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Exhibit 10.37
PROMISSORY NOTE
(SHARE REPURCHASE LINE OF CREDIT LOANS)
$5,000,000 Wellesley, Massachusetts
As of May 3, 1996
For value received, the undersigned, VMARK SOFTWARE, INC., a Delaware
corporation (the "BORROWER"), promises to pay to SILICON VALLEY BANK (the
"BANK") at the office of the Bank located at 3003 Tasman Drive, Santa Clara,
California 95054, or to its order, the lesser of (a) FIVE MILLION DOLLARS
($5,000,000) or (b) the outstanding principal amount hereunder on October 29,
1996, in thirty-six (36) consecutive equal monthly installments of principal
payable on the twenty-eighth day of each month, commencing November 28, 1996,
and ending October 28, 1999 (the "MATURITY DATE"), together with interest on the
principal amount hereof from time to time outstanding at a fluctuating rate per
annum equal to the Prime Rate (as defined below) plus one-half percent (1/2%)
until the Maturity Date, payable monthly in arrears on the twenty-eighth day of
each calendar month occurring after the date hereof and on the Maturity Date;
PROVIDED, HOWEVER, that if the Borrower has pursuant to the terms of the Loan
and Security Agreement (as defined below) exercised its option to defer the
Share Repurchase Availability Expiration Date (as defined in the Loan and
Security Agreement) to April 28, 1997, the Borrower shall instead be obligated
to pay to the Bank the lesser of (a) FIVE MILLION DOLLARS ($5,000,000) or (b)
the outstanding principal amount hereunder on April 28, 1997, in thirty-six (36)
consecutive equal monthly installments of principal payable on the twenty-eighth
day of each month, commencing May 28, 1997, and ending April 28, 2000 (the
"EXTENDED MATURITY DATE"), together with interest on the principal amount hereof
from time to time outstanding at a fluctuating rate per annum equal to the Prime
Rate (as defined below) plus one-half percent (1/2%) until the Extended Maturity
Date, payable monthly in arrears on the twenty-eighth day of each calendar month
occurring after the date hereof and ending on the Extended Maturity Date.
The Borrower promises to pay on demand interest at a per annum rate of
interest on any overdue principal (and to the extent permitted by law, overdue
interest) equal to the rate of interest in effect immediately prior to the time
such amount became due plus five (5) percentage points. The Bank's "Prime Rate"
is the per annum rate of interest from time to time announced and made effective
by the Bank as its Prime Rate (which rate may or may not be the lowest rate
available from the Bank at any given time).
Computations of interest shall be made by the Bank on the basis of a
year of 360 days for the actual number of days occurring in the period for which
such interest is payable.
This promissory note is the note relating to the Share Repurchase Line
of Credit referred to in the Loan and Security Agreement dated as of May 3, 1996
between the Bank and the Borrower (together with all related schedules, and as
the same may be amended, modified or supplemented from time to time, the "LOAN
AND SECURITY AGREEMENT"), and is subject to optional and mandatory prepayment as
provided therein, and is entitled to the benefits thereof and of the other Loan
Documents referred to therein. This note is secured by the Loan and Security
Agreement and by any other Security Instruments referenced in the Loan and
Security Agreement.
Upon the occurrence of any Event of Default under, and as defined in,
the Loan and Security Agreement, at the option of the Bank, the principal amount
then outstanding of and the accrued interest on the advances under this note and
all other amounts payable under this note shall become immediately due and
payable, without notice (including, without limitation, notice of intent to
accelerate), presentment, demand, protest or other formalities of any kind, all
of which are hereby expressly waived by the Borrower.
The Bank shall keep a record of the amount and the date of the making of
each advance pursuant to the Loan and Security Agreement and each payment of
principal with respect thereto either by maintaining a computerized record of
such information and printouts of such computerized record,
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which computerized record, and the print outs thereof, shall constitute PRIMA
FACIE evidence of the accuracy of the information so endorsed.
The undersigned agrees to pay all reasonable costs and expenses of the
Bank (including, without limitation, the reasonable fees and expenses of
attorneys) in connection with the enforcement of this note and the other Loan
Documents and the preservation of their respective rights hereunder and
thereunder.
No delay or omission on the part of the Bank in exercising any right
hereunder shall operate as a waiver of such right or of any other right of the
Bank, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or any other right on any future occasion. The
Borrower and every endorser or guarantor of this note regardless of the time,
order or place of signing waives presentment, demand, protest and notices of
every kind and assents to any one or more extensions or postponements of the
time of payment or any other indulgences, to any substitutions, exchanges or
releases of collateral for this note, and to the additions or releases of any
other parties or persons primarily or secondarily liable.
THIS NOTE HAS BEEN DELIVERED TO THE BANK AND ACCEPTED BY THE BANK IN THE
STATE OF CALIFORNIA.
THE BORROWER HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY NOW OR HEREAFTER
HAVE TO A JURY TRIAL IN ANY SUIT, ACTION OR PROCEEDING WHICH ARISES OUT OF OR BY
REASON OF THIS NOTE, ANY LOAN DOCUMENT (AS DEFINED IN THE LOAN AND SECURITY
AGREEMENT), OR THE TRANSACTIONS CONTEMPLATED HEREBY.
BY ITS EXECUTION AND DELIVERY OF THIS NOTE, THE BORROWER ACCEPTS FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS (OR IF FOR ANY REASON ACCESS
TO SUCH COURTS IS DENIED TO THE BANK, THEN, IN THE STATE OF CALIFORNIA) IN ANY
ACTION, SUIT OR PROCEEDING OF ANY KIND AGAINST IT WHICH ARISES OUT OF OR BY
REASON OF THIS NOTE, ANY LOAN DOCUMENT (AS DEFINED IN THE LOAN AND SECURITY
AGREEMENT), OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ADDITION TO ANY OTHER
COURT IN WHICH SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT, IRREVOCABLY
AGREES TO BE BOUND BY ANY FINAL JUDGMENT RENDERED BY ANY SUCH COURT IN ANY SUCH
ACTION, SUIT OR PROCEEDING IN WHICH IT SHALL HAVE BEEN SERVED WITH PROCESS IN
THE MANNER HEREINAFTER PROVIDED, SUBJECT TO EXERCISE AND EXHAUSTION OF ALL
RIGHTS OF APPEAL AND TO THE EXTENT THAT IT MAY LAWFULLY DO SO, WAIVES AND AGREES
NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN SUCH ACTION, SUIT
OR PROCEEDING ANY CLAIMS THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION
OF SUCH COURT, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR
EXECUTION, THAT THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM OR THAT THE VENUE THEREOF IS IMPROPER, AND AGREES THAT PROCESS MAY BE
SERVED UPON IT IN ANY SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED BY
CHAPTER 223A OF THE GENERAL LAWS OF MASSACHUSETTS, RULE 4 OF THE MASSACHUSETTS
RULES OF CIVIL PROCEDURE OR RULE 4 OF THE FEDERAL RULES OF CIVIL PROCEDURE.
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ALL RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY THE LAW OF THE
COMMONWEALTH OF MASSACHUSETTS AND THIS NOTE SHALL BE DEEMED TO BE UNDER SEAL.
VMARK SOFTWARE, INC.
By:
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Name:
Title:
[Seal]