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900 | EACH OF BORROWER AND BANK HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE COMMONWEALTH OF MASSACHUSETTS , BUT IF FOR ANY REASON THE BANK IS DENIED ACCESS TO SUCH COURTS , THEN THE VENUE WILL BE IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF SANTA CLARA , STATE OF CALIFORNIA . | <response> EACH OF <person>BORROWER</person> AND <organization>BANK</organization> HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE <location>COMMONWEALTH OF MASSACHUSETTS</location> , BUT IF FOR ANY REASON THE <organization>BANK</organization> IS DENIED ACCESS TO SUCH COURTS , THEN THE VENUE WILL BE IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF <location>SANTA CLARA</location> , STATE OF <location>CALIFORNIA</location> . </response> |
901 | BORROWER AND BANK EACH 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 | <response> <person>BORROWER</person> AND <organization>BANK</organization> EACH 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 </response> |
902 | 12 < PAGE > 13 CONTRACT CLAIMS , TORT CLAIMS , BREACH OF DUTY CLAIMS , AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS . | <response> 12 < PAGE > 13 CONTRACT CLAIMS , TORT CLAIMS , BREACH OF DUTY CLAIMS , AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS . </response> |
903 | EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT . | <response> EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT . </response> |
904 | EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL . | <response> EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL . </response> |
905 | 12 GENERAL PROVISIONS | <response> 12 GENERAL PROVISIONS </response> |
906 | 12 . 1 SUCCESSORS AND ASSIGNS . | <response> 12 . 1 SUCCESSORS AND ASSIGNS . </response> |
907 | This Agreement binds and is for the benefit of the successors and permitted assigns of each party . | <response> This Agreement binds and is for the benefit of the successors and permitted assigns of each party . </response> |
908 | Borrower may not assign this Agreement or any rights under it without Bank ' s prior written consent which may be granted or withheld in Bank ' s discretion . | <response> <person>Borrower</person> may not assign this Agreement or any rights under it without <organization>Bank</organization> ' s prior written consent which may be granted or withheld in <organization>Bank</organization> ' s discretion . </response> |
909 | Bank has the right , without the consent of or notice to Borrower , to sell , transfer , negotiate , or grant participation in all or any part of , or any interest in , Bank ' s obligations , rights and benefits under this Agreement . | <response> <organization>Bank</organization> has the right , without the consent of or notice to <person>Borrower</person> , to sell , transfer , negotiate , or grant participation in all or any part of , or any interest in , <organization>Bank</organization> ' s obligations , rights and benefits under this Agreement . </response> |
910 | 12 . 2 INDEMNIFICATION . | <response> 12 . 2 INDEMNIFICATION . </response> |
911 | Borrower will indemnify , defend and hold harmless Bank and its officers , employees , and agents against : ( a ) all obligations , demands , claims , and liabilities asserted by any other party in connection with the transactions contemplated by the Loan Documents ; and ( b ) all losses or Bank Expenses incurred , or paid by Bank from , following , or consequential to transactions between Bank and Borrower ( including reasonable attorneys fees and expenses ), except for losses caused by Bank ' s gross negligence or willful misconduct . | <response> <person>Borrower</person> will indemnify , defend and hold harmless <organization>Bank</organization> and its officers , employees , and agents against : ( a ) all obligations , demands , claims , and liabilities asserted by any other party in connection with the transactions contemplated by the Loan Documents ; and ( b ) all losses or <organization>Bank</organization> Expenses incurred , or paid by <organization>Bank</organization> from , following , or consequential to transactions between <organization>Bank</organization> and <person>Borrower</person> ( including reasonable attorneys fees and expenses ), except for losses caused by <organization>Bank</organization> ' s gross negligence or willful misconduct . </response> |
912 | 12 . 3 TIME OF ESSENCE . | <response> 12 . 3 TIME OF ESSENCE . </response> |
913 | Time is of the essence for the performance of all obligations in this Agreement . | <response> Time is of the essence for the performance of all obligations in this Agreement . </response> |
914 | 12 . 4 SEVERABILITY OF PROVISION . | <response> 12 . 4 SEVERABILITY OF PROVISION . </response> |
