EXHIBIT 10.32
This note supercedes and replaces the note dated December 20, 1999 executed
by the Borrower in favor of the Bank in the amount of $10,000,000.00
PROMISSORY NOTE
U.S. $10,000,000.00
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March 16, 2000 New York, New York
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1. OBLIGATION AND REPAYMENT: For value received, Borrower absolutely and
unconditionally promises to pay to the order of the Bank, at the Office,
without defense, setoff or counterclaim, the principal amount of Ten
Million and 00/100 United States Dollars, together with interest and any
other sum(s) due as specified below. The principal amount of this Note
shall be due and payable as follows (complete one of the following as
applicable):
(A) [ ] ON DEMAND.
(B) On May 31, 2001; and
(C) In consecutive installments, of which each but the last shall be
$_____________ and the last of which shall be equal to the then
unpaid principal balance of this Note. The first such installment
shall be due on ______________, 19__. Each subsequent installment
shall be due on the corresponding day of each month/ quarter/
other __________ thereafter (or if there is no such corresponding
day, on the last day of such period). The remaining principal
balance shall be due on ______________, 19__.
(D) [X] In accordance with the attached Rider.
2. INTEREST: Subject to paragraph A(2) of the Terms and Conditions, interest
shall accrue on the principal amount of this Note outstanding from time
to time at the following rate (the "Loan Rate") (complete one of the
following as applicable):
(A) A fixed rate equal to ______% per year.
(B) A Variable Prime-Based Rate equal to the Prime Rate plus ______%
per year.
(C) [X] In accordance with the attached Rider.
Interest shall be payable monthly/ quarterly/ (other) _____________ and
at any Payment Date and at any time that any part of the principal or any
installment of this Note is paid.
3. RIDERS: IN THE EVENT OF ANY INCONSISTENCY BETWEEN THIS NOTE AND ANY
RIDER(S) TO WHICH THIS NOTE IS SUBJECT, THE PROVISIONS OF SUCH RIDER(S)
SHALL PREVAIL. THIS NOTE IS SUBJECT TO ANY RIDER(S) REFERRED TO IN
PARAGRAPH 1(D) AND/OR 2(C) AND TO THE FOLLOWING RIDER(S), ALL OF WHICH
ARE PART OF THIS NOTE:
Multiple-Loan Rider to Promissory Note
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(Libor-Based Rate)
4. ADDRESS AND IDENTIFICATION OF BORROWER:
Address: 800 Regency Parkway
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Cary, NC 27511
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Telex or similar number:
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Answerback:
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Telecopy or similar number:
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Social Security or Taxpayer ID number:
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5. AGREEMENT TO ALL TERMS AND CONDITION; AUTHORIZATION TO COMPLETE BLANKS:
THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW AND ON
THE REVERSE SIDE OF THIS NOTE. EACH OF THE UNDERSIGNED AGREES TO ALL OF
THE PROVISIONS OF THIS NOTE, INCLUDING THE TERMS AND CONDITIONS AND ANY
RIDER(S). THE BANK IS AUTHORIZED TO COMPLETE ANY BLANK SPACE IN THIS
NOTE. SUCH COMPLETION SHALL BE CONCLUSIVE, FINAL AND BINDING ON BORROWER
IN THE ABSENCE OF MANIFEST ERROR.
6. NO REPRESENTATIONS OR AGREEMENTS BY THE BANK: EACH OF THE UNDERSIGNED
ACKNOWLEDGES THAT THE BANK HAS MADE NO REPRESENTATION, COVENANT,
COMMITMENT OR AGREEMENT TO BORROWER EXCEPT PURSUANT TO ANY WRITTEN
DOCUMENT EXECUTED BY THE BANK.
7. NO REPRESENTATION OF NONENFORCEMENT: EACH OF THE UNDERSIGNED ACKNOWLEDGES
THAT NO REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED OR INDICATED
THAT THE BANK WILL NOT ENFORCE ANY PROVISION OF THIS NOTE, INCLUDING THE
TERMS AND CONDITIONS AND ANY RIDER(S), IN THE EVENT OF LITIGATION OR
OTHERWISE.
8. WAIVER OF JURY TRIAL: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, AND UNDERSTANDS THAT THE BANK
WAIVES, THE RIGHT TO A JURY TRIAL WITH RESPECT TO ANY DISPUTE ARISING
HEREUNDER OR RELATING TO ANY OF THE LIABILITIES; ANY JUDICIAL PROCEEDING
WITH RESPECT TO ANY SUCH DISPUTE SHALL TAKE PLACE WITHOUT A JURY.
9. EXECUTION OF PROMISSORY NOTE:
Print name of Borrower: Level 8 Systems, Inc.
