN FACT TO REQUEST ADVANCES ON BEHALF OF BORROWER. UNLESS AN UNAUTHORIZED OR INVALID ADVANCE IS MADE AS A RESULT OF GROSS NEGLIGENCE ON THE PART OF LENDER, LENDER SHALL NOT BE RESPONSIBLE, UNDER PRINCIPLES OF CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS SUSTAINED BY BORROWER RESULTING FROM ANY UNAUTHORIZED OR INVALID ADVANCE, INCLUDING, BUT NOT LIMITED TO, THE AMOUNT OF ANY ADVANCE. Borrower agrees to repay any sums, with interest as provided herein, that Lender so advances. Borrower agrees to give Lender prompt written confirmation of all e mail, telex, telegraph or facsimile requests for Advances; but Borrower"s failure to do so, or the failure of such confirmation to reach Lender, shall not affect Borrower"s assumption of the risk with respect to such Advance or reduce in any way the obligation of Borrower to repay with interest all amounts theretofore or thereafter advanced by Lender pursuant thereto.
D. Request for Advance. Each request for an Advance shall set forth the amount of such Advance and the date such Advance is to be made, such request to be received by Lender by 9:30 a.m., _________(PLACENAME), WA, USA time ten (10) full business days before such Advance is to be made. Any proposed Advance shall be made and effected only on a business day and may be disbursed only after a separate Promissory Note for such Advance is properly executed by Borrower, and delivered to and accepted by Lender. If the date of the proposed Advance is not a business day, such Advance shall be effected on the next succeeding business day. Each request for an Advance shall be irrevocable and binding on Borrower.
E. Disbursement of Advances. Advances made and effected by Lender shall be disbursed by wire transfer in immediately available funds to the depository account set forth in Exhibit E hereto, or such other account as Borrower may designate from time to time by written notice to Lender signed by a Responsible Officer.
2. Term and Termination. This Agreement shall terminate upon the termination of the Hosting Agreement ("Maturity Date"); provided that all rights and remedies to which Lender is entitled under this Agreement and at law shall survive any such termination of the Agreement until all amounts advanced or otherwise due Lender under this Agreement have been repaid or otherwise satisfied according to the terms of this Agreement.
3. Interest. The outstanding principal balance of the Loan shall bear interest at the lowest appropriate applicable federal rate, as determined by AAA, when each Promissory Note (or the New Note described in section 4) is issued. All computations of interest shall be based on a 360 day year for the actual number of days passed.
4. Payment of Principal and Interest.
A. Monthly Payments. Payment of principal and interest for each Advance shall be made in immediately available funds, by 10:00 a.m., _________(PLACENAME) time, at such location designated by Lender or the holder of the applicable Promissory Note, on the date each payment is due as provided in the Promissory Note. The payments of principal and interest shall be separately calculated for each Advance and shall be payable in immediately available funds on the first business day of each month until paid in full. Each installment payment shall be in an amount sufficient to cause the principal balance of each Advance to be repaid within three years. Notwithstanding the foregoing, any amounts accrued but not paid at the time of termination of this Agreement shall be payable or otherwise satisfied in accordance with the following subsections.
B. Roll over or Acceleration. Upon expiration or termination of this Agreement:
(i) If this Agreement is terminated due to the mutual agreement of the parties, due to termination of the Hosting Agreement by Lender pursuant to section 10.2 of the Hosting Agreement, or due to termination of the Hosting Agreement by Borrower pursuant to section 10.1 of the Hosting Agreement, then immediately prior to the effective date of such termination Lender shall cancel all outstanding Promissory Notes and Borrower shall simultaneously execute a new promissory note ("New Note") for all outstanding principal, interest and other amounts under such Promissory Notes owed or owing to Lender by Borrower on that date, in substantially the form attached as Exhibit C satisfying and replacing all outstanding Advances and other amounts due under this Agreement. A New Note issued pursuant to this subsection shall carry the same interest rate and be subject to the same terms and conditions as all Advances under this Agreement, except that the term of the New Note shall be two (2) years, and each installment payment shall be in an amount sufficient to cause the principal balance of the New Note to be repaid within two (2) years. Installment payments for the New Note shall be made in immediately available funds, by 10:00 a.m., _________(PLACENAME) time, at such location designated by Lender or the holder of the New Note, on the date each payment is due as provided in the New Note. Prior to execution of the New Note, Borrower shall satisfy all conditions precedent and make all representations and warranties required for Advances under this Agreement.
(ii) If termination of this Agreement is due to any other reason (other than due to a material breach of this Agreement or the Hosting Agreement by Lender), such termination shall be considered an Event of Default and subject to any and all remedies available to Lender for an Event of Default as provided in section 12 of this Agreement.
C. Prepayment. Borrower may prepay each Advance in whole or in part, at any time without penalty. Any repayments of the amounts due under this Loan Agreement shall be made in immediately available funds and shall be applied first against any amounts owed to Lender under the Security Agreement, then to the payment of past due interest on any outstanding Advance, and any remaining amount shall reduce the outstanding principal amount of each Advance.
5. Overdue Payments; Default Rate. If any amount due under this Agreement is not paid when and as due, such amount shall bear interest from the date such payment was due until and including the date such payment is received by Lender at a rate per annum equal to eighteen percent (18 %) per annum (the "Default Rate"), provided that in no event shall the rate of interest exceed that permitted by applicable law.
6. Security for the Loan. This Loan is secured by a purchase money security interest in the Hosting Servers purchased by each Advance, pursuant to the terms of a security agreement of even date ("Security Agreement"). Lender shall have a first priority security interest in all of the collateral described in the Security Agreement (the "Collateral").
7. Representations and Warranties. Borrower hereby represents and warrants to Lender as follows:
A. Corporate Existence. Borrower is a corporation, duly organized and validly existing, in good standing under the laws of its state of incorporation, and is duly authorized and qualified under all applicable laws, regulations, ordinances and orders of public authorities to carry on such business in any state or county where such qualification is necessary and to own and hold property.
B. Corporate Power. Borrower has full right, power and authority to enter into and perform this Agreement, each Promissory Note, the New Note, and the Security (collectively, the "Documents"), and to grant all of the rights granted and agreed to be granted pursuant to this Agreement and the Documents.
C. Authorization. Borrower has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement and the other Documents, including but not limited to, all necessary corporate action required by its articles of incorporation and bylaws.
D. No Conflict, Violation or Consent Required. The execution, delivery and performance of, and the compliance with the provisions of each of the Documents do not and will not violate any provision of an applicable law or any provision of Borrower"s articles of incorporation and bylaws, and will not conflict with, require consent under any provision of, result in any breach of any of the terms, conditions or provisions of, result in the creation or imposition of any lien, charge or encumbrance upon any of the properties or assets of Borrower pursuant to the terms of, or constitute a default under or conflict with, any other indenture, contract, mortgage, deed of trust or other agreement or instrument to which Borrower is a party or by which Borrower is bound. Borrower shall not enter into other contractual obligations which will restrict or impair its obligations under this Agreement or any other Document.
E. Binding Effect. This Agreement constitutes, and the Promissory Note and each of the other Documents, when executed and delivered by Borrower, will constitute, valid obligations of Borrower and are binding and enforceable against Borrower in accordance with their respective terms, except as hereafter may be limited by applicable bankruptcy, insolvency, reorganization, or similar laws affecting the enforcement of creditor"s rights and the availability of specific performance.
F. Familiarity With Terms. Borrower is fully familiar with all of the terms, covenants and conditions of the Documents.
G. Legal Proceedings. Except as disclosed on Schedule 1 attached hereto, there is no action, suit or proceeding pending or, to the knowledge of Borrower, threatened, at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that might result in a material adverse change in Borrower"s ownership or title to any of the Collateral or in its financial condition or operations. As used in this subsection, the phrase "to the knowledge of Borrower" shall mean the current actual knowledge of the executive officers and directors of Borrower.
H. No Governmental Approvals. No registration with or approval of any governmental agency or commission is necessary for the due execution and delivery of any of the Documents or for the validity or enforceability thereof with respect to any obligation of Borrower hereunder or thereunder, except acts to be performed by Lender in order to perfect Lender"s security interest in the Collateral.
I. Liens and Encumbrances. Borrower shall keep the Collateral purchased with each Advance free and clear of all liens, claims, encumbrances and rights of others and at the request of Lender from time to time, shall obtain an agreement, in a form satisfactory to Lender in its sole discretion, from any of its general creditors or lien holders to subordinate their interests in the Collateral to Lender"s interest pursuant to this Agreement and the Security Agreement.
J. Compliance With Laws. Borrower has complied with all laws, regulations, ordinances and orders which affect in any material respect its right to carry on its operations, perform its obligations under the Documents or meet its obligations in the ordinary course of business.
K. Outstanding Debt. There exists no default under the provisions of any agreement or instrument evidencing any outstanding indebtedness of Borrower and/or its subsidiaries to any party or any material agreement to which Borrower and/or its subsidiaries is currently a party.
L. Disclosure. This Agreement does not contain any untrue statement of a material fact and does state all material facts necessary in order to make the statements contained herein not misleading in light of the circumstances under which they were made. There is, to the knowledge of Borrower, no fact that would materially adversely affect its business, prospects, condition, affairs or operations or any of its properties or assets.
M. No Consents. The execution, delivery and filing of the Security Agreement and any financing statements, and the creation of the lien, mortgage, encumbrance, preference or security interest contemplated thereby, will not require the consent or approval of any person or entity not a party to this Agreement.
N. Perfection of Liens and Security Interest. As of the date hereof, Lender will have a valid and perfected first priority lien on and security interest in all of the Collateral (whether now owned or hereafter acquired), which lien and security interest will be enforceable against the applicable grantor thereof and all third parties and will secure the obligations stated therein. All filings, recordations and other actions necessary under any laws to perfect and protect such liens and security interests as first priority liens and security interests in the Collateral have been, or will on the Closing Date be, duly taken.
8. Affirmative Covenants. Until all amounts owed under the Documents have been paid in full or otherwise satisfied under the terms of this Agreement, Borrower, at its own expense, covenants and agrees at all times to comply with the terms of this paragraph 8.