915 | Each provision of this Agreement is severable from every other provision in determining the enforceability of any provision . | <response> Each provision of this Agreement is severable from every other provision in determining the enforceability of any provision . </response> |
916 | 12 . 5 AMENDMENTS IN WRITING , INTEGRATION . | <response> 12 . 5 AMENDMENTS IN WRITING , INTEGRATION . </response> |
917 | All amendments to this Agreement must be in writing and signed by Borrower and Bank . | <response> All amendments to this Agreement must be in writing and signed by <person>Borrower</person> and <organization>Bank</organization> . </response> |
918 | This Agreement represents the entire agreement about this subject matter , and supersedes prior negotiations or agreements . | <response> This Agreement represents the entire agreement about this subject matter , and supersedes prior negotiations or agreements . </response> |
919 | All prior agreements , understandings , representations , warranties , and negotiations between the parties about the subject matter of this Agreement merge into this Agreement and the Loan Documents . | <response> All prior agreements , understandings , representations , warranties , and negotiations between the parties about the subject matter of this Agreement merge into this Agreement and the Loan Documents . </response> |
920 | 12 . 6 COUNTERPARTS . | <response> 12 . 6 COUNTERPARTS . </response> |
921 | This Agreement may be executed in any number of counterparts and by different parties on separate counterparts , each of which , when executed and delivered , are an original , and all taken together , constitute one Agreement . | <response> This Agreement may be executed in any number of counterparts and by different parties on separate counterparts , each of which , when executed and delivered , are an original , and all taken together , constitute one Agreement . </response> |
922 | 12 . 7 SURVIVAL . | <response> 12 . 7 SURVIVAL . </response> |
923 | All covenants , representations and warranties made in this Agreement continue in full force while any Obligations remain outstanding . | <response> All covenants , representations and warranties made in this Agreement continue in full force while any Obligations remain outstanding . </response> |
924 | The obligations of Borrower in Section 12 . 2 to indemnify Bank will survive until all statutes of limitations for actions that may be brought against Bank have run . | <response> The obligations of <person>Borrower</person> in Section 12 . 2 to indemnify <organization>Bank</organization> will survive until all statutes of limitations for actions that may be brought against <organization>Bank</organization> have run . </response> |
925 | 13 < PAGE > 14 12 . 8 CONFIDENTIALITY . | <response> 13 < PAGE > 14 12 . 8 CONFIDENTIALITY . </response> |
926 | In handling any confidential information , Bank will exercise the same degree of care that it exercises for its own proprietary information , but disclosure of information may be made ( i ) to Bank ' s subsidiaries or affiliates in connection with their business with Borrower , ( ii ) to prospective transferees or purchasers of any interest in the Loans , ( iii ) as required by law , regulation , subpoena , or other order , ( iv ) as required in connection with Bank ' s examination or audit and ( v ) as Bank considers appropriate exercising remedies under this Agreement . | <response> In handling any confidential information , <organization>Bank</organization> will exercise the same degree of care that it exercises for its own proprietary information , but disclosure of information may be made ( i ) to <organization>Bank</organization> ' s subsidiaries or affiliates in connection with their business with <person>Borrower</person> , ( ii ) to prospective transferees or purchasers of any interest in the Loans , ( iii ) as required by law , regulation , subpoena , or other order , ( iv ) as required in connection with <organization>Bank</organization> ' s examination or audit and ( v ) as <organization>Bank</organization> considers appropriate exercising remedies under this Agreement . </response> |
927 | Confidential information does not include information that either : ( a ) is in the public domain or in Bank ' s possession when disclosed to Bank , or becomes part of the public domain after disclosure to Bank ; or ( b ) is disclosed to Bank by a third party , if Bank does not know that the third party is prohibited from disclosing the information . | <response> Confidential information does not include information that either : ( a ) is in the public domain or in <organization>Bank</organization> ' s possession when disclosed to <organization>Bank</organization> , or becomes part of the public domain after disclosure to <organization>Bank</organization> ; or ( b ) is disclosed to <organization>Bank</organization> by a third party , if <organization>Bank</organization> does not know that the third party is prohibited from disclosing the information . </response> |
