Exhibit 10.10
PROMISSORY NOTE
Borrower: Aurum Software, Inc. Lender: Silicon Valley Bank
3385 Scott Blvd. 3003 Tasman Drive
Santa Clara, CA 95054 Santa Clara, CA 95054
Principal Amount: $1,250,000.00 Initial Rate: 9.750% Date of Note: July 15,
1996
PROMISE TO PAY Aurum Software, Inc. ("Borrower") promises to pay to Silicon
Valley Bank ("Lender"), or order, in lawful money of the United States of
America, the principal amount of One Million Two Hundred Fifty Thousand and
00/100 Dollars ($1,250,000.00) or so much as may be outstanding, together with
Interest on the unpaid outstanding principal balance of each advance. Interest
shall be calculated from the date of each advance until repayment of each
advance.
PAYMENT. Borrower will pay this loan in accordance with the following payment
schedule:
The Draw Period shall begin as of this date and shall end on April 30, 1997
(the "Draw Period"). During the Draw Period, Borrower shall pay regular
monthly payments of all accrued unpaid Interest due as of each payment
date, beginning August 30, 1996 and all subsequent Interest payments will
be due on the same day of each month thereafter. The outstanding principal
balance on April 30, 1997, will be payable In thirty (30) even payments of
principal plus Interest due as of each payment date, beginning May 30, 1997
and all subsequent payments of principal plus Interest will be due on the
same day of each month thereafter. The final payment due on October 30,
1999, will be for all outstanding principal plus all accrued Interest not
yet paid.
Interest on this Note is computed on a 365/360 simple interest basis; that is,
by applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number
of days the principal balance is outstanding. Borrower will pay Lender at
Lender's address shown above or at such other place as Lender may designate in
writing. Unless otherwise agreed or required by applicable law, payments will be
applied first to accrued unpaid interest, then to principal, and any remaining
amount to any unpaid collection costs and late charges.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change
from time to time based on changes in an index which is Lender's Prime Rate (the
"Index"). This is the rate Lender charges, or would charge, on 90-day unsecured
loans to the most creditworthy corporate customers. This rate may or may not be
the lowest rate available from Lender at any given time. Lender will tell
Borrower the current Index rate upon Borrower's request. Borrower understands
that Lender may make loans based on other rates as well. The Interest rate
change will not occur more often than each time the prime rate is adjusted by
Silicon Valley Bank. The Index currently is 8.250 per annum. The interest rate
to be applied to the unpaid principal balance of this Note will be at a rate of
1.500 percentage point over the Index, resulting In an initial rate of 9.750%
per annum. NOTICE: Under no circumstances will the interest rate on this Note be
more than the maximum rate allowed by applicable law.
PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance
charges are earned fully as of the date of the loan and will not be subject to
refund upon early payment (whether voluntary or as a result of default), except
as otherwise required by law. Except for the foregoing, Borrower may pay without
penalty all or a portion of the amount owed earlier than it is due. Early
payments will not, unless agreed to by Lender in writing, relieve Borrower of
Borrower's obligation to continue to make payments of accrued unpaid interest.
Rather, they will reduce the principal balance due.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower falls to perform promptly at the time
and strictly in the manner provided in this Note or any agreement related to
this Note, or in any other agreement or loan Borrower has with Lender. (c)
Borrower defaults under any loan, extension of credit, security agreement,
purchase or sales agreement, or any other agreement, in favor of any other
creditor or person that may materially affect any of Borrower's property or
Borrower's ability to repay this Note or perform Borrowers obligations under
this Note or any of the Related Documents. (d) Any representation or statement
made or furnished to Lender by Borrower or on Borrower's behalf Is false or
misleading in any material respect. (e) Borrower becomes Insolvent, a receiver
is appointed for any part of Borrower's property, Borrower makes an assignment
for the benefit of creditors, or any proceeding is commenced either by Borrower
or against Borrower under any bankruptcy or insolvency laws. (f) Any creditor
tries to take any of Borrowers property on or in which Lender has a lion or
security Interest This includes a garnishment of any of Borrower's accounts with
Lender. (g) Any of the events described in this default section occurs with
respect to any guarantor of this Note.
LENDERS RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. Upon Borrower's failure to pay
all amounts declared due pursuant to this section, including failure to pay upon
final maturity, Lender, at its option, may also, If permitted under applicable
low, do one or both of the following: (a) Increase the variable Interest rate on
this Note to 5.000 percentage points over the otherwise effective Interest rate,
and (b) add any unpaid accrued Interest to principal and such sum will bear
interest therefrom until paid at the rate provided In this Note (including any
increased rate). Lender may hire or pay someone else to help collect this Note
if Borrower does not pay. Borrower also will pay Lender that amount. This
Includes, subject to any limits under applicable law, Lender's attorneys' fees
and Lender's legal expenses whether or not there is a lawsuit, including
attorneys' fees and legal expenses for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or Injunction), appeals, and any
anticipated post-judgment collection services. Borrower also will pay any court
costs, in addition to all other sums provided by law. This Note has been
delivered to Lender and accepted by Lender in the State of California, If there
Is a lawsuit Borrower agrees upon Lender's request to submit to the jurisdiction
of the courts of Santa Clara County, the State of California. (Initial Here /s/
) Lender and Borrower hereby waive the right to any jury trial in any action,
proceeding, or counterclaim brought by either Lender or Borrower against the
other. This Note shall be governed by and construed in accordance with the laws
of the State of California.