A. Financial Information.
(i) Borrower shall furnish or cause to be furnished to Lender, as soon as practicable and in any event within forty five (45) days after the close of each fiscal quarter, the following unaudited financial statements of Borrower for each such quarter, all in reasonable detail and certified by a Responsible Officer of Borrower to be true and correct: balance sheet, statement of income, and statement of cash flows.
(ii) Borrower shall furnish or cause to be furnished to Lender, as soon as the same are available, and in any event within ninety (90) days after the end of each of each fiscal year Borrower"s consolidated balance sheet, statement of income and a statement of cash flows, all as of the end of such fiscal year (together, in each case, where applicable, with the comparable figures for the prior fiscal year), all in reasonable detail. Annual consolidated financial statements shall be prepared and audited (without any qualification or exception deemed material by Lender) in accordance with generally accepted accounting principles applied on a basis consistently maintained throughout the period involved (except as disclosed in the notes to the financial statements) by independent certified public accountants of recognized national standing or otherwise reasonably acceptable to Lender.
(iii) Concurrently with the information described in (i) and (ii) above, a certificate of a Responsible Officer of Borrower stating that the consolidated financial statements delivered to Lender are properly stated and that there exists no Event of Default, or event which with notice or lapse of time, or both, would constitute an Event of Default, or, if any such event exists, specifying the nature and period of existence thereof and what action Borrower proposes to take with respect thereto.
(iv) Borrower shall also furnish or cause to be furnished, from time to time, such additional financial and other information as Lender may reasonably request in order to monitor the financial condition of Borrower.
B. Notice of Default. Immediately upon obtaining knowledge of the occurrence of any event that constitutes an Event of Default, or that with notice or lapse of time, or both, would constitute an Event of Default, Borrower shall give written notice thereof to Lender, together with a detailed statement of the steps being taken by Borrowers to cure such event.
C. Maintenance of Existence. Borrower shall cause to be done all things necessary to maintain and preserve the corporate existence, rights and franchises of Borrower and shall comply with all related laws applicable to Borrower and/or its subsidiaries.
D. Payment of Taxes. Borrower shall pay, indemnify and hold Lender harmless from (i) all taxes, assessments and charges lawfully levied or imposed by the United States, any state or local government, any taxing authority or any political or governmental subdivision of any foreign country on or with respect to the Collateral or any part thereof, and (ii) any other claims which, if unpaid, might become by law a lien upon Borrower"s property; except, and only to the extent that any such taxes, assessments, charges or claims are being contested in good faith (and for the payment of which adequate reserves have been provided) by appropriate proceedings conducted diligently and in good faith so long as such proceedings do not involve a material danger of the sale, forfeiture or loss of all or a material portion of the Collateral.
E. Maintenance of Property and Leases. Borrower shall keep its properties in good repair and condition, reasonable wear and tear excepted, and from time to time make all necessary and proper repairs, renewals, replacements, additions and improvements thereto. Borrower shall at all times comply with the provisions of all leases to which it is a party so as to prevent any loss or forfeiture thereof or thereunder.
F. Insurance. Borrower shall maintain with responsible companies reasonably acceptable to Lender liability insurance and insurance with respect to the Collateral in amounts and covering risks as is customary among companies engaged in businesses similar to that of Borrower. Each liability insurance policy maintained pursuant to this paragraph shall name Lender as additional insured. Each such policy other than liability policies shall name Lender as named insured and loss payee as its interest may appear. The parties agree that such interest of Lender shall be equal to the total of all amounts owed under the Documents to Lender. Borrower shall maintain insurance against any other risks as is customary among companies engaged in businesses similar to that of Borrower. All required insurance shall (a) be in form and amount reasonably satisfactory to Lender and (b) contain a Lender"s Loss Payable Endorsement. Each insurer shall agree by endorsement upon the policies issued by it, or by independent instrument furnished to Lender, that it will give Lender thirty (30) days written notice before the policy is materially altered or canceled. The proceeds of any public liability policy shall be payable first to Lender to the extent of its liability, if any, and the balance shall be payable to Borrower. Borrower hereby irrevocably appoints Lender as Borrower"s attorney in fact to make claim for, receive payment of, and execute and endorse all documents, checks or drafts for loss or damage under any insurance policy.
G. Notice of Litigation. Borrower shall promptly notify Lender in writing of the initiation of any litigation against Borrower that in Borrower"s good faith judgment might materially and adversely affect the operations, financial condition, property or business of Borrower. If any suit is filed against any of the Collateral or if any of the Collateral is otherwise attached, levied upon or taken in custody by virtue of any legal proceeding in any court, Borrower shall promptly notify Lender thereof by telephone, confirmed by letter, and within sixty (60) days (unless otherwise consented to in writing by Lender) cause the Collateral to be released and promptly notify Lender thereof in the manner aforesaid.
H. Accounts and Reports. Borrower shall keep true and accurate records and books of account in which full, true and correct entries shall be made of all dealings or transactions in relation to its business and affairs in accordance with generally accepted accounting principles.
I. Compliance With Laws. Borrower shall duly observe and conform to all valid requirements of governmental authorities relating to the conduct of its business or to its property or assets.
J. Inspection. Borrower shall permit Lender or its designated representative, at all reasonable hours upon reasonable advance notice, to visit and inspect Borrower"s properties, offices, facilities and the Collateral, and to examine Borrower"s books of account, solely to monitor the status of the Collateral and financial condition of Borrower. Lender agrees that any such visitation or inspection may be escorted and monitored by Borrower.
K. Filing and Execution of Documents. Borrower shall from time to time do and perform such other and further acts and execute and deliver any and all such further instruments as may be required by law or reasonably requested by Lender to establish, maintain and protect Lender"s security interest in any of the Collateral as provided in this Agreement.
L. Anti forfeiture. Borrower shall not have committed or commit any act or omission affording the federal government or any state or local government the right of forfeiture as against the property of Borrower or any part thereof or any moneys paid in performance of its obligations under this Agreement, any Promissory Note or under any of the other Documents. Borrower covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right of forfeiture. In furtherance thereof, Borrower hereby indemnifies Lender and agrees to defend and hold Lender harmless from and against any loss, damage or injury by reason of the breach of the covenants and agreements or the warranties and representations set forth in the preceding sentence. Without limiting the generality of the foregoing, the filing of formal charges or the commencement of proceedings against Borrower, Lender, or all or any of the property of any Borrower under any federal or state law for which forfeiture of such property or any part thereof or of any moneys paid in performance of any Borrower"s obligations under the Documents shall, at the election of Lender, constitute an Event of Default hereunder without notice or opportunity to cure.
M. Meeting. The Responsible Officers of Borrower (and such other officers and employees of Borrower as Lender may reasonably request) shall meet at least once per year with Lender"s designated representatives to review Borrower"s consolidated financial statements and such other information regarding the operation of Borrower"s business as may be reasonably requested by Lender to monitor the financial condition of Borrower and status of the Collateral.
9. Negative Covenants. Until all amounts owed under this Agreement, the Promissory Note and the other Documents have been paid in full or otherwise satisfied under the terms of this Agreement, Borrower, without the prior written consent of Lender, covenants and agrees that it shall not sell all or any portion of the Collateral, nor relocate the Collateral. Borrower shall not encumber the Collateral, assume any debt secured by the Collateral or subject the Collateral to any unpaid charge or claim of any third party. Lender may give its prior written consent to any sale or encumbrance of any of the Collateral upon the express terms and conditions set forth in such consent of Lender.
10. Conditions Precedent to Loan Advances. Notwithstanding anything contained herein to the contrary, the obligation of Lender to make any Advance to Borrower, is expressly conditioned upon the following:
A. Representations and Warranties. All representations and warranties of Borrower contained in this Agreement, in the Documents and in any certificate or other instrument delivered pursuant to the provisions hereof, or in connection with the transactions contemplated hereby, shall be and remain true and correct in all material respects throughout the term of this Agreement, including without limitation on the date of each request for an Advance with the same force and effect as though such representations and warranties had been made on the date of the Advance.
B. Covenants. Borrower shall have performed and complied with all material terms, covenants and conditions of this Agreement and the Documents to be performed or complied with by it on or before execution of this Agreement or on or before the date of each Advance, as the case may be.
C. No Event of Default. There shall exist no Event of Default, or event which with notice or lapse of time, or both, would constitute an Event of Default, under this Agreement or the other Documents.
D. Subordination of Prior Interests/Release of Liens. If Lender so requests, for any prior security interest, lien or encumbrance in the Collateral or in the general assets of the Borrower"s business, Borrower shall obtain a subordination agreement from its creditor or lien holder in favor Lender or shall obtain the release and discharge of such security interest, lien or encumbrance, including any financing statement or recorded lien filed to perfect such interest, lien or encumbrance.
E. Delivery of Documentation. Borrower, at its sole cost and expense, shall have delivered to Lender the following documents, duly executed by the appropriate party, in form and substance satisfactory to Lender:
(i) the applicable Promissory Note executed by Borrower prior to disbursement of each respective Advance;
(ii) the Security Agreement executed by Borrower on the date of this Agreement;
(iii) the Hosting Agreement executed by Borrower, on the date of this Agreement;
(iv) a certificate of Borrower"s corporate secretary, to be dated as of the date of this Agreement, certifying as true and accurate and in full force and effect as of that date, copies of current resolutions of Borrower"s Board of Directors authorizing (i) Borrower to enter into and perform this Agreement and to execute, deliver and honor and perform the other Documents, and (ii) the persons who have executed or will execute this Agreement, the Promissory Note and the other Documents to do so;
(v) a certificate, as of the most recent date practical, of the secretary of state of Borrower"s state of incorporation as to the good standing of Borrower;
(vi) certificates issued in favor of Lender evidencing the insurance policies required by Lender in accordance with Section 8F hereof;
(vii) UCC financing statements executed by Borrower, in form and substance satisfactory to Lender, evidencing Lender"s security interest in the Collateral designated thereon to be filed in each jurisdiction in which Borrower is or may be doing business;
(viii) officer"s certificates executed by a Responsible Officer of Borrower, dated the purchase date for each purchase of each item of Collateral, certifying that on that date (i) Borrower has good title to all Collateral described in the Security Agreement, (ii) no Event of Default, or event which with notice or lapse of time, or both, would constitute an Event of Default, has occurred, and is continuing, and (iii) the representations and warranties contained in the Documents are true and accurate on and as of that date;
(ix) such other agreements, certificates or other documents as shall be deemed necessary or desirable, in the good faith opinion of Lender or its counsel, in order to fully and completely perfect, preserve or protect Lender"s interests hereunder and Lender"s security interest in the Collateral;
(x) a valid and authorized Borrowing Notice containing a request for an Advance approved by Lender"s designated representative.