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(Signature) By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Print name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Title or capacity: President
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(if signing on behalf of ▇▇▇▇▇▇▇▇)
(Signature) By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title or capacity: SVP, Secretary
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(if signing on behalf of ▇▇▇▇▇▇▇▇)
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TERMS AND CONDITIONS
Definitions are set forth in paragraph M
A. CALCULATION AND ACCRUAL OF INTEREST: (1) GENERALITY. Interest shall be
calculated on a daily basis on outstanding balances at the Applicable
Rate, divided by 360, on the actual days elapsed. During any time that
the Applicable Rate would exceed the applicable maximum lawful rate of
interest, the Applicable Rate shall automatically be reduced to such
maximum rate. Any interest payment made in excess of such maximum rate
shall be applied as, and deemed to be, in the Bank's sole discretion, (a)
a payment of any of the Liabilities, in such manner as determined by the
Bank, or (b) cash collateral to be retained by the Bank to secure
repayment of this Note. (2) INCREASED RATE. Interest shall accrue at the
Increased Rate upon and after (a) the occurrence of any Debtor Relief
Action, (b) any demand of payment of this Note (if payable on demand) or
(c) the occurrence of any Event of Default (if this Note is payable other
than on demand). (3) ACCRUAL. To the extent permitted by Law, interest
shall accrue at the Applicable Rate on all unpaid Liabilities under this
Note, including but not limited to any unpaid interest and any unpaid
obligation owed pursuant to paragraph B (Indemnification).
B. INDEMNIFICATION: To the extent permitted by Law: (1) TAXES: All payments
under this Note shall be made free and clear of, and without deduction
for, any Taxes. If Borrower shall be required to deduct any Taxes in
respect of any sum payable under this Note, then (a) the sum payable
shall be increased so that the Bank shall receive an amount equal to the
sum the Bank would have received had no deductions been made, and (b)
Borrower shall make such deductions and shall pay the amount deducted to
the relevant Governmental Authority. Borrower shall pay to the Bank on
demand, and shall indemnify and hold the Bank harmless from, any and all
Taxes paid by the Bank and any and all liability (including penalties,
interest and expenses) with respect thereto, whether or not such Taxes
were correctly or legally asserted. Within 30 days after any Taxes are
paid, Borrower shall furnish evidence thereof to the Bank. (2) REGULATORY
COSTS. In the event that in connection
with the transaction(s), contemplated by this Note and/or the Bank's
funding of such transaction(s), the Bank is required to incur any
Regulatory Costs in order to comply with any Law issued after the date of
this Note, then Borrower shall pay the Bank on demand, and shall
indemnify and hold the Bank harmless from any and all such Regulatory
Costs. (3) COSTS AND EXPENSES. Borrower shall pay the Bank on demand, and
shall indemnify and hold the Bank harmless from, any and all costs and
expenses. (4) PREPAYMENT COSTS. If Borrower makes any payment of Prepaid
Principal (voluntarily or not), and if the Applicable Rate with respect
to such Prepaid Principal is not a Variable Prime-Based Rate, then
Borrower shall pay to the Bank an amount sufficient to compensate the
Bank for its Prepayment Costs. Borrower acknowledges that determining the
actual amount of Prepayment Costs may be difficult or impossible in any
specific instance. Accordingly, ▇▇▇▇▇▇▇▇ agrees that Prepayment Costs
shall be deemed to be the excess, if any, of (i) the product of (A) the
Prepaid Principle, times (B) the Applicable Rate divided by 360, times
(C) the remaining number of days from the date of the payment to the
applicable Payment Date, over (ii) that amount of interest which the Bank
determines that the holder of a Treasury Obligation selected by the Bank
in the amount (or as close to such amount as feasible) of the Prepaid
Principal and having a maturity date on (or as soon after as feasible)
the applicable Payment Date would earn if that Treasury Obligation were
purchased in the secondary market on the date the Prepaid Principal is
paid to the Bank and were held to maturity. ▇▇▇▇▇▇▇▇ agrees that the
determination of Prepayment Costs shall be based on amounts which a
holder of a Treasury Obligation could receive under these circumstances,
whether or not the Bank actually invests the Prepaid Principal in any
Treasury Obligation. (5) BANK CERTIFICATE. The Bank's certificate as to
any amounts owing under this paragraph shall be prima facia evidence of
▇▇▇▇▇▇▇▇'s obligation.
C. SET OFF: Every Account of Borrower with the Bank shall be subject to a
lien and to being set off against the Liabilities. The Bank may at any
time at its option and without notice, except as may be required by law,
charge and/or appropriate and apply all or any part of any such Account
toward the payment of any of the Liabilities.