PROMISSORY NOTE
CONTINUED
LINE OF CREDIT. This Note evidences a straight line of credit through the end
of the Draw Period. Once the total amount of principal has been advanced,
Borrower is not entitled to further loan advances. Advances under this Note, as
well as directions for payment from Borrower's accounts, may be requested orally
or in writing by Borrower or by an authorized person, Lender may, but need not,
require that all oral requests be confirmed in writing. Borrower agrees to be
liable for all sums either (a) advanced in accordance with the instructions of
an authorized person or (b) credited to any of Borrower's accounts with Lender.
The unpaid principal balance owing on this Note at any time may be evidenced by
endorsements on this Note or by Lender's internal records, including daily
computer print-outs. Lender will have no obligation to advance funds under this
Note if: (a) Borrower or any guarantor is in default under the terms of this
Note or any agreement that Borrower or any guarantor has with Lender, including
any agreement made in connection with the signing of this Note; (b) Borrower or
any guarantor ceases doing business or is insolvent; (c) any guarantor seeks,
claims or otherwise attempts to limit, modify or revoke such guarantor's
guarantee of this Note or any other loan with Lender; or (d) Borrower has
applied funds provided pursuant to this Note for purposes other than those
authorized by Lender.
ADVANCE RATE. At any time from the date hereof through the end of the Draw
Period, Borrower may request advances (each an "Advance" and collectively, the
"Advances") from Lender in an aggregate amount not to exceed the principal
amount of the Note. The minimum Advance amount shall be One Hundred Thousand and
00/100 Dollars ($100,000.00) and Borrower will be limited to a total of seven
(7) Advances. To evidence the Advances, Borrower shall deliver to Lender, at the
time of each advance request, an invoice for the Eligible Equipment (as defined
herein) to be purchased. The Advances shall be used only to purchase Eligible
Equipment and shall not exceed one hundred percent (100%) of the invoice amount
approved from time to time by Lender, excluding taxes, shipping and installation
expense, All Advances must be made within ninety (90) days of Borrower's
purchase of the Eligible Equipment. Software licenses, leasehold improvements
and other soft costs may, however, comprise up to ten percent (10%) of the loan
amount. Eligible Equipment shall consist of computer equipment, office
equipment, furniture and other machinery and equipment as approved by Lender, in
which Lender has a valid security interest.
BUSINESS LOAN AGREEMENT. This Note is subject to and shall be governed by all
the terms and conditions of the Business Loan Agreement dated July 13,1993, as
such agreement may be amended from time to time, between Borrower and Lends,
which Business Loan Agreement Is incorporated herein by reference.
PAYMENT OF LOAN FEE. This Note is subject to a loan fee in the amount of Six
Thousand Two Hundred Fifty and 00/100 Dollars ($6,250.00) plus all out-of-pocket
expenses.
REQUEST TO DEBIT. Borrower will regularly deposit funds received from its
business activities In accounts maintained at Silicon Valley Bank. Borrower
hereby authorizes Lender to debit any accounts with Lender, Including, without
limitation, Account Number. 0350178770 for payments of principal and interest
due on the loan and any other obligations owing by Borrower to Lender. Lender
will notify Borrower of all debts which Lender makes against Borrower's
accounts. Any such debts against Borrower's accounts in no way shall be deemed a
set-off.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive any
applicable statute of limitations, presentment, demand for payment, protest and
notice of dishonor. Upon any change in the terms of this Note, and unless
otherwise expressly stated In writing, no party who signs this Note, whether as
maker, guarantor, accommodation maker or endorser, shall be released from
liability. All such parties agree that Lender may renew or extend
(repeatedly and for any length of time) this loan, or release any party or
guarantor or collateral; or impair, fall to realize upon or perfect Lender's
security interest in the collateral; and take any other action deemed necessary
by Lender without the consent of or notice to anyone. All such parties also
agree that Lender may modify this loan without the consent of or notice to
anyone other than the party with whom the modification Is made.
PRIOR TO SIGNING THIS NOTE, BORROWER HAS READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES
TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE
NOTE.
BORROWER:Aurum Software, Inc.
By:/s/Brigitte Wilson
Name:Brigitte Wilson
Title:CFO