928 | 12 . 9 COUNTERSIGNATURE . | <response> 12 . 9 COUNTERSIGNATURE . </response> |
929 | This Agreement shall become effective only when it shall have been executed by Borrower and Bank ( provided , however , in no event shall this Agreement become effective until signed by an officer of Bank in California ). | <response> This Agreement shall become effective only when it shall have been executed by <person>Borrower</person> and <organization>Bank</organization> ( provided , however , in no event shall this Agreement become effective until signed by an officer of <organization>Bank</organization> in <location>California</location> ). </response> |
930 | 12 . 10 ATTORNEYS ' FEES , COSTS AND EXPENSES . | <response> 12 . 10 ATTORNEYS ' FEES , COSTS AND EXPENSES . </response> |
931 | In any action or proceeding between Borrower and Bank arising out of the Loan Documents , the prevailing party will be entitled to recover its reasonable attorneys ' fees and other costs and expenses incurred , in addition to any other relief to which it may be entitled . | <response> In any action or proceeding between <person>Borrower</person> and <organization>Bank</organization> arising out of the Loan Documents , the prevailing party will be entitled to recover its reasonable attorneys ' fees and other costs and expenses incurred , in addition to any other relief to which it may be entitled . </response> |
932 | 13 DEFINITIONS | <response> 13 DEFINITIONS </response> |
933 | 13 . 1 DEFINITIONS . | <response> 13 . 1 DEFINITIONS . </response> |
934 | In this Agreement : | <response> In this Agreement : </response> |
935 | " ACCOUNTS " are all existing and later arising accounts , contract rights , and other obligations owed Borrower in connection with its sale or lease of goods ( including licensing software and other technology ) or provision of services , all credit insurance , guaranties , other security and all merchandise returned or reclaimed by Borrower and Borrower ' s Books relating to any of the foregoing . | <response> " ACCOUNTS " are all existing and later arising accounts , contract rights , and other obligations owed <person>Borrower</person> in connection with its sale or lease of goods ( including licensing software and other technology ) or provision of services , all credit insurance , guaranties , other security and all merchandise returned or reclaimed by <person>Borrower</person> and <person>Borrower</person> ' s Books relating to any of the foregoing . </response> |
936 | " AFFILIATE " of a Person is a Person that owns or controls directly or indirectly the Person , any Person that controls or is controlled by or is under common control with the Person , and each of that Person ' s senior executive officers , directors , partners and , for any Person that is a limited liability company , that Person ' s managers and members . | <response> " AFFILIATE " of a Person is a Person that owns or controls directly or indirectly the Person , any Person that controls or is controlled by or is under common control with the Person , and each of that Person ' s senior executive officers , directors , partners and , for any Person that is a limited liability company , that Person ' s managers and members . </response> |
937 | " BANK EXPENSES " are all audit fees and expenses and reasonable costs or expenses ( including reasonable attorneys ' fees and expenses ) for preparing , negotiating , administering , defending and enforcing the Loan Documents ( including appeals or Insolvency Proceedings ). | <response> " <organization>BANK</organization> EXPENSES " are all audit fees and expenses and reasonable costs or expenses ( including reasonable attorneys ' fees and expenses ) for preparing , negotiating , administering , defending and enforcing the Loan Documents ( including appeals or Insolvency Proceedings ). </response> |
938 | " BORROWER ' S BOOKS " are all Borrower ' s books and records including ledgers , records regarding Borrower ' s assets or liabilities , the Collateral , business operations or financial condition and all computer programs or discs or any equipment containing the information . | <response> " <person>BORROWER</person> ' S BOOKS " are all <person>Borrower</person> ' s books and records including ledgers , records regarding <person>Borrower</person> ' s assets or liabilities , the Collateral , business operations or financial condition and all computer programs or discs or any equipment containing the information . </response> |