D. EVENTS OF DEFAULT: The remainder of this paragraph D shall not apply if
this Note is payable on demand. Each of the following shall be an Event
of Default hereunder: (1) NONPAYMENT. (a) The nonpayment when due of any
part of the Liabilities; (b) the prohibition by any Law of payment of any
part of any of the Liabilities; (2) BANKRUPTCY; ADVERSE PROCEEDINGS. (a)
The occurrence of any Debtor Relief Action; (b) the appointment of a
receiver, trustee, committee, custodian, personal representative or
similar official for any Party or for any Material part of any Party's
property; (c) any action taken by any Party to authorize or consent to
any action set forth in subparagraph D(2)(a) or (b); (d) the rendering
against any Party of one or more judgments, orders, decrees and/or
arbitration awards (whether for the payment of money or injunctive or
other relief) which in the aggregate are Material to such Party, if they
continue in effect for 30 days without being vacated, discharged, stayed,
satisfied or performed; (e) the issuance or filing of any warrant,
process, order of attachment, garnishment or other lien or levy against
any Material part of any Party's property; (f) the commencement of any
proceeding under, or the use of any of the provisions of any Law against
any Material part of any Party's property, including but not limited to
any Law (i) relating to the enforcement of judgments or (ii) providing
for forfeiture to, or condemnation, appropriation, seizure or taking
possession by, or on order of any Governmental Authority; (g) the
forfeiture to, or the condemnation, appropriation, seizure or taking
possession by, or on the order of, any Governmental Authority, of any
Material part of any Party's property; (h) any Party being charged with a
crime by indictment, information or the like. (3) NONCOMPLIANCE. (a) Any
Default with respect to any Agreement with or to the Bank, (b) the giving
to the Bank by or on behalf of any Party at any time of any materially
incorrect or incomplete representation, warranty, statement or
information; (c) the failure of any Party to furnish to the Bank, copies
of its financial statements and such other information respecting its
business, properties, condition or operations, financial or otherwise,
promptly when, and in such form as, reasonably required or requested by
the Bank; (d) any Party's failure or refusal, upon reasonable notice from
the Bank, to permit the Bank's representative(s) to visit such Party's
premises during normal business hours and to examine and make
photographs, copies and extracts of such Party's property and of its
books and records; (e) any Party's concealing, removing or permitting to
be concealed or removed, any part of its property with the intent to
hinder or defraud any of its creditors; (f) any Party's making or
suffering any Transfer of any of its property, which Transfer is deemed
fraudulent under the law of any applicable jurisdiction; (g) the
revocation or early termination of any Party's obligations under any
Agreement with or to the Bank (including, but not limited to any of the
Liabilities) or the validity, binding effect or enforceability of any
such obligations being challenged or questioned, whether or not by the
institution of proceedings. (4) ADVERSE CHANGES. (a) the occurrence of a
Material adverse change in any Party's financial condition; (b) the death
or incompetence (if a person) or the dissolution or liquidation (if a
corporation, partnership or other entity) of any Party or such Party's
failure to be and remain in good standing and qualified to do business in
each jurisdiction Material to such Party; (c) any Material Default with
respect to any Material Agreement other than with or to the Bank; (d) any
Default pursuant to which any Person shall have the power to effect an
Acceleration of any Material Debt; (e) any Acceleration or demand of
payment with respect to any Material Debt; (f) any Party's becoming
insolvent, as defined in the Uniform Commercial Code; (g) the Bank's
believing in good faith that the prospect of payment of any of the
Liabilities or of performance of any other obligation of any Party to the
Bank is impaired; (h) the Material suspension of any Party's business;
(i) any Party's Material failure to pay any tax when due; (j) the
expulsion of any Party from any exchange or self-regulatory organization
or any loss, suspension, nonrenewal or invalidity of any Party's Material
license, permit, franchise, patent, copyright, trademark or the like; (k)
the occurrence of any event which gives any Person the right to assert a
lien, levy or right of forfeiture against any Material part of any
Party's property; (l) ▇▇▇▇▇▇▇▇'s failure to give the Bank notice, within
10 Business Days after Borrower had notice or knowledge, of the
occurrence of any event which, with the giving of notice and/or lapse of
time, would constitute an Event of Default. (5) BUSINESS CHANGES. (a) any
change in Control of any Party; (b) any merger or consolidation involving
any Party; (c) any Party's sale or other Transfer or substantially all of
its property; (d) any bulk sale by any Party; (e) any Material change in
the nature or structure of any Party's business. (6) EXCHANGE CONTROLS.
(a) Any Party's failure to obtain any Exchange Control Permit deemed by
the Bank to be necessary or appropriate; (b) the failure to obtain the
renewal of any such Exchange Control Permit at least 30 days prior to its
expiration.
E. REMEDIES: (1) ACCELERATION AT BANK'S OPTION. Upon any failure to pay this
Note in full on demand (if payable on demand) or (if this Note is payable
other than on demand) upon the occurrence of any Event
2
of Default other than any Debtor Relief Action, then any and all
Liabilities, not then due, shall, at the Bank's option, become
immediately due and payable without notice, which Borrower waives. (2)
AUTOMATIC ACCELERATION. Upon the occurrence of any Debtor Relief Action,
then, whether or not any of the Liabilities are payable upon demand and
notwithstanding paragraph F, any and all Liabilities, not then due, shall
automatically become immediately due and payable without notice or
demand, which Borrower waives. (3) Additional Remedies. The Bank shall
have all rights and remedies available to it under any applicable
Agreement or Law.
▇. ▇▇▇▇▇▇ OF PROTEST, ETC.: Notice, presentment, protest, notice of dishonor
and except for such of the Liabilities as are payable on demand, but
subject to subparagraph E(2) demand for payment are hereby waived as to
all of the Liabilities.
