Exhibit 10.74
LOAN DOCUMENT MODIFICATION AGREEMENT (No. 4)
LOAN DOCUMENT MODIFICATION AGREEMENT (NO. 4) (the "Agreement"), dated
as of March 28, 2003, by and among LIONBRIDGE US, INC. (f/k/a INT'L.com, Inc.)
("Lionbridge"), a Delaware corporation, in its individual capacity and in its
capacity as successor in interest to each of International Language Engineering
Corporation, formerly a Colorado corporation, and Harvard Translations, Inc.,
formerly a Massachusetts corporation (such predecessors in interest, together
with Lionbridge California and eTesting, as hereinafter defined, the
"Predecessor Borrowers"); VERITEST, INC. (f/k/a Data Dimensions, Inc.)
("VeriTest", and together with Lionbridge, the "Current Borrowers"), a Delaware
corporation, in its individual capacity and in its capacity as successor in
interest to each of Lionbridge Technologies California, Inc. ("Lionbridge
California") and eTesting Labs Inc. ("eTesting"), both formerly Delaware
corporations; and SILICON VALLEY BANK ("Silicon"), a California chartered bank
with its principal place of business at 3003 Tasman Drive, Santa Clara,
California 95054, and with a loan production office located at One Newton
Executive Park, 2221 Washington Street, Suite 200, Newton, Massachusetts 02462,
doing business under the name "Silicon Valley East".
WHEREAS, the Current Borrowers, the Predecessor Borrowers and Silicon
are parties to a certain Loan and Security Agreement, dated as of June 28, 2001,
as amended by Loan Document Modification Agreement (No. 1), dated as of
September 24, 2001, Loan Document Modification Agreement (No. 2), dated as of
April 29, 2002, and Loan Document Modification Agreement (No. 3) and Consent,
dated as of September 20, 2002 (as so amended, with attached schedules and
exhibits, the "Loan Agreement"). Unless otherwise defined herein, capitalized
terms used in this Agreement shall have the respective meanings set forth in the
Loan Agreement;
WHEREAS, pursuant to certain certificates of merger, each of the
Predecessor Borrowers has merged with and into VeriTest or Lionbridge, as the
case may be, with VeriTest and Lionbridge continuing as the surviving entities
of such mergers, with the result that as of the date hereof, the Current
Borrowers are the direct successors in interests to each of the Predecessor
Borrowers;
WHEREAS, the Current Borrowers have requested, and Silicon has agreed,
that the Loan Agreement be modified in order to, among other things, reflect
that the Predecessor Borrowers have merged with and into the Current Borrowers,
and to extend the Maturity Date through April 1, 2005;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Effective Date.
This Agreement shall become effective as of March 28, 2003 (the
"Effective Date"), provided that Silicon shall have received the following
on or before such date and
provided further, that in no event shall this Agreement become effective
until signed by an officer of Silicon in California:
a. two copies of this Agreement, duly executed by the Current Borrowers,
with the attached Consent of Lionbridge Technologies, Inc. ("LTI"), a
Delaware corporation and the ultimate corporate parent of the Current
Borrowers, duly executed thereby;
b. an Amended and Restated Promissory Note (the "Amended Note"), in the
form of Exhibit 1 attached hereto, duly executed by each of the
Current Borrowers;
c. Perfection Certificates, substantially in the form of Exhibit 2
attached hereto, duly executed and completed by an authorized officer
of each Current Borrower;
d. a Guarantee Modification Agreement (No. 2) in the form of Exhibit 3
attached hereto, duly executed by LTI, with the attached Consent of
the Current Borrowers, duly executed thereby;
e. a certificate of the Secretary or other appropriate officer of each
Current Borrower, certifying (i) that the resolutions of its Board of
Directors attached to such certificate, authorizing execution and
delivery of this Agreement and the Amended Note, have been duly
authorized, (ii) that a true and correct copy of the certificate of
incorporation and by-laws, as amended, of such Current Borrower are
attached thereto, which certificate of incorporation and by-laws
remain in full force and effect and have not been further modified or
amended in any respect, and (iii) as to the identity of officer(s)
authorized to execute this Agreement and the Amended Note and to take
all other actions contemplated hereby and thereby, and providing
signature specimens of such officer(s); and
f. certificates of recent date issued by each Current Borrower's state of
organization, certifying as to their legal existence and good standing
in such state.