11. Events of Default. The occurrence of one or more of the following events (herein called "Events of Default") shall constitute a default under this Agreement.
A. Borrower"s failure to pay any portion of any installment of principal or interest due under any Promissory Note or any other amount under any of the other Documents when and as the same shall become due and payable as therein or herein expressed, if such failure continues for a period of ten (10) days after Lender has notified Borrower (regardless of whether Borrower actually receives such notice) that such payment has not been received;
B. Borrower"s failure to comply with and duly and punctually observe or perform, any of the covenants of Borrower contained in Sections 8B, 8C, 8D, 8E and 8H and Section 9 of this Loan Agreement;
C. Borrower"s failure to maintain insurance as required in accordance with Section 8F hereof; which failure shall continue for a period of ten (10) days after the earlier of the giving of notice of such failure by Lender to Borrower, or the date Lender is notified of such failure by Borrower or should have been so notified pursuant to section 8B hereof.
D. Borrower applies for, consents to or acquiesces in the appointment of a trustee, receiver, liquidator, assignee, sequestrator or other similar official for Borrower or for any of Borrower"s property, or makes a general assignment for the benefit of creditors, or files a petition or an answer seeking reorganization in a proceeding under any bankruptcy law (as now or hereafter in effect) or a readjustment of its indebtedness or an answer admitting the material allegations of a petition filed against it in any such proceeding, or seeks relief under the provisions of any bankruptcy or similar law; or, in the absence of any of the foregoing, a trustee, receiver, liquidator, assignee, sequestrator or other similar official is appointed for Borrower or for a substantial part of any of the property of Borrower and is not discharged within sixty (60) days; or any bankruptcy, reorganization, debt arrangement or other proceeding under any bankruptcy or other insolvency law or common law or in equity is instituted against Borrower and is not dismissed within sixty (60) days; or, in the absence of any of the foregoing, if, under the provisions of any law providing for reorganization or winding up which may apply to Borrower, any court of competent jurisdiction shall assume jurisdiction, custody or control of Borrower or of any substantial part of any of Borrower"s property and such jurisdiction, custody or control shall remain in force unrelinquished, unstayed or unterminated for a period of sixty (60) days;
E. any material representation or warranty made by Borrower and contained in any of the Documents, or otherwise made by Borrower to Lender, proves or becomes untrue in any material respect, provided that any cure period (if any) available to remedy the inaccuracy has passed;
F. Borrower is in material default in the payment or performance of any material obligation under any promissory note, indenture, contract, mortgage, deed of trust or other instrument to which Borrower is a party or by which Borrower is bound and the applicable cure period shall have expired;
G. any provision of any Document, including, without limitation, the Security Agreement, shall for any reason (except for acts to be performed by Lender) cease to be valid and binding on any signatory thereto, or such signatory shall so allege, or any Security Agreement shall for any reason (except for acts to be performed by Lender) cease to create a valid and perfected first priority lien, mortgage, encumbrance or security interest except to the extent permitted by the terms thereof, in any of the property purported to be covered thereby, or the signatory to such Security Agreement shall so allege;
H. the termination of the Hosting Agreement by Lender due to the material breach thereunder by Borrower; or
I. Borrower"s failure to duly and punctually observe or perform, in any material respect, any other of the covenants, conditions or agreements to be performed or observed by Borrower contained in this Agreement or any of the Documents and, except as may otherwise be specifically provided in the Documents, such failure continues for a period of thirty (30) days after the earlier of the giving of notice of such failure by Lender to Borrower, or the date Lender is notified of such failure by Borrower or should have been so notified pursuant to section 8B hereof.
J. Borrower"s material breach under the Hosting Agreement and/or any of the following agreements between the parties (which remains uncured after the applicable core period, if any, thereunder): the Software Development Agreement of even date herewith; and the Information Services Agreement of even date herewith (and the Escrow Agreement referred to therein).
12. Remedies. Upon the occurrence of an Event of Default and while any Event of Default is continuing, Lender may at its option elect to pursue any or all of the following remedies, which are cumulative and in addition to any other right or remedy provided by applicable law:
A. without further demand, protest or notice of any kind to Borrower, declare any or all sums and obligations due under the Documents to be due and immediately payable, and upon such declaration the same shall become and be immediately due and payable;
B. terminate Lender"s commitment to make Advances hereunder;
C. If Borrower fails to perform any act that it is required to perform under this Agreement or the Security Agreement, Lender may, but shall not be obligated to, perform, or cause to performed, such act, provided that any reasonable expense thereby incurred by Lender and any money thereby paid by Lender, shall be a demand obligation owing by Borrower and Lender shall promptly notify Borrower of the amount of such obligation, which obligation shall bear interest at the Default Rate from the date Lender makes such payment until repaid by Borrower; and Lender shall be subrogated to all rights of the person receiving such payment;
D. enforce Lender"s rights under the Security Agreement;
E. terminate the Hosting Agreement;
F. institute one or more legal proceedings at law or in equity for the:
(i) specific performance of any covenant, condition, agreement or undertaking contained in the Documents, or in aid of the execution of any powers granted therein and/or to recover a judgment for damages for the breach hereof, including, without limitation, any amount due under the Documents, either by their terms or by virtue of such declaration, and collect the same out of any property of Borrower;
(ii) foreclosure of its security interest in the Collateral and the sale of all or any part of the Collateral under the judgment or decree of any court of competent jurisdiction;
(iii) enforcement of such other appropriate legal or equitable remedy as may in the opinion of Lender be necessary to protect and enforce Lender"s rights under the Documents;
G. assert such other rights and remedies of a secured party and of a mortgagee under the laws of the United States or the state of _________(PLACENAME) (regardless of whether such law or one similar thereto has been enacted in the jurisdiction where the rights or remedies are asserted), including, without limitation, all rights of a secured party under the UCC, whether or not this Agreement and the transactions contemplated hereby are determined to be governed by the UCC.
13. Costs and Expenses of Collection and Enforcement. Borrower shall pay to Lender on demand all reasonable attorneys fees and other costs and expenses reasonably incurred by Lender in protecting the Collateral or in exercising Lender"s rights, powers or remedies under this Agreement or the Documents, together with interest on such sums at the Default Rate from the date when the costs and expenses are incurred until fully paid. If because of Borrower"s default the Lender consults an attorney regarding the enforcement of any of its rights under any Document, or if suit is brought to enforce any Document, Borrower promises to pay all costs thereof, including attorneys" fees. Such costs and attorneys" fees shall include, without limitation, costs and attorneys" fees incurred in any appeal, forfeiture proceeding or in any proceedings under any present or future federal bankruptcy or state receivership law.
14. Allocation of Proceeds. The (a) proceeds of any sale, (b) proceeds of any insurance received by Lender under any insurance policy obtained by any Borrower hereunder, and (c) any and all other moneys received by Lender with respect to the Documents, the application of which has not elsewhere herein been specifically provided for, shall, except as otherwise specified in any applicable Document, be applied as follows
(i) first, to the payment of all expenses and charges, including expenses of any sale or retaking, reasonable attorneys" fees, court costs and other expenses or advances reasonably made or incurred by Lender, or on Lender"s behalf, under the Documents upon an Event of Default, and to the payment of, and provision for adequate indemnity for, any taxes, assessments or liens prior to the lien of Lender;
(ii) second, to the payment of all accrued and unpaid interest under the Promissory Notes or New Notes;
(iii) third, to the payment of the unpaid principal balance under the Promissory Notes or New Note;
(iv) fourth, to the payment of all other amounts due to Lender under the Documents; and
(v) last, any residue shall be paid to Borrower, or as otherwise required by law, or, directed by a court having jurisdiction.
If the proceeds and other sums described in this section 14 are insufficient to pay in full all amounts due to Lender under the Documents, Borrower shall immediately pay such deficiency to Lender.
15. Modifications, Consents and Waivers. No failure or delay on the part of Lender in exercising any power or right hereunder or under the Promissory Notes or New Notes or under any other Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power preclude any other or further exercise thereof or the exercise of any other right or power. No amendment, modification or waiver of any provision to this Agreement, the Notes or any other Document, nor consent to any departure therefrom, shall in any event be effective unless the same shall be in writing and consented to by Lender, and then such amendment, modification, waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on Borrower in any case shall entitle Borrower to any other or further notice or demand in similar or other circumstances.
16. Notices. All notices and requests in connection with this Agreement, the Promissory Notes, the New Note or any other Document shall be in writing and may be given by personal delivery, registered or certified mail, telegram, facsimile or telex addressed as follows:
to Borrower: BBB Corporation
_________(address)
Attn: _________
and to:
BBB Corporation
_________(address)
Attn: _________
to Lender: AAA Corporation
_________(address)
Attn: _________
and to:
AAA Corporation
_________(address)
Attn: _________
or to such other address as the party to receive the notice or request shall designate by notice to the other. The effective date of any notice or request shall be five (5) days from the date on which it is sent by the addresser if mailed, or when delivered to a telegraph company, properly addressed as above with charges prepaid, or when telexed, sent by facsimile or personally delivered. Borrowers hereby agree that such notice shall be deemed to meet any requirements of reasonable notice contained in the UCC.
17. Costs and Expenses of Perfecting Security Interests and other Rights. Borrower shall pay in a timely manner all costs and expenses incurred by Lender, including the reasonable fees and expenses of legal counsel, in connection with the approval, preparation, negotiation, filing, or recording of any financing statements, pledge agreements, waivers, subordination agreements, and assignments (as well as any amendments or extensions thereto) reasonably required to protect or perfect Lender"s interest in the Collateral or any other rights granted by the Documents.