G. PAYMENT: (1) MANNER. Any payment by other than immediately available
funds shall be subject to collection, interest shall continue to accrue
until the funds by which payment is made are available to the Bank. If
and to the extent any payment of any of the Liabilities is not made when
due, the Bank is authorized in its discretion to effect payment by
charging any amount so due against any Account of Borrower with the Bank
without notice, except as may be required by law, whether or not such
charge creates an overdraft. (2) Application. Any payment received by the
Bank (including a deemed payment under paragraph A, a set-off under
paragraph C or a charge against an Account under this paragraph G) shall
be applied to pay any obligation of indemnification (including but not
limited to under paragraph B) and to pay any other Liabilities (including
interest thereon and the principal thereof) in such order as the Bank
shall elect in its discretion. Borrower will continue to be liable for
any deficiency. (3) PREPAYMENT. Borrower shall be entitled to pay any
outstanding principal amount or installment under this Note on any
Business Day prior to the applicable Payment Date without the prior
consent of the Bank provided that (a) any such payment shall be together
with payment of all Liabilities then due and all interest accrued on the
Prepaid Principal to the date of such payment, and (b) if the Applicable
Rate with respect to such Prepaid Principal is not a Variable Prime-Based
Rate, any such payment shall be on not less than 5 Business Day's notice
to the Bank and shall be accompanied by any amount required pursuant to
subparagraph B(4). Any such payment shall, unless otherwise consented to
by the Bank, be applied pro rata to the last outstanding principal
amount(s) to become due under this Note in inverse order of maturity. (4)
NON-BUSINESS DAYS. If any payment of any of the Liabilities is due on any
day that is not a Business Day, it shall be payable on the next Business
Day. The additional day(s) shall be included in the compilation of
interest. (5) EXTENSION AT BANK'S OPTION. The Bank shall have the option,
which may be exercise one or more times by notice(s) to Borrower, to
extend the date on which any amount is payable hereunder to one or more
subsequent date(s) set forth in such notice(s).
H. PARTIES; NO TRANSFER BY ▇▇▇▇▇▇▇▇: If Borrower is more than one Person,
all of them shall be jointly and severally liable under the Note. The
obligations under this Note shall continue in force and shall apply
notwithstanding any change in the membership of any partnership executing
this Note, whether arising from the death or retirement of one or more
partners or the accession of one or more new partners. Without the Bank's
written consent, Borrower shall have no right to make any Transfer of any
of the Liabilities, any such purported Transfer shall be void. Subject to
the foregoing, the provisions of this Note shall be binding on ▇▇▇▇▇▇▇▇'s
executors, administrators, successors and assigns.
I. BANK TRANSFERS: (1) TRANSFERABILITY. Without limiting the Bank's rights
hereunder, the Bank may make a Transfer of all or any part of (a) any
obligation of Borrower to the Bank (including but not limited to any of
the Liabilities); (b) any obligation of any other Party in connection
with any of the Liabilities; (c) any Agreement of any Party in connection
with any of the Liabilities; (d) any collateral, mortgage, lien or
security interest, however denominated, securing any of the Liabilities;
and/or (e) the Bank's rights and, if any, obligations with respect to any
of the foregoing. (2) EXTENT OF TRANSFER. In the event the Bank shall
make any Transfer of any of the foregoing items ("Transferred Items"),
then - to the extent provided by the Bank with respect to such Transfer,
the Transferee shall have the rights, powers, privileges and remedies of
the Bank. The Bank shall thereafter, to the extent of such Transfer, be
forever relieved and fully discharged from all liability or
responsibility, if any, that it may have to any Person with respect
thereto, except for claims, if any, arising prior to or upon such
Transfer. The Bank shall retain all its rights and powers with respect to
any Transferred items to the extent that it has not made a Transfer
thereof. Without limiting the foregoing, to the extent of any such
Transfer, paragraph B (indemnification) shall apply to any Taxes,
Regulatory Costs, Costs and Expenses and Prepayment Costs of, or incurred
by, any Transferee, and paragraphs C (Set-Off) and G(1) (Payment-Manner)
shall apply to any Account of Borrower with any Transferee. (3)
DISCLOSURES. The Bank is authorized to disclose to any prospective or
actual Transferee any information that the Bank may have or acquire about
Borrower and any information about any other Person submitted to the Bank
by or on behalf of Borrower. (4) NEGOTIABILITY DEFENSES WAIVED. IF THIS
NOTE IS NOT A NEGOTIABLE INSTRUMENT, BORROWER WAIVES ALL DEFENSES (EXCEPT
SUCH DEFENSES AS MAY BE ASSERTED AGAINST A HOLDER IN DUE COURSE OF A
NEGOTIABLE INSTRUMENT) WHICH BORROWER MAY HAVE OR ACQUIRE AGAINST ANY
TRANSFEREE WHO TAKES THIS NOTE, OR ANY COMPLETE OR PARTIAL INTEREST IN
IT, FOR VALUE, IN GOOD FAITH AND WITHOUT NOTICE THAT IT IS OVERDUE OR HAS
BEEN DISHONORED OR OF ANY DEFENSE AGAINST OR CLAIM TO IT ON THE PART OF
ANY PERSON.