2. Description of Changes in Terms.
As of the Effective Date, the Loan Agreement is modified in the following
respects:
a. Restatement of Borrowers.
(i) All references to the "Borrower" or the "Borrowers" in the Loan
Agreement and in the other Loan Documents shall be deemed to be a
reference to the Current Borrowers.
(ii) The Predecessor Borrowers shall, for all purposes, cease to be
distinct Borrowers under the Loan Agreement and the other Loan
Documents and all references to the Predecessor Borrowers therein
shall mean and be a reference to VeriTest or Lionbridge, as the
case may be, in their capacities as successors in interest
thereto. The purpose of the forgoing is to reflect that, pursuant
to the mergers described in the recitals to this Agreement,
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the Predecessor Borrowers have ceased to exist as distinct
entities and all rights, powers and privileges, and all debts,
duties, restrictions, liabilities and obligations, of such
Predecessor Borrowers, under the Loan Documents or otherwise,
have succeeded to the Current Borrowers as successors in interest
thereto.
b. Section 1.4. Section 1.4 of the Loan Agreement is hereby amended by
adding the following sentence at the end of said section: "The full
amount of the Loan Fee shall be fully earned by Silicon on April 2,
2003, regardless of when payable; provided, however, in the event the
obligation to extend credit under this Agreement is syndicated or
shared among other financial institutions prior to the Maturity Date,
such Loan Fee shall, for purposes of the allocation thereof among
Silicon and such other financial institutions, be deemed to accrue
monthly, over a two year period commencing April 2, 2003, and any paid
or unpaid portion of the Loan Fee not deemed accrued on or before the
date of syndication or sharing, shall be distributed among Silicon and
such other financial institutions on a pro rata basis in accordance
with their respective commitments to extend credit hereunder."
c. Section 1.5. Section 1.5 of the Loan Agreement is hereby amended by
adding the parenthetical "(plus the Foreign Exchange Reserve)"
immediately after the first appearance of the words "Letters of
Credit" in the second sentence therein.
d. Section 1.6. Section 1.6 of the Loan Agreement is hereby amended by
adding the parenthetical "(plus the aggregate face amount of all
outstanding Letters of Credit)" immediately after the first appearance
of the words "Exchange Contracts" in the second sentence therein.
e. Section 5.5. Clause (viii) of Section 5.5(c) of the Loan Agreement is
hereby amended and restated in its entirety to read as follows:
"incur any debts, other than the subordinated Inside Debt listed on
Exhibit A to the Schedule hereto or subordinated debt incurred (on a
dollar for dollar basis, with the written consent of the Bank) in
substitution thereof, or debts to a subsidiary in the ordinary course
of business, but only to the extent such debt would not have a
material, adverse effect on Borrower or any guarantor (including the
Parent Guarantor) or on the prospect of repayment of the Obligations;"
f. Section 6.2. Section 6.2 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"6.2 Early Termination. So long as no Loans, Letters of Credit or
Exchange Contracts are then outstanding, the credit facility
established under this Agreement may be terminated prior to the
Maturity Date by Borrower providing Silicon written notice thereof not
less than three Business Days prior to the date of the proposed
termination. Such termination shall subject Borrower to, and in the
event Silicon shall exercise its remedy of acceleration pursuant to
Section 7.1(b)
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Borrower shall be subjected to, in addition to any other fees and
amounts payable hereunder, a termination fee (the "Cancellation Fee")
in the amount set forth on the Schedule to this Loan Agreement. In the
event the Cancellation Fee or any other fees or amounts payable
hereunder are not paid in full on the termination date or acceleration
date, as the case may be, such amounts shall bear interest, until paid
in full, at the rate set forth in the Schedule to this Agreement.".