18. Survival of Covenants. All covenants, agreements, representations and warranties made by Borrower hereunder shall survive the execution and delivery of this Agreement and the disbursement of any Advances made pursuant to this Agreement. All statements contained in certificates or other instruments delivered by Borrower pursuant to this Agreement shall constitute representations and warranties made by Borrower hereunder, as the case may be.
19. Binding Effect and Assignment. This Agreement, the Promissory Notes and all other Documents shall be binding upon and inure to the benefit of Borrower and Lender and their respective successors and assigns, except that, subject to Exhibit D hereto, Borrower may not assign or transfer its rights hereunder, or delegate its obligations hereunder, without the prior written consent of Lender, which may be withheld in Lender"s sole and absolute discretion. From and after any assignment, transfer or delegation of obligation by Lender of its interest hereunder, Lender shall be released from all liability to Borrower hereunder arising after the date of such assignment, transfer or delegation of obligation; provided, however, that any assignee of Lender shall expressly assume all of the obligations of Lender hereunder. For purposes of this Agreement, an "transfer" under this Section shall be deemed to include, without limitation, the following: (a) a merger or any other combination of an entity with another party (other than a reincorporation of BBB from the State of _________(PLACENAME) to the State of Delaware), whether or not the entity is the surviving entity; (b) any transaction or series of transactions whereby a third party acquires direct or indirect power to control the management and policies of an entity, whether through the acquisition of voting securities, by contract, or otherwise; (c) in the case of BBB, the sale or other transfer of BBB"s search engine business or any other substantial portion of BBB"s assets (whether in a single transaction or series of transactions), or (d) the transfer of any rights or obligations in the course of a liquidation or other similar reorganization of an entity (other than a reincorporation of BBB from the State of _________(PLACENAME) to the State of Delaware).
20. Headings. Article and paragraph headings used in this Agreement are for convenience of reference only and shall not affect the construction of this Agreement.
21. Severability. The unenforceability or invalidity of any provision or provisions of this Agreement, the Promissory Notes, the New Note, or any other Document shall not render any other provision or provisions hereof or thereof unenforceable or invalid. If any rate of interest provided for herein is greater than that permitted under applicable law, such rate shall be automatically reduced to be the maximum permitted by law.
22. Additional Documents. Borrower shall at Lender"s request, from time to time, at Borrower"s sole cost and expense, execute, re execute, deliver and redeliver any and all documents, and do and perform such other and further acts, as may reasonably be required by Lender to enable Lender to perfect, preserve and protect Lender"s security interest in the Collateral and Lender"s and Lender"s rights and remedies under this Agreement or granted by law and to carry out and effect the intents and purposes of this Agreement.
23. Integration. This Agreement and the other Documents shall constitute the entire agreement between the parties hereto with respect to the subject matter of this Loan Agreement and shall supersede all other agreements, written or oral, with respect thereto. In the event of any conflict between this Agreement and the other Documents, the provisions of this Agreement shall control.
24. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original if fully executed, but all of which shall constitute one and the same document.
25. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of _________(PLACENAME).
26. Confidentiality.
A. The parties hereby agree that all terms and conditions of that certain AAA Corporation Non Disclosure Agreement between them dated _________,_________,_________(M/D/Y), shall govern the disclosure of confidential and proprietary information made under this Agreement. In this connection, the parties hereby agree that the terms of this Agreement and any information provided to Lender hereunder shall be treated as confidential in accordance with the terms of said Non Disclosure Agreement.
B. Without having first sought and obtained Lender"s written approval (which Lender may withhold in its sole and absolute discretion), Borrower shall not, directly or indirectly, (i) trade upon this transaction or any aspect of Borrower"s relationship with Lender, or (ii) otherwise deprecate AAA technology.
C. Neither party will issue any press release or make any public announcement(s) relating in any way whatsoever to this Agreement or the relationship established by this Agreement without the express prior written consent of the other party. However, the parties acknowledge that this Agreement, or portions thereof, may be required under applicable law to be disclosed, as part of or an exhibit to a party"s required public disclosure documents. If either party is advised by its legal counsel that such disclosure is required, it will notify the other in writing and the parties will jointly seek confidential treatment of this Agreement to the maximum extent reasonably possible, in documents approved by both parties and filed with the applicable governmental or regulatory authorities.
ORAL COMMITMENTS. NOTICE IS HEREBY GIVEN THAT ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER _________(PLACENAME) LAW.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
Lender: Borrower:
AAA Corporation BBB Corporation
By: _________ By: _________
Name: _________ Name: _________
Title: _________ Title: _________
Date: _________ Date: _________
EXHIBIT A
PROMISSORY NOTE
US$,_________ _________(address)
_________(M/D/Y)
FOR VALUE RECEIVED, the undersigned, BBB CORPORATION ("Maker"), hereby promises to pay to the order of AAA CORPORATION ("Lender"), at such place as Lender may designate in writing from time to time, the principal sum of _________ and No/100 United States Dollars (US$ _________) together with interest and costs as herein provided.
Interest. The outstanding principal balance of the Loan shall bear interest at the rate of _________ percent (_________%) per annum. All computations of interest shall be based on a 360 day year for the actual number of days passed.
Term/Note Maturity Date. The term of this Note shall be three (3) years. The Note Maturity Date shall be _________,_________,_________(M/D/Y).
Loan Agreement. This Note is given pursuant to the terms and conditions of the Loan Agreement, dated as of _________,_________,_________(M/D/Y) between Maker and Lender (the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have the meaning given to them in the Loan Agreement.
Payments of Principal and Interest. Maker shall make monthly principal and interest payments of _________ on the first day of each month during the term of this Note. Maker shall pay all remaining principal and accrued interest on or before the Note Maturity Date.
Prepayment. Maker may repay all or any portion of the amount due under this Note without premium or penalty.
Events of Default; Acceleration. Upon occurrence of an Event of Default, at the option of Lender the entire outstanding principal, interest and costs hereunder shall be immediately due and payable and shall thereafter bear interest at a rate equal to eighteen percent (18%) per annum (the "Default Rate"), until payment in full of all amounts due to Lender. Notwithstanding the foregoing, the interest paid under this Note shall never be greater than the maximum rate of interest permitted under applicable law.
Liability and Waiver. Maker hereby waives diligence, presentment, demand, protest and notice of any kind whatsoever. The non exercise by Lender of its rights hereunder in any particular instance shall not constitute a waiver thereof in that or any subsequent instance.
Costs of Collection. Maker, together with all sureties, endorsers and guarantors of this Note, jointly and severally promise to pay: (a) all costs and expenses incurred by Lender, including without limitation attorneys" fees, in the event that Lender consults an attorney regarding a default by Borrower, even though suit is not instituted; (b) attorneys" fees, and all other costs, expenses and fees incurred by Lender, including costs on appeal, in the event that suit is instituted on this Note; (c) all costs and expenses provided for in the Loan Agreement or in any other instrument given as security for this Note and/or incurred by or on behalf of Lender in connection with collecting or otherwise enforcing any right of Lender under this Note, the Loan Agreement or any other instrument given as security for this Note; and (d) all costs and expenses, including, without limitation, attorneys" fees, incurred by Lender in connection with any bankruptcy, forfeiture, insolvency or reorganization proceeding or receivership in which Maker is involved, including, without limitation, those incurred in making any appearances in any such proceeding or in seeking relief from any stay or injunction issued in or arising out of any such proceeding.
NOTICE. NOTICE IS HEREBY GIVEN THAT ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER _________(PLACENAME) LAW.
Applicable Law. This Note shall be governed by and construed in accordance with the laws of the State of _________(PLACENAME).
Maker:
BBB Corporation, a _________(PLACENAME) corporation
By: _________
Name: _________
Title: _________
Exhibit B
Notice of Borrowing
To: AAA Corporation
_________(address)
ATTN: _________
The undersigned, BBB CORPORATION ("BBB"), hereby refers to the Software Hosting Agreement and Loan Agreement, both dated _________,_________,_________(M/D/Y), and hereby requests to borrow the sum of $ _________ pursuant to said Loan Agreement and that such funds be sent by wire transfer to the account specified in the Loan Agreement.
Pursuant to said Software Hosting Agreement, you and BBB agreed, on or about _________, that the AAA Search Engine would be increased to accommodate up to _________ hits per day, and that BBB would purchase _________ new Hosting Servers to satisfy such capacity requirement. BBB certifies that all amounts loaned by you in response to this request will be used only to purchase _________ new Hosting Servers for the cluster servicing the AAA Search Engine.
BBB further certifies that as of the date hereof: (i) all representations and warranties made by BBB under said Loan Agreement remain true; (ii) BBB is in full compliance with all of its affirmative covenants under said Loan Agreement; and (iii) no event has occurred and is continuing which constitutes an Event of Default under said Loan Agreement.
All capitalized terms used in this Notice will have the meanings ascribed to them under said Loan Agreement or Software Hosting Agreement (whichever is applicable).
BBB CORPORATION
By: _________
Printed Name: _________
Printed Title: _________
Date: _________(M/D/Y)
EXHIBIT C
PROMISSORY NOTE
US$ _________ _________(address)
_________(M/D/Y)
FOR VALUE RECEIVED, the undersigned, BBB CORPORATION ("Maker"), hereby promises to pay to the order of AAA CORPORATION ("Lender"), at such place as Lender may designate in writing from time to time, the principal sum of _________ and No/100 United States Dollars (US$ _________) together with interest and costs as herein provided.
Interest. The outstanding principal balance of the Loan shall bear interest at the rate of _________ percent (_________%) per annum. All computations of interest shall be based on a 360 day year for the actual number of days passed.
Term/Note Maturity Date. The term of this Note shall be two (2) years. The Note Maturity Date shall be _________,_________,_________(M/D/Y).
Loan Agreement. This Note is given pursuant to the terms and conditions of the Loan Agreement, dated as of _________,_________,_________(M/D/Y) between Maker and Lender (the "Loan Agreement"). Capitalized terms not otherwise defined herein shall have the meaning given to them in the Loan Agreement.