J. NO ORAL CHANGES; NO WAIVER BY THE BANK; PARTIAL UNENFORCEABILITY. This
Note may not be changed orally. Neither a waiver by the Bank of any of
its options, powers or rights in one or more instances, nor any delay on
the part of the Bank in exercising any of them, nor any partial or single
exercise thereof, shall constitute a waiver thereof in any other
instance. Any provision of this Note which is prohibited, unenforceable
or not authorized in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, unenforceability or
non-authorization, without invalidating the remaining provisions of the
Note in that or any other jurisdiction and without affecting the
validity, enforceability or legality of such provision in any other
jurisdiction.
K. DISPUTES AND LITIGATION: (1) GOVERNING LAW. This Note and the rights and
obligations of the Bank and Borrower hereunder shall be governed by the
internal laws of the State of New York without giving effect to conflict
of laws principles. (2) JURISDICTION, VENUES AND SERVICE OF PROCESS.
Borrower submits to the nonexclusive jurisdiction of the federal and
state courts in the State of New York in New York County with respect to
any dispute that may be made on Borrower by personal deliver at, or by
mail addressed to, any address to which the Bank is authorized to address
notices to Borrower. (3) WAIVER OF DEFENSES, SETOFFS, COUNTERCLAIMS AND
CERTAIN DAMAGES. Borrower waives the right to assert any defense, setoff
or counterclaim in any proceeding relating in any way to this Note or any
transaction contemplated hereby. The Bank shall not have any liability
for negligence,
3
except solely to the extent required by law and not disclaimable, and
except for its own gross negligence or willful misconduct. In any event,
the Bank shall not have any liability for any special, consequential or
punitive damages. (4) SOVEREIGN IMMUNITY. Borrower irrevocably waives,
with respect to itself and its property, any sovereign immunity that it
may have or hereafter acquire, including but not limited to immunity from
the jurisdiction of any court, from any legal process, from attachment
prior to judgment, from attachment in aid of execution, from execution or
otherwise.
L. NOTICE. Any notice in connection with any of the Liabilities shall be in
writing and may be delivered personally or by cable, telex, telecopy or
other electronic means of communication, or by certified mail, return
receipt requested, addressed (a) to Borrower as set forth herein or to
any other address that the Bank believes to be ▇▇▇▇▇▇▇▇'s address, and
(b) to the Bank at Bank Hapoalim B.M., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention Legal Department. Any such notices shall
be addressed to such other address(es) as may be designated in writing
hereafter. All such notices shall be deemed given when delivered
personally or electronically or when mailed, except notice of change of
address, which shall be deemed to have been given when received.
M. DEFINITIONS. The following definitions apply in this Note: (1)
ACCELERATION. Any acceleration of payment of requirement of prepayment of
any Debt, or any Debt's becoming due and payable prior to stated
maturity. (2) ACCOUNT: (a) the balance of any account of Borrower with
any Person, (b) any claim of Borrower against any Person and/or (c) any
property in the possession or custody of, or in transit to, any Person,
whether for safekeeping, collection, pledge or otherwise, as to which
Borrower has any right, power or interest, in each case whether existing
now or hereafter, in any jurisdiction worldwide, and whether or not
disconnected in the same currency as any of the Liabilities. (3)
AGREEMENT. Any agreement or instrument (including but not limited to this
Note), no matter when made, under which any Party is obligated to any
Person. (4) APPLICABLE RATE. Whichever of the Loan Rate or Increased Rate
is the applicable interest rate at any time. (5) BANK: Bank Hapoalim B.M.
(6) BORROWER. The Person(s) executing this Note at paragraph 9 or any one
or more of them. "Borrower" may refer to one or more Persons. (7)
BUSINESS DAY. Any day on which both (a) banks are regularly open for
business in New York City and (b) the Office is open for ordinary
business in the Bank's discretion, the Office may be closed on any
Saturday, Sunday, legal holiday or other day on which it is lawfully
permitted to close. (8) CONTROL. The power, alone or in conjunction with
others, directly or indirectly, through voting securities, by contract or
otherwise, to direct or cause the direction of a Person's management and
policies. (9) COSTS AND EXPENSES. Any and all reasonable costs and
expenses (including but not limited to attorneys' fees and disbursements)
incurred in connection with the Borrower and/or the Liabilities,
including but not limited to those for (a) any action taken, whether or
not by litigation, to collect, or to protect rights or interests with
respect to, or to preserve any collateral securing, any of the
Liabilities; (b) compliance with any legal process or any order or
directive of any Governmental Authority with respect to any party; (c)
any litigation or administrative proceeding relating to any Party and/or
(d) any amendment, modification, extension or waiver with respect to any
of the Liabilities. (10) DEBT. Any Party's obligation of any sort (in
whole or in part for the payment of money to any Person, whether (a)
absolute or contingent, (b) secured or unsecured, (c) joint, several or
independent, (d) nor or hereafter existing, or (e) due or to become due.