g. Section 7.1. Section 7.1 of the Loan Agreement is amended and restated
as follows:
(i) Section 7.1(m) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"Borrower or Guarantor makes any payment on account of any
indebtedness or obligation which has been subordinated to the
Obligations other than (A) as permitted in the applicable
subordination agreement and hereunder or (B) during any fiscal quarter
commencing on or after April 1, 2003, regularly scheduled payments
(excluding any mandatory or voluntary prepayment, by acceleration or
otherwise) required pursuant to terms of the subordinated debt
documents, on the dates specified therein, but only to the extent the
Aggregated EBITDA for such fiscal quarter then exceeds the sum of the
EBITDA Threshold applicable thereto plus the aggregate amount of all
payments of subordinated debt made on or after April 1, 2003; or if
any Person that has subordinated such indebtedness or obligations
terminates or in any way limits its subordination agreement;"; and
(ii) Section 7.1(q) of the Loan Agreement is amended and restated in
its entirety to read as follows:
"there shall be (i) a Default or Event of Default (as defined in the
Foreign Loan Documents) under the Foreign Loan Documents and/or (ii) a
material breach of any representation or warranty or any breach of any
covenant (including, without limitation, any financial covenant) or
obligation (including, without limitation, any payment obligation) of
the Guarantor under the Parent Guarantee;".
h. Section 8. Section 8 of the Loan Agreement is hereby amended as
follows:
(i) The following additional definitions are inserted therein in
appropriate alphabetical order:
"'Aggregated EBITDA' means, for any fiscal quarter, the sum
(without duplication) of the EBITDAs (as defined in the Parent
Guarantee) for each completed fiscal quarter ending after March
31, 2003."; and
"'EBITDA Threshold' means, for each fiscal quarter specified
below, the respective amount specified below for such fiscal
quarter:
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Fiscal Quarter Ended EBITDA Threshold
-------------------- ----------------
April 1, 2003 - June 30, 2003 $ 1,300,000.00
July 1, 2003 - September 30, 2003 $ 3,250,000.00
October 1, 2003 - December 31, 2003 $ 5,250,000.00
January 1, 2004 - March 31, 2004 $ 7,500,000.00
April 1, 2004 - June 30, 2004 $10,000,000.00
July 1, 2004 - September 30, 2004 $12,750,000.00
October 1, 2004 - December 31, 2004 $15,750,000.00"
"'Eligible Work in Process' means Receivables arising in the
ordinary course of Borrower's business from the sale of goods or
rendition of services (as evidenced by an entry relating to such
goods or services in the sales, time or billing system of
Borrower), which have not been invoiced to the relevant Account
Debtor, which Silicon, in its commercially reasonable judgment,
shall deem eligible for borrowing, based on such commercially
reasonable considerations as Silicon may from time to time deem
appropriate. Without limiting the fact that the determination of
which Receivables are eligible for borrowing hereunder is a
matter of Silicon's discretion, the following are the minimum
requirements by which such Receivables may be deemed to be
Eligible Work in Process: (i) not more than thirty (30) days
shall have passed since the rendition of service or sale of goods
giving rise to such Receivables and (ii) such Receivables shall
satisfy the Eligibility Requirements set forth in clauses (ii)
through (viii) of the definition of Eligible Receivables (and
shall not constitute Eligible Receivables). Notwithstanding
satisfaction of all applicable Eligibility Requirements,
Receivables owing from any individual Account Debtor shall be
ineligible for borrowing (both as Eligible Receivables and as
Eligible Work in Process) to the extent they exceed 25% of the
total of all Receivables then outstanding; provided, however,
Receivables owing from Microsoft Corporation and Hewlett-Packard,
to the extent otherwise satisfying all applicable Eligibility
Requirements, shall be eligible for borrowing (as either Eligible
Receivables or as Eligible Work in Process, as the case may be)
to the extent they do not exceed 35% of the total of all
Receivables then outstanding. In addition, if more than 50% of
Receivables owing from any individual Account Debtor are
outstanding more than 90 days after the applicable invoice
date(s) (without regard to unapplied credits), or otherwise do
not satisfy all applicable Eligibility Requirements, then all
Receivables owing from such Account Debtor shall be ineligible
for borrowing (as Eligible Receivables and as Eligible Work in
Process). Silicon may, from time to time, in its commercially
reasonable judgment, revise any eligibility requirement, upon
written notice to Borrower.";
(ii) The definition of "Eligible Receivables" is amended and restated
in its entirety to read as follows:
"'Eligible Receivables' means Receivables arising in the
ordinary course of Borrower's business from the sale of goods or
rendition of services,
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which have been invoiced to the relevant Account Debtor, which
Silicon, in its commercially reasonable judgment, shall deem
eligible for borrowing, based on such commercially reasonable
considerations as Silicon may from time to time deem appropriate.