Payments of Principal and Interest. Maker shall make monthly principal and interest payments of _________ on the first day of each month during the term of this Note. Maker shall pay all remaining principal and accrued interest on or before the Note Maturity Date.
Prepayment. Maker may repay all or any portion of the amount due under this Note without premium or penalty.
Events of Default; Acceleration. Upon occurrence of an Event of Default, at the option of Lender the entire outstanding principal, interest and costs hereunder shall be immediately due and payable and shall thereafter bear interest at a rate equal to eighteen percent (18%) per annum (the "Default Rate"), until payment in full of all amounts due to Lender. Notwithstanding the foregoing, the interest paid under this Note shall never be greater than the maximum rate of interest permitted under applicable law.
Liability and Waiver. Maker hereby waives diligence, presentment, demand, protest and notice of any kind whatsoever. The non exercise by Lender of its rights hereunder in any particular instance shall not constitute a waiver thereof in that or any subsequent instance.
Costs of Collection. Maker, together with all sureties, endorsers and guarantors of this Note, jointly and severally promise to pay: (a) all costs and expenses incurred by Lender, including without limitation attorneys" fees, in the event that Lender consults an attorney regarding a default by Borrower, even though suit is not instituted; (b) attorneys" fees, and all other costs, expenses and fees incurred by Lender, including costs on appeal, in the event that suit is instituted on this Note; (c) all costs and expenses provided for in the Loan Agreement or in any other instrument given as security for this Note and/or incurred by or on behalf of Lender in connection with collecting or otherwise enforcing any right of Lender under this Note, the Loan Agreement or any other instrument given as security for this Note; and (d) all costs and expenses, including, without limitation, attorneys" fees, incurred by Lender in connection with any bankruptcy, forfeiture, insolvency or reorganization proceeding or receivership in which Maker is involved, including, without limitation, those incurred in making any appearances in any such proceeding or in seeking relief from any stay or injunction issued in or arising out of any such proceeding.
NOTICE. NOTICE IS HEREBY GIVEN THAT ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER _________(PLACENAME) LAW.
Applicable Law. This Note shall be governed by and construed in accordance with the laws of the State of _________(PLACENAME).
Maker:
BBB Corporation, a _________(PLACENAME) corporation
By: _________
Name: _________
Title: _________
EXHIBIT D
Transfer of BBB
If BBB requests AAA"s consent to a transfer as described in clause (a) of Section 19 of this Loan Agreement to which this Exhibit D is appended, and AAA reasonably withholds its consent to such transfer (an "Unconsented Transfer"), then BBB will nevertheless have the right to transfer this Agreement in connection with its proposed Unconsented Transfer subject to the following conditions precedent to the Unconsented Transfer:
(i) BBB, at its sole cost and expense, and without any financing supplied by AAA, will create a separate cluster of Hosting Servers for AAA required to service AAA"s reasonably anticipated needs for a period of twelve months after the commencement of operation of such new and relocated cluster (provided however that AAA will purchase, or fund (in accordance with this Loan Agreement) BBB"s purchase of (whichever AAA elects) any new hosting servers beyond the Hosting Servers purchased by BBB under the Software Hosting Agreement of even date herewith necessary to service AAA"s reasonably anticipated needs as set forth above);
(ii) BBB will relocate, at its sole cost and expense (including, without limitation, indemnifying AAA and holding it harmless against any and all Taxes that arise as a direct or indirect result of the relocation of the Hosting Servers), all Hosting Servers referred to in clause (i) to a location designated by AAA, in its sole discretion;
(iii) BBB, at its sole cost and expense, will provide training to AAA personnel to the extent requested by AAA, to enable such personnel to use and maintain the AAA Search Engine, and to create enhancements thereto, with reasonable competence (all as determined by AAA in its sole discretion);
(iv) BBB will grant to AAA an irrevocable, non exclusive, royalty free license to use the Product (and all required underlying BBB Technology) solely in connection with AAA"s operation of the AAA Search Engine (which license shall include the right to create enhancements and other derivative works based thereon for use in conjunction therewith) for such period as AAA may require to transition its search engine services to non BBB technology (the "Transition Period"), and BBB will waive all royalties otherwise payable pursuant to the Software Development Agreement and/or the Information Services Agreement of even date herewith; for the purposes of this clause (iv), the Transition Period will commence at such time as AAA assumes control over said separate cluster and begins itself operating the AAA Search Engine, and will continue thereafter for eighteen months (18) or until the termination of said Software Development Agreement and Information Services Agreement (whichever is longer);
(v) BBB will direct the Escrow Agent to release to AAA all Confidential Materials held by the Escrow Agent, subject to AAA"s agreement to use such Confidential Materials only in connection with its licensed rights under clause (iv) above;
(vi) BBB will agree to reimburse AAA for all reasonable costs incurred by AAA in transitioning its search engine to non BBB technology (whether created by AAA or by a third party); and
(vii) BBB will cause the applicable proposed assignee, transferee or delegatee of obligation of this Agreement to assume, jointly and severally with BBB, all of BBB"s obligations hereunder.
AAA will cooperate with BBB and use its reasonable best efforts so as to enable BBB to satisfy the foregoing conditions precedent in a timely manner. Upon satisfaction of the foregoing conditions precedent, said Software Hosting Agreement shall be deemed terminated pursuant to Section 10.1 thereof.
Upon expiration of the Transition Period, all rights granted to AAA to use the Product (other than AAA Technology, Joint Derivative Technology and the AAA Derivative Technology) and/or any BBB Technology under the transitional license referred to in clause (iv) or otherwise shall cease, and AAA shall immediately return to BBB all Confidential Materials (and all copies thereof), provided however that, notwithstanding any provision of the Ancillary Agreements to the contrary, the undertaking by BBB to indemnify AAA and hold it harmless against Taxes as provided in clause (ii) above shall survive any such terminations.
Capitalized terms used in this Exhibit D and not otherwise defined in this Loan Agreement shall be defined in the same manner as in the applicable agreement among the following agreements between Lender and Borrower of even date herewith: Software Development Agreement; Information Services Agreement; and/or Software Hosting Agreement.
EXHIBIT E
BBB Depository Account Information
All Advances should be sent to Borrower"s account by wire transfer as follows, unless Borrower notifies Lender in writing signed by a Responsible Officer that Advances henceforth should be sent to a different account:
Name of Bank: CCC(BANK)
Address of Bank: _________
Routing Number: [*]
Account Number: [*]
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
借款协议英文篇3:贷款担保协议书（英文版）
(this "Agreement"), dated _________,_________,_________(M,D,Y), by and among AAA Incorporated, a _________(PLACENAME) corporation ("AAA"), and BBB Incorporated, an _________(PLACENAME) corporation ("BBB ") and a wholly owned subsidiary of AAA Incorporated (collectively, the "Borrower"), and Safeguard Scientifics (_________(PLACENAME)), Inc. ("Lender"), a _________(PLACENAME) corporation.
BACKGROUND
The Borrower presently has a senior bank credit in the amount of $,_________(consisting of a $,_________ revolving line of credit, a $,_________ term loan and a $,_________ term loan) (the "Senior Credit") pursuant to Secured Credit Agreement, dated _________,_________,_________(M,D,Y) between the American National Bank and Trust Company of Chicago (the "Bank") and AAA (as amended to date, the "Credit Agreement"), a Term Note, Second Term Note, Revolving Note, Security Agreement, and Trademark Collateral Assignment and Security Agreement (all as defined in the Credit Agreement), the Modification Agreement dated _________,_________,_________(M,D,Y) between the Bank and AAA and BBB , the Second Modification Agreement dated _________,_________,_________(M,D,Y), between the Bank and AAA and BBB (the "Second Modification Agreement"), the Security Agreement and the Guaranty (all as defined in the Second Modification Agreement), and wishes to obtain a loan from Lender pursuant to this Agreement.
NOW, THEREFORE, intending to be legally bound, the parties agree as follows:
ARTICLE I
THE LOAN
1.1. The Loan. Subject to the terms and conditions hereinafter provided, Lender shall make the following loans and/or lines of credit (whether one or more, collectively, the "Loan") available to Borrower, for the purposes indicated below :
The loan shall be for an aggregate amount of _________ Dollars ($,_________) and shall be used only for working capital purposes, which shall not include the repayment of any existing indebtedness. The Loan shall be advanced at one time upon request of the Borrower. The request shall be made pursuant to a notice from the Borrower to the Lender which certifies the Loan is to be used for working capital purposes of BBB , which it is understood includes the purchase of assets for BBB , that the representations and warranties hereunder remain true and correct in all material respects, and that there is no event of default or event which with the passage of time or giving of notice or both would cause an event of default hereunder or a default under the documents in respect of the Senior Credit.
1.2. The Subordinated Note; Repayment. The Loan shall be evidenced by a subordinated promissory note from Borrower to Lender (the "Subordinated Note"), which shall be substantially in the form attached hereto as Exhibit 1.2 . The Loan shall be repaid with interest as provided in the Subordinated Note.
ARTICLE II
COLLATERAL
2.1. Collateral. Borrower hereby pledges, assigns and grants to Lender, as security for the performance of this Agreement and any other agreements executed in connection herewith, and the repayment of the Loan and the Subordinated Note and for all other indebtedness, liabilities and obligations of Borrower (primary, secondary, direct, contingent, related, unrelated, sole, joint or several) due or to become due to Lender or which may be contracted for or acquired hereafter (collectively, the "Obligations"), a security interest under the Uniform Commercial Code in all Accounts, Inventory, General Intangibles, Chattel Paper, Instruments, Documents and Equipment (whether or not constituting fixtures) and any other security of the Senior Credit now owned or hereafter acquired by Borrower, together with all cash and non-cash proceeds (including without limitation, insurance proceeds), products, distributions, additions, accessions, substitutions, exchanges and replacements thereof, (collectively, the "Collateral").
2.2. Further Assurances. Borrower shall from time to time promptly take all actions (and execute, deliver and record all instruments and documents) necessary or reasonably appropriate or requested by Lender, to perfect and protect any security interest granted or purported to be granted hereby or to enable Lender to exercise and enforce its rights and remedies hereunder with respect to any of the Collateral, subject to the Subordination Agreement (the "Subordination Agreement") dated as of _________,_________,_________(M,D,Y) between Lender and the Bank.