(11) DEBTOR RELIEF ACTION. The commencement by any Party or (unless
dismissed or terminated within 30 days) against any Party of any
proceeding under any law of any jurisdiction (domestic or foreign)
relating to bankruptcy, reorganization, insolvency, arrangement,
composition, receivership, liquidation, dissolution, moratorium or other
relief of financially distressed debtors, or the making by any Party of
any assignment for the benefit of creditors. (12) DEFAULT. Any breach,
default or event of default under, or any failure to comply with, any
provision of any Agreement. (13) EVENT OF DEFAULT. Any event set forth in
paragraph D. (14) EXCHANGE CONTROL PERMIT. Any permit or license issued
by a Governmental Authority outside the United States under which any
Party is permitted (a) to incur and pay any of the Liabilities in the
United States in any currency(ies) in which denominated or (b) to enter
into, incur and, or perform any other obligation or Agreement. (15)
GOVERNMENTAL AUTHORITY. Any domestic or foreign, national or local (a)
government, (b) governmental, quasi-governmental or regulatory agency or
authority, (c) court or (d) central bank or other monetary authority.
(16) INCREASED RATE. (a) If the Loan Rate is a Variable Prime-Based Rate,
the Increased Rate with respect to the entire outstanding principal
balance shall be the Loan Rate plus 2% per year; (b) if the Loan Rate is
not a Variable Prime-Based Rate, the Increased Rate with respect to any
amount of principal or installment shall be (i) the Loan Rate plus 2% per
year prior to the applicable Payment Date and (ii) the Prime Rate plus 4%
per year on or subsequent to the applicable Payment Date. (17) LAW. Any
treaty, law, regulation, rule, Judgment, order, decree, guideline,
interpretation or request (whether or not having the force of law) issued
by any Governmental Authority. (18) LIABILITIES. (a) any and all of the
Debt evidenced by this Note, and any and all other Debt of Borrower to,
or held or to be held by, the Bank in any jurisdiction worldwide for its
own account or as agent for another or others, whether created directly
or acquired by Transfer or otherwise, and (b) any and all obligations of
any other Party with respect to any of such Debt. (19) LOAN RATE. The
interest rate determined under paragraph 2. (20) MATERIAL. Material to
the business or financial condition of any Party on a consolidated or
consolidating basis. (21) OFFICE. The Bank's office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other place as the Bank may
specify by notice. (22) PARTY. (a) borrower; (b) any maker co-maker or
endorser or any Agreement evidencing or any guarantor surety,
accommodation party or indemnitor with respect to, or any Person that
provides any collateral as security for, or any Person that issues a
subordination, comfort letter, standby letter of credit, repurchase
agreement, put agreement, option, other Agreement or other credit support
with respect to any of the Liabilities; (c) if any Party is a partnership
or joint venture, any general partner or joint venturer in such Party,
and (d) any Person (i) that is under the Control of any Party and (ii)
whose business or financial condition is Material to such Party. (23)
PAYMENT DATE. Any Business Day on which any part of the principal or any
installment of this Note becomes due and payable under paragraph 1 (and
not on account of an Acceleration). (24) PERSON. Any person, partnership,
joint venture, company, corporation, uncorporated organization or
association, trust, estate, Governmental Authority, or any other entity.
(25) PREPAID PRINCIPAL. Any amount of principal or any installment of
this Note which Borrower pays prior to the applicable Payment Date for
such amount. (26) PREPAYMENT COSTS. All losses, costs and expenses
incurred as a result of receiving Prepaid Principal and of reinvesting it
at rate(s) which may be less than the Applicable Rate
4
for such Prepaid Principal. (27) PRIME RATE. The Bank's New York Branch's
stated Prime Rate as reflected in the books and records as such Prime
Rate may change from time to time. The Bank's determination of its Prime
Rate shall be conclusive and final. The Prime Rate is a reference rate
and not necessarily the lowest interest rate charged by the Bank. (28)
REGULATORY COSTS. Any and all costs and expenses of complying with any
Law, including but not limited to with respect to (a) any reserves or
special deposits maintained for or with, or pledges to, any Governmental
Authority, or (b) any capital, capital equivalency ledger account, ratio
of assets to liabilities, risk-based capital assessment or any other
capital substitute, risk-based or otherwise. (29) Taxes. Any and all
present and future taxes, levies, imposts, deductions, charges and
withholdings in any jurisdiction worldwide, and all liabilities with
respect thereto, which are imposed with respect to this Note or to any
amount payable under this Note, excluding taxes determined on the basis
of the net income of a Person or of any of its offices. (30) TRANSFER.
Any negotiation, assignment, participation, conveyance, grant of a
security interest, lease, delegation, or any other direct or indirect
transfer of a complete or partial, legal, beneficial, economic or other
interest or obligation. (31) TRANSFEREE. Any Person to whom a Transfer is
made. (32) TRANSFERRED ITEMS. Items defined in paragraph I. (33) TREASURY
OBLIGATIONS. A note, bill or bond issued by the United States Treasury
Department as a full faith and credit general obligation of the United
States. (34) VARIABLE PRIME-BASED RATE. Any Applicable Rate which is
determined based on the Prime Rate. Any such rate shall change
automatically when and as the Prime Rate changes.