Without limiting the fact that the determination of which
Receivables are eligible for borrowing hereunder is a matter of
Silicon's discretion, the following (the "Eligibility
Requirements") are the minimum requirements for such Receivables
may be deemed Eligible Receivables: (i) the Receivable must not
be outstanding for more than 90 days from its invoice date, (ii)
the Receivable must not be subject to any contingencies
(including Receivables arising from sales on consignment,
guaranteed sale or other terms pursuant to which payment by the
Account Debtor may be conditional), (iii) the Receivable must not
be owing from an Account Debtor with whom Borrower has any
material dispute regarding collection (whether or not relating to
the particular Receivable), (iv) the Receivable must not be owing
from an Affiliate of Borrower, (v) the Receivable must not be
owing from an Account Debtor which is subject to any insolvency
or bankruptcy proceeding, or which fails or goes out of a
material portion of its business, or be a Receivable that Silicon
knows or has reason to know presents a material risk of
non-collection, (vi) the Receivable must not be owing from the
United States or any department, agency or instrumentality
thereof (unless there has been compliance, to Silicon's
satisfaction, with the United States Assignment of Claims Act),
(vii) the Receivable must not be owing from an Account Debtor
located outside the United States or Canada (unless pre-approved
by Silicon in its discretion in writing, or backed by a letter of
credit satisfactory to Silicon, or FCIA insured satisfactory to
Silicon), (viii) the Receivable must not be owing from an Account
Debtor to whom Borrower is or may be liable for goods purchased
from such Account Debtor or otherwise. Notwithstanding
satisfaction of all applicable Eligibility Requirements,
Receivables owing from any individual Account Debtor shall be
ineligible for borrowing (both as Eligible Receivables and as
Eligible Work in Process) to the extent they exceed 25% of the
total of all Receivables then outstanding; provided, however,
Receivables owing from Microsoft Corporation and Hewlett-Packard,
to the extent otherwise satisfying all applicable Eligibility
Requirements, shall be eligible for borrowing (as either Eligible
Receivables or as Eligible Work in Process, as the case may be)
to the extent they do not exceed 35% of the total of all
Receivables then outstanding. In addition, if more than 50% of
Receivables owing from any individual Account Debtor are
outstanding more than 90 days after the applicable invoice
date(s) (without regard to unapplied credits), or otherwise do
not satisfy all applicable Eligibility Requirements, then all
Receivables owing from such Account Debtor shall be ineligible
for borrowing (as Eligible Receivables and as Eligible Work in
Process). Silicon may, from time to time, in its commercially
reasonable judgment, revise any eligibility requirement, upon
written notice to Borrower."; and
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(iii) The definition of "Foreign Loan Documents" is amended by
inserting the following phrase immediately before the period at
the conclusion thereof: ", in each case, as the same may be
amended, restated, supplemented or otherwise modified from time
to time".
i. Section 9.1. Section 9.1 of the Loan Agreement is hereby amended by
deleting the word "three" in the first sentence therein, and inserting
in its place the word "two".
j. Schedule to Loan and Security Agreement. The Schedule to the Loan
Agreement is hereby amended and restated in its entirety to read as
set forth on Exhibit 4 attached hereto.
k. The Loan Agreement and the other Loan Documents are hereby amended
wherever necessary or appropriate to reflect the foregoing changes.
3. Representations and Warranties. Each Current Borrower represents and
warrants to Silicon that as of the Effective Date, after giving effect to
the waiver contained in Section 3 of the Guarantee Modification Agreement
No. 2 attached hereto as Exhibit 2, (i) the Predecessor Borrowers have
ceased to exist as independent entities and all assets, rights, powers and
privileges, and all debts, duties, restrictions, liabilities and
obligations, of such Predecessor Borrowers, under the Loan Documents or
otherwise, have succeeded to the Current Borrowers as direct successors in
interest thereto, (ii) except as set forth in Schedule A attached hereto,
the representation and warranties of the Current Borrowers set forth in the
Loan Documents (as amended by this Agreement) are true and correct, (iii)
no Current Borrower or Predecessor Borrower has, or in the case of
Predecessor Borrowers had, any defenses against its obligations to pay any
amounts due under the Loan Agreement and the other Loan Documents and (iv)
no Default or Event of Default has occurred and is continuing.