2.3. Attorney-In-Fact. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, in the name of Borrower or otherwise, from time to time in Lender"s discretion and at Borrower"s expense, to take any action and to execute, deliver and record any instruments or documents which Lender may deem necessary or advisable in order to perfect and protect any security interest granted or purported to be granted hereby or to enable Lender to exercise and enforce its rights and remedies hereunder with respect to any of the Collateral including, without limitation, financing or continuation statements under the Uniform Commercial Code, and amendments thereto. Lender shall not, in its capacity as such attorney-in-fact, be liable for any acts or omissions, nor for any error of judgment or mistake of fact or law, but only for gross negligence or willful misconduct.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Borrower hereby makes the following representations and warranties, which shall be continuing in nature and remain in full force and effect until the Obligations are satisfied in full:
3.1. Existence and Power. Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization and has all requisite power and authority to own and operate its assets and to conduct its business as now or proposed to be carried on, and is duly qualified, licensed and in good standing to do business in all jurisdictions where its ownership of property or the nature of its business requires such qualification or licensing. Borrower has the full power and authority to execute, deliver and perform this Agreement, the Subordinated Note, and all other agreements, instruments, and documents evidencing or securing the Loan (collectively as "Loan Documents").
3.2. Authorization and Enforceability. Borrower has been duly authorized to execute, deliver and perform the Loan Documents by all appropriate action of its Board of Directors if Borrower is a corporation, all of its general partners if Borrower is a partnership or otherwise as may be required by law, charter or other organizational documents or agreements. Each of the Loan Documents, when executed and delivered by Borrower, will constitute the legal, valid and binding obligation of Borrower, enforceable in accordance with its respective terms.
3.3. No Defaults or Violations. There does not exist any Event of Default (as that term is defined in Section 5.1) under this Agreement or any default or violation by Borrower of or under any of the terms, conditions or obligations of: (a) its articles or certificate of incorporation, regulations or bylaws if Borrower is a corporation, its partnership agreement if Borrower is a partnership or its other organizational documents as applicable; (b) any indenture, mortgage, deed of trust, franchise, permit, contract, agreement, or other instrument to which Borrower is a party or by which it or any of its properties may be bound, including the documents in respect of the Senior Credit; or (c) any law, regulation, ruling, order, injunction, decree, condition or other requirement applicable to or imposed upon Borrower by any law, or by the action of any court or other governmental authority or agency; and the execution, delivery and performance of the Loan Documents will not result in any such default or violation, nor are any approvals, authorizations, licenses, waivers or consents, governmental (foreign, federal, state or local) or non- governmental, under the terms of contracts or otherwise, required to be obtained by Borrower by reason of or in connection with its execution, delivery and performance of any of the Loan Documents.
3.4. Financial Statements. Borrower has delivered or caused to be delivered to Lender its most recent balance sheet, income statement and statement of cash flows as of _________,_________,_________(M,D,Y) (the "Financial Statements"). The Financial Statements are true, accurate and complete in all material respects and fairly present the financial condition, cash flow and the results of Borrower"s operations as of the respective dates thereof and for the periods therein referred to, all in accordance with generally accepted accounting principles in effect from time to time ("GAAP"), consistently applied from period to period subject in the case of interim statements to normal year-end adjustments and excluding disclosures normally required by GAPP. Borrower does not have any liabilities or obligations of any nature (whether or not of the nature required to be reflected in a balance sheet prepared in accordance with GAAP) that are not reflected on the Financial Statements (including, without limitation, any liabilities relating to environmental, occupational and health matters or ERISA) except for current liabilities (within the meaning of GAAP) which have been incurred since the date thereof in the ordinary course of business and consistent in nature and amount with Borrower"s operating history.
3.5. No Material Adverse Change. Since the date of its most recent Financial Statements, Borrower has not suffered any damage, destruction or loss, and no event or condition has occurred or exists, which has resulted or could result in a material adverse change in its business, assets, operations, financial condition or results of operation.
3.6. Title to Assets; Existing Liens. Borrower has good and marketable title to its assets, free and clear of all liens and encumbrances, except for (a) current taxes and assessments not yet due and payable, (b) liens and encumbrances, if any, reflected or noted in its most recent Financial Statements, (c) assets disposed of by Borrower since the date of its most recent Financial Statements in the ordinary course of business, consistent with past practice, and (d) the liens and encumbrances described on Schedule 3.6.
3.7. Litigation. Except as set forth in Schedule 3.7, there are no actions, suits, proceedings or governmental investigations pending or, to the knowledge of Borrower, threatened, against Borrower or any of its properties which could result in a material adverse change in Borrower"s business, assets, operations, financial condition or results of operations and there is no basis known to Borrower for any action, suit, proceeding or investigation which could result in such a material adverse change.
3.8. Tax Returns. Borrower has filed all returns and reports that are required to be filed by it in connection with any federal, state or local tax, duty or charge levied, assessed or imposed upon it or any of its properties or that it is required to withhold and pay over including, without limitation, unemployment, social security and similar taxes, and all of such taxes have been paid or adequate reserves therefor have been set aside or other provisions therefor have been made.
3.9. Intellectual Property. Borrower owns or is licensed to use all patents, patent rights, trademarks, trade names, service marks, copyrights, intellectual property, technology, know-how and processes necessary for the conduct of its business as currently conducted that are material to Borrower"s condition (financial or otherwise), business or operations.
3.10. Solvency. As of the date hereof and after giving effect to the transactions contemplated by the Loan Documents, (a) the aggregate value of Borrower"s assets exceeds its liabilities (including, without limitation, contingent, subordinated, unmatured and unliquidated liabilities), (b) Borrower has sufficient cash flow to enable it to pay its debts as they mature, and (c) Borrower does not have unreasonably small capital for the business in which it is engaged.
3.11. Disclosure. None of the Loan Documents contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained in the Loan Documents not misleading. There is no fact known to Borrower which materially and adversely affects or, so far as Borrower can now foresee, might materially and adversely affect Borrower"s business, assets, operations, financial condition or results of operation and which has not otherwise been fully set forth in this Agreement or otherwise disclosed in writing to Lender.
3.12. Places of Business. The locations of Borrower"s chief executive office and other places of business are shown on Schedule 3.12. Borrower covenants not to establish any new, or discontinue any existing, place of business without giving Lender at least 30 days" prior notice.
3.13. Capital Structure. Schedule 3.13 sets forth the authorized capital stock of Borrower, the issued and outstanding shares of such stock, and the owners thereof. There are no options, warrants or other rights outstanding to purchase any such shares except as indicated on Schedule 3.13.
3.14. Subsidiaries, Affiliates, and Other Investments. Except as shown on Schedule 3.14, Borrower has no subsidiaries or affiliates (other than its own shareholders); nor does Borrower have any investment in any other person or entity.
3.15 Bank Consent. The Bank has consented to this Loan, a copy of such consent has been delivered to Lender, and the liens in respect of the Collateral constitute Permitted Liens (as defined in the Credit Agreement).
3.16 Bank Documents. Accurate copies of all of the documents in respect of the Senior Credit have been delivered to Lender.
ARTICLE IV
COVENANTS
4.1. Affirmative Covenants. Borrower agrees that from the date of execution of this Agreement until the Obligations are satisfied in full, Borrower shall (and shall cause each of its majority-owned subsidiaries, if any, to):
4.1.1. Payments of Taxes and Other Charges. Pay and discharge when due all indebtedness and all taxes, assessments, charges, levies and other liabilities imposed upon Borrower, its income, profits, properties or business, except those which currently are being contested in good faith by appropriate proceedings and for which Borrower shall have set aside adequate reserves or made other adequate provisions acceptable to Lender in its sole discretion.
4.1.2. Maintenance of Existence, Operation and Assets; Inspection. Do all things necessary to maintain, renew and keep in full force and effect its organizational existence and all rights, permits and franchises necessary to enable it to continue its business; continue in operation in substantially the same manner as at present; conduct business and enter into transactions only in the ordinary course, consistent with past practice; keep its properties in good operating condition and repair; make all necessary and proper repairs, renewals, replacements, additions and improvements thereto; and permit representatives of Lender to inspect Borrower"s properties and its books and records and to make extracts therefrom at all reasonable times during normal business hours.
4.1.3. Insurance. Keep its assets insured with responsible insurance companies against those risks and in such amounts as are commonly insured against by companies in similar businesses and owning similar assets. At Lender"s request, Borrower shall have Lender named as loss payee on all hazard insurance policies covering the Collateral and shall have Lender named as an additional insured on liability policies, subject to the Subordination Agreement. Borrower shall deliver to Lender such certificates, endorsements, and other evidence of such insurance as Lender may reasonably request.
4.1.4. Compliance with Laws. Comply with all laws applicable to Borrower and to the operation of its business (including, without limitation, any statute, rule or regulation relating to employment practices and employee benefits and to environmental, occupational and health standards and controls).
4.1.5. Financial Reports. Deliver promptly such financial statements and reports as Lender may reasonably request including, without limitation, annual financial statements audited or reviewed by independent certified public accountants and interim financial statements prepared by Borrower"s management. All such financial data shall be true, accurate and complete in all material respects and shall be prepared in accordance with GAAP consistently applied, subject, in the case of interim statements, to normal year-end adjustments and excluding disclosures normally required by GAAP.
4.1.6. Additional Reports. Provide prompt notice to Lender of the occurrence of any of the following (together with a description of the action which Borrower proposes to take with respect thereto): (a) any Event of Default or potential Event of Default hereunder or under any of the agreements in respect of the Senior Credit, (b) any litigation filed by or against Borrower, (c) any event which might result in a material adverse change in Borrower"s business, assets, operations, financial condition or results of operation; and provide to Lender any other reports reasonably requested thereby.