5
Multiple-Loan Rider to Promissory Note
(Libor-Based Rate)
This Rider is referred to in paragraph 2(c) of, and constitutes a part of, a
note of Borrower to the Bank dated March 16, 2000.
===============================================================================
SPECIFIC TERMS
(a) Margin: 1.00% per year
(b) Interest Period: (__) _________ days [x] 1, 2 or 3 months and [x] as
agreed from time to time
(c) Minimum Draw Amount: U.S. $500,000.00 [ ] None
----------------
(d) Minimum Multiple Amount: U.S. $ [ ] None
------------
===============================================================================
▇▇▇▇▇▇▇▇ agrees to the above Specific Terms and to all of the Terms and
Conditioning set forth below.
Print Borrower's Name: Level 8 Systems, Inc.
------------------------------------------------------
(Signature) By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (Signature) By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
---------------------
Print Name and : ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Print Name and : ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
title President title SVP
TERMS AND CONDITIONS
Certain capitalized terms are defined in paragraph 4.
1. Advances. Borrower may receive a Loan in any principal amount upon
▇▇▇▇▇▇▇▇'s request to the Bank and the Bank's agreement thereto, subject
to all of the following conditions:
(a) Agreement of the Bank and Borrower. Subject to subparagraphs 1(b),
1(c) and 2(b), the Bank and Borrower shall have agreed, not later
than the Determination Time, with respect to the Loan's (i)
principal amount, (ii) LIBOR-Base Rate and (iii) Interest Period;
provided, however, that if the Bank determines that by such
Determination Time, Borrower has failed or declined to agree on
the LIBOR-Based Rate and/or Interest Period with respect to such
Outstanding Principal Amount, then interest on such Outstanding
Principal Amount shall accrue at the LIBOR-Based Rate without the
agreement of Borrower, and the Interest Period shall be of the
same duration as
the Interest Period just ended with respect to such Outstanding
Principal Amount or, if there was no such prior Interest Period,
one month.
(b) Applicable limitations. (i) The applicable Payment Date shall not
be later than the Due Date; (ii) the total of the Outstanding
Principal Amounts of all Loans shall not exceed the principal
amount set forth in the Note; (iii) the principal amount of any
single Loan request shall be not less than any Minimum Draw Amount
set forth under Specific Terms; and (iv) the principal amount of
any single Loan request shall be an integral multiple of any
Minimum Multiple Amount set forth under Specific Terms.
(c) ▇▇▇▇▇▇▇▇'s request and agreement. ▇▇▇▇▇▇▇▇'s request for a Loan
and ▇▇▇▇▇▇▇▇'s agreement to the terms thereof shall be
communicated to the Bank in any form that is acceptable in each
instance to the Bank in its sole discretion, which may include
telephone, telex, telecopy or a writing executed by ▇▇▇▇▇▇▇▇.
Borrower shall have provided the Bank with documentation,
satisfactory in form and substance to the Bank in its sole
discretion, confirming the authority of the person(s) agreeing to
such terms on behalf of ▇▇▇▇▇▇▇▇.
2. Payment of Principal and Interest. Subject to the other provisions of the
Note:
(a) Obligation and Time of Repayment. Each Outstanding Principal
Amount shall be due and payable at the applicable Payment Date.
(b) Loan Rate. Interest on any Outstanding Principal Amount shall
accrue at the LIBOR-Based Rate; provided, however, that if the
Bank determines (i) that by the Determination Time (A) by reason
of circumstances affecting the London Interbank Market generally,
adequate and fair means do not exist for ascertaining an
applicable LIBOR rate or it is impractical for the Bank to fund or
continue to fund the Outstanding Principal Amount during the
applicable Interest Period, or (B) quotes for funds in United
States Dollars in sufficient amounts comparable to the relevant
Outstanding Principal Amount and for the duration of the
applicable Interest Period would not be available to the Bank in
the London Interbank Market, or (C) quotes for funds in United
States Dollars in the London Interbank Market will not accurately
reflect the cost to the Bank of making a Loan or of funding the
relevant Outstanding Principal Amount during the applicable
Interest Period, or (ii) that at any time the making or funding of
loans, or charging of interest at rates, based on LIBOR shall be
unlawful or unenforceable for any reason, then as long as such
circumstance(s) shall continue, interest on the relevant
Outstanding Principal Amount shall accrue at the Alternate Rate.
(c) Payment and Calculation of Interest. Interest shall be payable (i)
at each Payment Date or (whenever the Applicable Rate is a
variable Prime-Based Rate) monthly, (ii) at the Due Date and (iii)
at any time that any Outstanding Principal Amount or part thereof
is paid. Interest shall be calculated as set forth in the Note.