4. Continuing Validity. Upon the effectiveness hereof, each reference in each
Loan Document to "the Loan Agreement", "thereunder", "thereof", "therein",
or words of like import referring to the Loan Agreement, shall mean and be
a reference to the Loan Agreement, as amended hereby. Except as
specifically set forth above, the Loan Agreement shall remain in full force
and effect and is hereby ratified and confirmed. Each of the other Loan
Documents are in full force and effect and are hereby ratified and
confirmed. The amendments set forth above (i) do not constitute a waiver or
modification of any term, condition or covenant of the Loan Agreement or
any other Loan Document, other than as expressly set forth herein, and (ii)
shall not prejudice any rights which Silicon may now or hereafter have
under or in connection with the Loan Agreement, as amended hereby, or the
other Loan Documents and shall not obligate Silicon to assent to any
further modifications.
5. Miscellaneous.
a. This Agreement may be signed in one or more counterparts each of which
taken together shall constitute one and the same document.
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b. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
c. EACH CURRENT BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF ANY STATE
OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COMMONWEALTH OF
MASSACHUSETTS IN ANY ACTION, SUIT, OR PROCEEDING OF ANY KIND AGAINST
IT WHICH ARISES OUT OF OR BY REASON OF THIS AGREEMENT; PROVIDED,
HOWEVER, THAT IF FOR ANY REASON SILICON CANNOT AVAIL ITSELF OF THE
COURTS OF THE COMMONWEALTH OF MASSACHUSETTS, THEN VENUE SHALL LIE IN
SANTA CLARA COUNTY, CALIFORNIA.
d. The Current Borrowers agree, on a joint and several basis, to promptly
pay on demand all reasonable costs and expenses of Silicon in
connection with the preparation, reproduction, execution and delivery
of this Agreement and the other instruments and documents to be
delivered hereunder.
e. The Current Borrowers agree to provide Silicon, within 30 days after
the Effective Date, an opinion from counsel to the Current Borrowers,
addressed to Silicon, in form and substance acceptable to Silicon as
to the valid existence and authority of the Current Borrowers to
execute and deliver this Agreement and such other matters as Silicon
may reasonably request.
f. Current Borrowers' agree to reimburse Silicon for any UCC lien
searches reasonably conducted on Silicon's behalf within 45 days of
the Effective Date, in order to establish that no financing statements
or liens of record have been filed against the Current Borrowers,
other than liens in favor of Silicon and Permitted Liens.
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IN WITNESS WHEREOF, Silicon and the Current Borrowers have caused this
Loan Document Modification Agreement (No. 4) to be signed under seal by their
respective duly authorized officers as of the date first set forth above.
SILICON VALLEY EAST, A DIVISION
OF SILICON VALLEY BANK
By: /s/ John D. Gaziano, Jr.
--------------------------------------
Name: John D. Gaziano, Jr.
Title: Senior Relationship Manager
SILICON VALLEY BANK
By: /s/ Heidi Fetty
--------------------------------------
Name: Heidi Fetty
Title: Loan Documentation Specialist
(signed in Santa Clara, CA)
LIONBRIDGE US, INC. (IN ITS INDIVIDUAL CAPACITY AND AS
SUCCESSOR IN INTEREST TO EACH OF INTERNATIONAL LANGUAGE
ENGINEERING CORPORATION AND HARVARD TRANSLATIONS, INC.)
By: /s/ Stephen J. Lifshatz
-------------------------------------
Name: Stephen J. Lifshatz
Title: Vice President
VERITEST, INC. (IN ITS INDIVIDUAL CAPACITY AND AS
SUCCESSOR IN INTEREST TO EACH OF LIONBRIDGE
TECHNOLOGIES CALIFORNIA, INC. AND ETESTING LABS INC.)