939 | " BUSINESS DAY " is any day that is not a Saturday , Sunday or a day on which the Bank is closed . | <response> " BUSINESS DAY " is any day that is not a Saturday , Sunday or a day on which the <organization>Bank</organization> is closed . </response> |
940 | " CLOSING DATE " is the date of this Agreement . | <response> " CLOSING DATE " is the date of this Agreement . </response> |
941 | " CODE " is the Massachusetts Uniform Commercial Code . | <response> " CODE " is the <location>Massachusetts</location> Uniform Commercial Code . </response> |
942 | 14 < PAGE > 15 " COLLATERAL " is the property described on Exhibit A . | <response> 14 < PAGE > 15 " COLLATERAL " is the property described on Exhibit A . </response> |
943 | " COMMITMENT TERMINATION DATE " is January 27 , 2000 . | <response> " COMMITMENT TERMINATION DATE " is January 27 , 2000 . </response> |
944 | " COMMITTED EQUIPMENT LINE " is a Credit Extension of up to $ 1 , 500 , 000 . | <response> " COMMITTED EQUIPMENT LINE " is a Credit Extension of up to $ 1 , 500 , 000 . </response> |
945 | " CONTINGENT OBLIGATION " is , for any Person , any direct or indirect liability , contingent or not , of that Person for ( i ) any indebtedness , lease , dividend , letter of credit or other obligation of another such as an obligation directly or indirectly guaranteed , endorsed , co - made , discounted or sold with recourse by that Person , or for which that Person is directly or indirectly liable ; ( ii ) any obligations for undrawn letters of credit for the account of that Person ; and ( iii ) all obligations from any interest rate , currency or commodity swap agreement , interest rate cap or collar agreement , or other agreement or arrangement designated to protect a Person against fluctuation in interest rates , currency exchange rates or commodity prices ; but " Contingent Obligation " does not include endorsements in the ordinary course of business . | <response> " CONTINGENT OBLIGATION " is , for any Person , any direct or indirect liability , contingent or not , of that Person for ( i ) any indebtedness , lease , dividend , letter of credit or other obligation of another such as an obligation directly or indirectly guaranteed , endorsed , co - made , discounted or sold with recourse by that Person , or for which that Person is directly or indirectly liable ; ( ii ) any obligations for undrawn letters of credit for the account of that Person ; and ( iii ) all obligations from any interest rate , currency or commodity swap agreement , interest rate cap or collar agreement , or other agreement or arrangement designated to protect a Person against fluctuation in interest rates , currency exchange rates or commodity prices ; but " Contingent Obligation " does not include endorsements in the ordinary course of business . </response> |
946 | The amount of a Contingent Obligation is the stated or determined amount of the primary obligation for which the Contingent Obligation is made or , if not determinable , the maximum reasonably anticipated liability for it determined by the Person in good faith ; but the amount may not exceed the maximum of the obligations under the guarantee or other support arrangement . | <response> The amount of a Contingent Obligation is the stated or determined amount of the primary obligation for which the Contingent Obligation is made or , if not determinable , the maximum reasonably anticipated liability for it determined by the Person in good faith ; but the amount may not exceed the maximum of the obligations under the guarantee or other support arrangement . </response> |
947 | " CREDIT EXTENSION " is each Equipment Advance or any other extension of credit by Bank for Borrower ' s benefit . | <response> " CREDIT EXTENSION " is each Equipment Advance or any other extension of credit by <organization>Bank</organization> for <person>Borrower</person> ' s benefit . </response> |
948 | " EQUIPMENT ADVANCE " or " EQUIPMENT ADVANCES " is a loan advance ( or advances ) under the Committed Equipment Line . | <response> " EQUIPMENT ADVANCE " or " EQUIPMENT ADVANCES " is a loan advance ( or advances ) under the Committed Equipment Line . </response> |
949 | " ELIGIBLE EQUIPMENT " is general purpose computer equipment , office equipment , test and laboratory equipment , furnishings , and , subject to the limitations set forth below , Other Equipment that complies with all of Borrower ' s representations and warranties to Bank and which is acceptable to Bank in all respects . | <response> " ELIGIBLE EQUIPMENT " is general purpose computer equipment , office equipment , test and laboratory equipment , furnishings , and , subject to the limitations set forth below , Other Equipment that complies with all of <person>Borrower</person> ' s representations and warranties to <organization>Bank</organization> and which is acceptable to <organization>Bank</organization> in all respects . </response> |