3. Bank's Conclusive Determinations and Schedule. The Bank's determination
with respect to any matter hereunder shall be conclusive, final and
binding on Borrower, absent manifest
2
error. The Bank shall from time to time record the date and amount of
each Loan, the Applicable Rate, each date on which any part of principal,
interest or any other amount shall be due and payable, and the amount and
date of each payment of principal, interest or any other amount, on a
schedule, which in the Bank's discretion may be computer-generated, and
which is incorporated in, and is a part of, the Note and this Rider (the
"Schedule"). The Schedule shall be conclusive, final and binding upon
Borrower, absent manifest error; provided, however, that the failure of
the Bank to record any of the foregoing shall not limit or otherwise
affect the obligation of Borrower to pay all amounts owed to the Bank
under the Note. Without limiting the foregoing, Borrower acknowledges
that the Interest Period and the Applicable Rate with respect to any
Outstanding Principal Amount are subject to the Bank's consent ordinarily
negotiated between Borrower and the Bank by telephone, and ▇▇▇▇▇▇▇▇
agrees that in the event of any dispute as to any of the terms of any
Loan, the determination of the Bank and its respective entry with respect
thereto on its books and records and/or on the Schedule shall be
conclusive, final and binding on Borrower, absent manifest error.
4. Definitions. Each capitalized term not defined herein shall have the
meaning ascribed thereto in the Note. The following definitions apply in
this Rider and in the Note, and shall prevail over any different
definitions in the Note.
(a) Alternate Rate: an annual Variable Prime-Based Rate equal to the
Prime Rate plus the Margin.
(b) Applicable Rate: whichever of the Loan Rate or Increased Rate is
the applicable interest rate at any time with respect to any
Outstanding Principal Amount.
(c) Determination Time: 12:00 noon (or any later time determined by
the Bank in its sole discretion), New York City time, of a Working
Day that is three Working Days prior to the date of the Loan.
(d) Due Date: the date set forth in paragraph 1(b) of the Note or, if
the Bank has extended such date pursuant to paragraph G(5) of the
Note or by an agreement with Borrower, such extended date.
(e) Interest Period: any term of 1 day, 1 week, 1 to 6, 9 or 12
months, or such other term as may be acceptable to the Bank in its
discretion, as set forth above under Specific Terms or, if not so
set forth, as selected or agreed to by the Bank in its discretion.
A term shall not be considered as "Interest Period" during any
period that the Applicable Rate is a Variable Prime-Based Rate.
Each Interest Period shall commence immediately at the end of the
preceding Interest Period, if any; if there had been no
immediately preceding Interest Period with respect to any
Outstanding Principal Amount, the Interest Period shall commence
on the first Business Day on which (i) such amount shall be
outstanding and (ii) the Applicable Rate is not a Variable
Prime-Based Rate. If any Interest Period would otherwise come to
an end on a day which is not a Working Day, its termination shall
be postponed to the next day that is a Working Day unless it would
thereby terminate in the next calendar month. In such
3
case, such Interest Period shall terminate on the immediately
preceding Working Day.
(f) LIBOR: the rate or rates established by the New York Branch of the
Bank two Working Days prior to the date of the Loan, by applying
the following: (i) the British Bankers Association ("BBA")
Interest Settlement Rates for U.S. Dollars, as defined in the BBA
official definitions and reflected on the Telerate BBA pages, for
the applicable amounts and interest periods, which rates reflect
the offered rates at which deposits are being quoted to prime
banks in the London Interbank Market at 11:00 A.M. London Time
calculated as set forth in said BBA official definition; or (ii)
such other recognized source of London Eurodollar deposit rates as
the Bank may determine from time-to-time. In the event the
applicable BBA page or pages shall be replaced by another Telerate
page or other Telerate pages for quoting London Eurocurrency
rates, then rates quoted on said replacement page or pages shall
be applied. If the Bank determines that London Eurocurrency rates
are no longer being quoted (temporarily or permanently) on any
Telerate pages or that Telerate is no longer functioning
(temporarily or permanently) in substantially the same manner as
on the date hereof, then the Bank shall notify the Borrower of a
substitute, publicly available reference for the determination of
LIBOR. If the Bank determines in its sole discretion that LIBOR
cannot be determined or does not represent its effective cost of
maintaining Loans under this Note, then interest shall accrue at
the effective cost to the Bank to maintain the Loans (as
determined by the Bank in its sole discretion).
(g) LIBOR-Based Rate: an annual rate equal to LIBOR plus the Margin,
as determined by the Bank.
(h) Loan: (i) any loan advanced by the Bank to the Borrower under the
Note; (ii) any rollover by the Bank of any such loan that is
otherwise due and payable or (iii) any conversion of the
Applicable Rate for any Outstanding Principal Amount from a rate
that is a Variable Prime-Based Rate to one that is not, or vice
versa.
(i) Loan Rate: the interest rate determined under subparagraph 1(a)
and/or 2(b).
(j) Margin: as set forth under Specific Terms or, if not so set forth,
2% per year.
(k) Note: the note of which this Rider is a part (including any and
all riders and amendments to the Note).
(l) Outstanding Principal Amount: the outstanding principal amount of
each Loan.
(m) Payment Date: the last Business Day of the applicable Interest
Period or, if the applicable Loan Rate is a Variable Prime-Based
Rate, the Due Date.
(n) Working Day: a Business Day on which banks are regularly open for
business in London.
4