By: /s/ Stephen J. Lifshatz
-------------------------------------
Name: Stephen J. Lifshatz
Title: Vice President
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EXHIBIT 1
TO LOAN DOCUMENT
MODIFICATION
AGREEMENT (NO. 4)
FORM OF
AMENDED AND RESTATED PROMISSORY NOTE
------------------------------------
U.S. $11,750,000.00 Boston, Massachusetts
As of March 28, 2003
(Originally dated as of
June 28, 2001, and amended
and restated as of
September 24, 2001, April
29, 2002 and September 20,
2002)
FOR VALUE RECEIVED, the undersigned (the "Borrowers"), jointly and
severally, absolutely and unconditionally promise to pay to the order of Silicon
Valley Bank ("Payee") at the head office of Payee at 3003 Tasman Drive, Santa
Clara, California 95054:
(a) on April 1, 2005, the principal amount of ELEVEN MILLION SEVEN
HUNDRED FIFTY THOUSAND DOLLARS ($11,750,000.00) or, if less, the aggregate
unpaid principal amount of Loans made by Payee to the Borrowers (including,
their predecessors in interest) pursuant to the Loan and Security Agreement
dated as of June 28, 2001, as amended by Loan Document Modification Agreement
(No. 1) dated as of September 24, 2001, Loan Document Modification Agreement
(No. 2) dated as of April 29, 2002, Loan Document Modification Agreement (No. 3)
and Consent dated as of September 20, 2002, and Loan Document Modification
Agreement (No. 4) dated as of even date herewith, as the same may be further
amended, restated or otherwise modified from time to time (as so amended,
restated or modified, with attached schedules and exhibits, the "Loan
Agreement"), by and among the Borrowers and Payee; and
(b) interest on the principal balance hereof from time to time
outstanding from the date hereof through and including the date on which such
principal amount is paid in full, at the times and at the rates provided in the
Loan Agreement.
This Note evidences borrowings under, is subject to the terms and
conditions of and has been issued by the Borrowers in accordance with the terms
of, the Loan Agreement and is the Note referred to therein. This promissory note
amends and restates in its entirety the terms and obligations under that certain
Amended and Restated Promissory Note dated as of September 20, 2002 (the
"Preceding Note") by Lionbridge US, Inc. (f/k/a INT'L.com, Inc.), VeriTest, Inc.
(f/k/a Data Dimensions, Inc.), International Language Engineering Corporation,
Harvard Translations, Inc., Lionbridge Technologies California, Inc. and
eTesting Labs Inc. to the order of Payee and is issued in substitution therefor
and is an amendment and replacement thereof. Nothing herein or in any other
document shall be construed to constitute payment of the
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Preceding Note or to release or terminate any guaranty, lien, mortgage, pledge
or other security interest in favor of Payee.
Payee and any holder hereof is entitled to the benefits and subject to the
conditions of the Loan Agreement and may enforce the agreements of the Borrowers
contained therein, and any holder hereof may exercise the respective remedies
provided for thereby or otherwise available in respect thereof, all in
accordance with the respective terms thereof.
All capitalized terms used in this Note and not otherwise defined herein
shall have the same meanings herein as in the Loan Agreement.
This Note may be prepaid at any time, in whole or in part, without premium
or penalty. Any prepayment of principal shall be accompanied by a payment of
accrued interest in respect of the principal being prepaid.
If any Event of Default shall occur and be continuing, Payee may declare
any or all obligations or liabilities of the Borrowers to Payee (including the
unpaid principal hereunder and any interest due thereon) immediately due and
payable without presentment, demand, protest or notice.
The Borrowers hereby waive presentment, demand, notice, protest and all
other demands and notice in connection with the delivery, acceptance,
performance, default or enforcement of this Note, assent to any extension or
postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or Person primarily or secondarily liable.
This Note shall be governed by, construed in accordance with, and deemed to
take effect as a sealed instrument under, the internal laws of The Commonwealth
of Massachusetts, without regard to principles of conflicts of law. Each of the
Borrowers hereby submits to the exclusive jurisdiction of the state and federal
courts located in The Commonwealth of Massachusetts and in the County of Santa
Clara, State of California in connection with any suit under or in connection
with this Note. The Borrowers irrevocably waive any objection which they may now
or hereafter have to the laying of venue of any such action brought in the
courts referred to in the preceding sentence and irrevocably waive and agree not
to plead or claim in any such action that such action has been brought in an
inconvenient forum.
THE BORROWERS HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS
OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
EACH BORROWER RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A
MATERIAL INDUCEMENT FOR PAYEE TO ACCEPT THIS NOTE AND TO AGREE TO EXTEND CREDIT
UNDER THE LOAN AGREEMENT. EACH BORROWER REPRESENTS AND WARRANTS THAT IS HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL.
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IN WITNESS WHEREOF, the Borrowers have caused this Note to be signed under
seal by their duly authorized officers as of the day and year first above
written.
LIONBRIDGE US, INC.
By:
------------------------------
Name:
Title:
VERITEST, INC.
By:
------------------------------
Name:
Title:
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