4.1.7. Use of Proceeds. Use of the proceeds of the Loan only for the purposes specified in Section 1.1 above.
4.2. Negative Covenants. Borrower covenants and agrees that from the date of execution of this Agreement until the Obligations are satisfied in full, Borrower shall not (and shall cause each of its majority-owned subsidiaries, if any, not to), without Lender"s prior written consent:
4.2.1. Indebtedness. Except as permitted pursuant to Section 6.6 of the Credit Agreement as now in effect, maintain, create or incur any indebtedness for borrowed money (including, without limitation, the deferred purchase price of goods and services) other than (a) the Loan and any subsequent indebtedness to Lender, and (b) existing or proposed indebtedness disclosed on the Borrower"s most recent Financial Statements or on Schedule 4.2.1.
4.2.2. Liens and Encumbrances. Except for liens in favor of Lender and for the liens and encumbrances described on Schedule 3.6, create, assume or permit to exist any mortgage, pledge, encumbrance or other security interest or lien upon any assets now owned or hereafter acquired by Borrower.
4.2.3. Guarantees. Except as permitted pursuant to Section 6.8 of the Credit Agreement as now in effect, guarantee, endorse or become contingently liable for the obligations of any person or entity, except in connection with the endorsement and deposit of checks in the ordinary course of business for collection and as permitted under the existing terms of the Credit Agreement.
4.2.4. Merger; Disposition of Assets. Merge or consolidate with or into any person or entity or lease, sell, transfer or otherwise dispose of any material assets, whether now owned or hereafter acquired, other than in the normal course of business and consistent with past practices.
4.2.5. Change in Business, Management or Ownership. Make or permit any material change in the nature of Borrower"s business as carried on as of the date hereof.
4.2.6. Dividends and Other Distributions. Except as permitted pursuant to Section 6.7 of the Credit Agreement as now in effect, declare or pay any dividends on or make any distribution with respect to any class of its capital stock or equity or ownership interest, or repurchase, redeem, retire or otherwise acquire any of its capital stock or equity.
4.2.7. Investments. Purchase or hold beneficially any stock, other securities or evidence of indebtedness or make any loans or advances to, or make any investment or acquire any interests in, any other person or entity except as permitted under the existing terms of the Credit Agreement.
4.2.8. Modification of the Senior Credit. Without the written consent of lender, Borrowers will not amend or modify any of the agreements, including the Credit Agreement and the Second Modification Agreement, executed in connection with the Senior Credit or referred to in the Subordination Agreement (as hereinafter defined); provided, if any of such agreements referred to in the Subordination Agreement in respect of the Lease Indebtedness and the Stockholder Indebtedness (each as defined in the Subordination Agreement) have not been executed as of the date hereof this restriction shall apply upon such execution and, in any event, all such agreements shall be reasonably acceptable to Lender.
4.3. Compliance with Terms of Stock Purchase Agreement
4.3.1. Covenants. Borrower shall also comply with the covenants set forth in a certain Stock Purchase Agreement dated as of _________,_________,_________(M,D,Y), as amended, among AAA, Safeguard Scientifics, Inc. and certain other persons and investors specified therein.
ARTICLE V
DEFAULT
5.1. Events of Default. The occurrence of an event of default as defined in the Subordinated Note or any of the other Loan Documents shall constitute an "Event of Default" hereunder.
5.2. Remedies on Default: Rights in Collateral. Upon any Event of Default, Lender may, in addition to its other rights at law, in equity, or under any other agreement, exercise with respect to the Collateral all of the rights and remedies of a secured party under the Uniform Commercial Code as in effect in _________(PLACENAME).
ARTICLE VI
DISPUTE RESOLUTION
6.1. Resolution of Disputes.
6.1.1. Good-Faith Negotiations. If any dispute arises under this Agreement or any of the other Loan Documents that is not settled promptly in the ordinary course of business, the parties shall seek to resolve any such dispute between them, first, by negotiating promptly with each other in good faith in face-to-face negotiations. These face-to-face negotiations shall be conducted by the respective designated senior management representative of each party. If the parties are unable to resolve the dispute between them through these face-to- face negotiations, within _________ business days (or such period as the parties shall otherwise agree) following the date of notification (the "Notice Date") by one party to the other(s) of the existence of such dispute, then any such disputes shall be resolved in the following manner.
6.1.2. Mediation. The parties shall endeavor to resolve any dispute arising out of or relating to this Agreement by mediation under the CPR Mediation Procedures for Business Disputes. Unless otherwise agreed, the parties will select a mediator from the CPR Panels of Neutrals and shall notify CPR to initiate the selection process.
6.1.3. Resolution of Disputes.
(a) Any action, suit or proceeding where the amount in controversy as to at least one party, exclusive of interest and costs, exceeds $,_________ ("Summary Proceeding"), arising out of or relating to this Agreement, or any of the other Loan Documents or the breach, termination or validity thereof which has not been resolved by mediation as provided herein within _________ days of the Notice Date, shall be litigated exclusively in the Superior Court of the State of _________(PLACENAME) (the "_________(PLACENAME) Superior Court") as a summary proceeding pursuant to Rules 124-131 of the _________(PLACENAME) Superior Court, or any successor rules (the "Summary Proceeding Rules"). Each of the parties hereto hereby irrevocably and unconditionally (A) submits to the jurisdiction of the _________(PLACENAME) Superior Court for any Summary Proceeding, (B) agrees not to commence any Summary Proceeding except in the _________(PLACENAME) Superior Court, (C) waives, and agrees not to plead or to make, any objection to the venue of any Summary Proceeding in the _________(PLACENAME) Superior Court, (D) waives, and agrees not to plead or to make any claim that any Summary Proceeding brought in the _________(PLACENAME) Superior Court has been brought in an improper or otherwise inconvenient forum, (E) waives, and agrees not to plead or to make, any claim that the _________(PLACENAME) Superior Court lacks personal jurisdiction over it, (F) waives its right to remove any Summary Proceeding to the federal courts except where such courts are vested with sole and exclusive jurisdiction by statute, and (G) understands and agrees that it shall not seek a jury trial or punitive damages in any Summary Proceeding based upon or arising out of or otherwise related to this Agreement or any of the other Loan Documents or the breach, termination or validity thereof, and waives any and all rights to any such jury trial or to seek punitive damages.
(b) In the event any action, suit or proceeding where the amount in controversy as to at least one party, exclusive of interest and costs, does not exceed $,_________(a "Proceeding"), arising out of or relating to this Agreement or any of the other Loan Documents or the breach, termination or validity thereof, is brought, the parties to such Proceeding agree to make application to the _________(PLACENAME) Superior Court to proceed under the Summary Proceeding Rules. Until such time as such application is rejected, such Proceeding shall be treated as a Summary Proceeding and all of the foregoing provisions of this Section relating to Summary Proceedings shall apply to such Proceeding.
(c) If a Summary Proceeding is not available to resolve any dispute hereunder, the controversy or claim shall be settled by arbitration conducted on a confidential basis, under the U.S. Arbitration Act, if applicable, and the then current Commercial Arbitration Rules of the American Arbitration Association (the "Association") strictly in accordance with the terms of this Agreement and the substantive law of the State of _________(PLACENAME) including law in respect of any statute of limitations. The arbitration shall be conducted at the Association"s regional office located closest to Lender"s principal place of business by a single arbitrator. The arbitrator is not empowered to award damages in excess of compensating damages and each party hereby irrevocably waives any right to recover such damages with respect to any such dispute. Judgment upon the arbitrator"s aware may be entered and enforced in any court of competent jurisdiction.
6.2. Equitable Remedies. Neither party shall be precluded hereby from securing equitable remedies in courts of any jurisdiction including, but not limited to, temporary restraining orders and preliminary injunctions, to protect its rights and interests, but such shall not be sought as a means to avoid or stay any of the provisions of this Article VI.
6.3. Performance Pending Resolution. Each party shall be required to continue to perform its respective obligations under the Loan Documents pending final resolution of any Dispute, unless to do so would be impossible or impracticable under the circumstances.
ARTICLE VII
MISCELLANEOUS
7.1. Expenses. Borrower shall pay to Lender, upon execution of this Agreement, and otherwise on demand, all costs and expenses incurred by Lender in connection with (a) the preparation, negotiation and closing of this Agreement and any related documents, and any modifications hereto or thereto, and (b) instituting, maintaining, preserving, enforcing and foreclosing the security interest in any of the Collateral, whether through judicial proceedings, arbitration or otherwise, or in defending or prosecuting any actions, arbitrations or proceedings arising out of or relating to the Loan Documents including, without limitation, reasonable fees and expenses of counsel (which may include costs of in-house counsel), expenses for auditors, appraisers and environmental consultants, lien searches, recording and filing fees and taxes.
7.2. Amendments, Indulgences, Etc. No amendment or waiver of any provision of this Agreement nor consent to any departure by Borrower herefrom shall in any event be effective unless the same shall be in writing and signed by Lender, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No failure or delay on the part of Lender in the exercise of any right, power, or remedy under this Agreement or any of the other Loan Documents shall under any circumstances constitute or be deemed to be a waiver thereof, or prevent the exercise thereof in that or any other instance.
7.3. Notices. All notices given hereunder shall be in writing and deemed validly given (a) three (3) business days after sent, postage prepaid, by certified mail, return receipt requested, (b) one (1) business day after sent, charges paid by the sender, by Federal Express Next Day Delivery or other guaranteed delivery service, (c) when confirmation of transmission by facsimile during normal business hours is received, or (d) when delivered by hand, upon delivery, in each case to the intended recipient at its address shown below or to such other address, or in care of such other person, as either party shall hereafter specify to the other from time to time by due notice:
If to Borrower: AAA Incorporated
_________(ADDRESS)
Attn: _________
Fax No.: _________
cc: CCC
_________(ADDRESS)
If to Lender: DDD,Inc.
_________(ADDRESS)
Attn: _________
Fax No.: _________
7.4. Interpretation. Except as otherwise indicated, all agreements defined herein refer to the same as from time to time amended or supplemented or the terms thereof waived or modified in accordance herewith and therewith. Any provision hereof found to be illegal, invalid or unenforceable for any reason whatsoever shall not affect the legality, validity or enforceability of the remainder hereof. In this Agreement, in the computation of a period of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each means "to but excluding." Unless otherwise expressly provided, the word "including" does not limit the preceding words or terms.
7.5. Entire Agreement. This Agreement, and all agreements and instruments to be delivered by the parties pursuant hereto or in connection herewith, represent the entire understanding of the parties with respect to the subject matter hereof, and supersede all other prior and contemporaneous agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.
7.6. Governing Law. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, and construed and interpreted according to the laws of the State of _________(PLACENAME).
7.7. Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument.
7.8. Joint and Several Obligations. The obligations and liabilities of the Borrower hereunder and under any of the other documents excluding the warrants for _________ shares issued in connection therewith, executed in connection herewith are joint and several obligations and liabilities, including those in respect of the representations, warranties, and covenants hereof; provided, however, that the warrants for _________ shares of stock of AAA are only for shares thereof and not for shares of BBB .
IN WITNESS WHEREOF, the parties have executed or caused to be executed this Agreement as of the day and year first above written.
AAA Incorporated DDD,Inc.
By:_________ By:_________
Name:_________ Name:_________
Title:_________ Title:_________
BBB Incorporated
By:_________
Name:_________
Title:_________
SCHEDULES AND EXHIBITS
Exhibit 1.2 Subordinated Note
Schedule 3.6 Liens and Encumbrances
Schedule 3.7 Litigation
Schedule 3.12 Places of Business
Schedule 3.13 Authorized Capital Stock of Borrower
Schedule 3.14 Subsidiaries and Affiliates; Other Investments
Schedule 4.2.1 Existing Indebtedness for Borrowed Money
EXHIBIT 1.2
SUBORDINATED NOTE
THIS INSTRUMENT IS SUBJECT TO THE TERMS OF A SUBORDINATION AGREEMENTDATED AS OF _________(M,D,Y) (AS AMENDED, RESTATED, SUPPELEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME) BY AND BETWEEN SAFEGUARD SCIENTIFICS (_________(PLACENAME)), INC. AND AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO
_________(PLACENAME)
$,_________ _________,_________,_________(M,D,Y)
FOR VALUE RECEIVED, AAA Incorporated ("DTP or "Parent"), a _________(PLACENAME) corporation, and BBB Incorporated, an _________(PLACENAME) corporation and wholly-owned subsidiary of DTP ("Subsidiary") (collectively, "Borrower"), each having an office at _________(ADDRESS), do hereby jointly and severally unconditionally promise to pay to the order of Safeguard Scientifics (_________(PLACENAME)), Inc., a _________(PLACENAME) corporation ("Lender"), at Lender"s office located at _________(ADDRESS)or at such other place as Lender may from time to time designate in writing, in lawful money of the United States, the principal sum of _________ DOLLARS ($,_________) (the "Loan"), with interest, all as provided below.
1. Rate of Interest. Interest on the principal amount outstanding under this Note shall accrue at an annual rate equal to _________%. Such interest rate shall be increased by _________% on each anniversary of the date of the Subordinated Note so that in the fifth year the rate shall be _________% per annum and such rate shall thereafter remain at _________% per annum. Interest payable hereunder shall be calculated for actual days elapsed on the basis of a _________-day year. Notwithstanding anything in this Note, the interest rate charged hereon shall not exceed the maximum rate allowable by applicable law. If any stated interest rate herein exceeds the maximum allowable rate, then the interest rate shall be reduced to the maximum allowable rate, and any excess payment of interest made by Borrower at any time shall be applied to the unpaid balance of any outstanding principal of this Note.
2. Maturity Date. The "Maturity Date" shall mean _________,_________,_________(M,D,Y), or such later date as may be designated by Lender in writing.
3. Payment of Interest and Principal.
(a) Accrued interest shall be due and payable on the first day of each quarter, beginning _________,_________,_________(M,D,Y) and on the date of repayment of the Loan in full. Unless prepaid pursuant to Section 3(b) hereof, the principal of the Loan shall be repaid on the Maturity Date.
(b) The outstanding principal amount of this Note may be prepaid by the Borrower upon notice to the Lender in whole at any time or in part from time to time without any prepayment penalty or premium; provided, that upon such payment any interest due to the date of such prepayment on such prepaid amount shall also be paid. In addition, the Borrower shall, without any notice or demand whatsoever, prepay this Subordinated Note in full upon the consummation of an initial public offering (which includes a rights offering) of any securities of the Borrower.
4. Subordination to Bank. Borrower"s obligations under this Subordinated Note, regardless of whether demand for payment has been made by Lender, and the lien and security interest granted pursuant to the Loan Agreement (as hereinafter defined) are subject and subordinate to Borrower"s obligations to American National Bank and Trust Company of Chicago (the "Bank") and all liens and security interests granted by Borrower to the Bank in accordance with a certain Subordination Agreement between the Bank and the Lender.
5. Other Loan Documents. This Subordinated Note is issued in connection with, and subject to the provisions of, that certain loan and security agreement, dated the date hereof, by and between Borrower and Lender (the "Loan Agreement") and is secured by the property described in the Loan Agreement and by such other collateral as previously may have been or may in the future be granted to Lender to secure this Subordinated Note.
6. Method and Application of Payments. All amounts payable hereunder shall be paid by Borrower in immediately available and freely transferable funds at the place designated by Lender to Borrower for such payment. All payments made on this Subordinated Note shall be applied to fees and expenses (including attorneys" fees), accrued interest and principal in any order Lender may choose, in its sole discretion.
7. Events of Default. Each of following events shall constitute an event of default (an "Event of Default") hereunder :
a. If Borrower shall fail to pay when due any interest or principal or any other sum payable to Lender hereunder, and such failure continues unremedied for _________(_________) days after the due date thereof.
b. If any representation or warranty made by Borrower to Lender in any statement, certificate or other document including, but not limited to, the Loan Agreement or any other documents now or in the future securing the obligations of Borrower to Lender, is false, erroneous or misleading in any material respect.
c. If Borrower shall default in the performance of any other agreement or covenant with Lender contained in any document including, but not limited to, the Loan Agreement or any other documents now or in the future securing the obligations of Borrower to Lender, and such default shall continue uncured for _________ (_________) days after written notice thereof to Borrower given by Lender (or, if such default cannot reasonably be cured within such _________ (_________) day period and Borrower is proceeding to cure with reasonable diligence, such period of time as shall be reasonably necessary to cure such default, but in no event more that _________ (_________) days).
d. If Borrower shall become insolvent, bankrupt or shall generally fail to pay its debts as such debts become due; or if Borrower shall admit in writing its inability to pay its debts; or if Borrower shall suffer a receiver or trustee for it or substantially all of its property to be appointed; or if Borrower makes an assignment for the benefit of creditors; or if proceedings under any law related to bankruptcy or insolvency or the reorganization or the release of debtors are instituted against Borrower and are not dismissed or stayed within _________ (_________) days; or if a receiver or trustee for Borrower or substantially all of its property shall be appointed without Borrower"s consent and such receiver or trustee shall not be discharged within _________ (_________) days; or if proceedings relating to Borrower under any law related to bankruptcy or insolvency or the reorganization or the release of debtors are instituted or commenced by Borrower.
e. A Default (as defined in the Credit Agreement as now in effect) shall have occurred or exist.
8. Remedies. Upon the occurrence of any Event of Default, (a) Borrower"s right to request further advances under the Loan Agreement shall terminate, (b) interest shall automatically and without notice begin to accrue on the outstanding balance of this Note at the aforesaid interest rate plus _________%, (c) the entire unpaid principal amount of this Subordinated Note and all unpaid interest accrued thereon shall, at the sole option of Lender upon notice to Borrower, become immediately due and payable, (d) Lender shall have the right to offset all amounts owed by Borrower hereunder against any amounts owed by Lender in any capacity to Borrower, whether or not due, and (e) Lender shall thereupon have the immediate right to exercise from time to time all rights and remedies available to Lender under the Loan Agreement or now or hereafter available at law or in equity, including the rights of a secured party under the Uniform Commercial Code, all of which shall be cumulative in nature.
9. Guarantee. Without limiting the effect of the Subsidiary"s joint and several responsibility with the Parent for all duties, obligations, and liabilities of the Borrower under this Subordinated Note and the related Loan Agreement, the Subsidiary, by executing this Subsidiary"s Note, also absolutely and unconditionally guarantees, to and in favor of Lender, the prompt payment and performance of all principal, interest and other sums due and owing with respect to this Subordinated Note, when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise, and the due and punctual performance of all duties, obligations, and liabilities of the Borrowers" under this Subordinated Note and the related Loan Agreement and the documents executed in connection therewith. The Subsidiary hereby agrees that its obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity, or unenforceability of any provision of this Subsidiary"s Note or any other loan documents.
10. Miscellaneous. Except as expressly set forth herein, Borrower hereby waives presentment, demand, protest and notice of dishonor and protest, and also waives all other exemptions; and agrees that extension or extensions of the time of payment of this Note or any installment or part thereof may be made before, at or after maturity by agreement by Lender. Borrower shall pay to Lender, upon demand, all costs and expenses that may be incurred by Lender in connection with the enforcement of this Subordinated Note including, without limitation, reasonable fees and expenses of Lender"s counsel. Notices required to be given hereunder shall be given in accordance with the provisions of the Loan Agreement, as amended from time to time. Any failure by Lender to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time. No amendment to or modification of this Subordinated Note shall be binding upon Lender unless in writing and signed by it. Any provision hereof found to be illegal, invalid or unenforceable for any reason whatsoever shall not affect the legality, validity or enforceability of the remainder hereof. This Subordinated Note shall apply to and bind the successors of Borrower and shall inure to the benefit of Lender, its successors and assigns; provided, however, that Borrower may not assign its rights and obligations under this Note without the express prior written consent of Lender. The Subordinated Note shall be governed by and interpreted in accordance with the laws of the State of _________(PLACENAME).
IN WITNESS WHEREOF, Borrower, by its duly authorized officer intending to be legally bound hereby, has duly executed this Subordinated Note as of the date first written above.
AAA Incorporated BBB Incorporated
By:_________ By:_________
Name:_________ Name:_________
Title:_________ Title:_________
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