950 | Unless otherwise agreed to by Bank : not more than 25 % of the Equipment financed with the proceeds of each Equipment Advance shall consist of Other Equipment . | <response> Unless otherwise agreed to by <organization>Bank</organization> : not more than 25 % of the Equipment financed with the proceeds of each Equipment Advance shall consist of Other Equipment . </response> |
951 | All Equipment financed with the proceeds of Equipment Advances shall be new and purchased within 120 days from the date of the Equipment Advance . | <response> All Equipment financed with the proceeds of Equipment Advances shall be new and purchased within 120 days from the date of the Equipment Advance . </response> |
952 | Equipment to be located outside of the United States shall be limited to a maximum of $ 150 , 000 . | <response> Equipment to be located outside of the <location>United States</location> shall be limited to a maximum of $ 150 , 000 . </response> |
953 | " EQUIPMENT " is all present and future machinery , equipment , tenant improvements , furniture , fixtures , vehicles , tools , parts and attachments in which Borrower has any interest . | <response> " EQUIPMENT " is all present and future machinery , equipment , tenant improvements , furniture , fixtures , vehicles , tools , parts and attachments in which <person>Borrower</person> has any interest . </response> |
954 | " EQUIPMENT ADVANCE " is defined in Section 2 . 1 . 1 . | <response> " EQUIPMENT ADVANCE " is defined in Section 2 . 1 . 1 . </response> |
955 | " EQUIPMENT AVAILABILITY END DATE " is defined in Section 2 . 1 . 1 . | <response> " EQUIPMENT AVAILABILITY END DATE " is defined in Section 2 . 1 . 1 . </response> |
956 | " EQUIPMENT MATURITY DATE " is defined in Section 2 . 1 . 1 . | <response> " EQUIPMENT MATURITY DATE " is defined in Section 2 . 1 . 1 . </response> |
957 | " ERISA " is the Employment Retirement Income Security Act of 1974 , and its regulations . | <response> " <organization>ERISA</organization> " is the Employment Retirement Income Security Act of 1974 , and its regulations . </response> |
958 | " FINAL PAYMENT PERCENTAGE " is defined in Section 2 . 2 ( d ). | <response> " FINAL PAYMENT PERCENTAGE " is defined in Section 2 . 2 ( d ). </response> |
959 | " FINANCED EQUIPMENT " is defined in the Loan Supplement . | <response> " FINANCED EQUIPMENT " is defined in the Loan Supplement . </response> |
960 | " FUNDING DATE " is any date on which an Equipment Advance is made to or on account of Borrower . | <response> " FUNDING DATE " is any date on which an Equipment Advance is made to or on account of <person>Borrower</person> . </response> |
961 | " GAAP " is generally accepted accounting principles . | <response> " GAAP " is generally accepted accounting principles . </response> |
962 | 15 < PAGE > 16 " INDEBTEDNESS " is ( a ) indebtedness for borrowed money or the deferred price of property or services , such as reimbursement and other obligations for surety bonds and letters of credit ( b ) obligations evidenced by notes , bonds , debentures or similar instruments , ( c ) capital lease obligations and ( d ) Contingent Obligations . | <response> 15 < PAGE > 16 " INDEBTEDNESS " is ( a ) indebtedness for borrowed money or the deferred price of property or services , such as reimbursement and other obligations for surety bonds and letters of credit ( b ) obligations evidenced by notes , bonds , debentures or similar instruments , ( c ) capital lease obligations and ( d ) Contingent Obligations . </response> |
963 | " INSOLVENCY PROCEEDING " are proceedings by or against any Person under the United States Bankruptcy Code , or any other bankruptcy or insolvency law , including assignments for the benefit of creditors , compositions , extensions generally with its creditors , or proceedings seeking reorganization , arrangement , or other relief . | <response> " INSOLVENCY PROCEEDING " are proceedings by or against any Person under the <location>United States</location> Bankruptcy Code , or any other bankruptcy or insolvency law , including assignments for the benefit of creditors , compositions , extensions generally with its creditors , or proceedings seeking reorganization , arrangement , or other relief . </response> |
964 | " INVESTMENT " is any beneficial ownership of ( including stock , partnership interest or other securities ) any Person , or any loan , advance or capital contribution to any Person . | <response> " INVESTMENT " is any beneficial ownership of ( including stock , partnership interest or other securities ) any Person , or any loan , advance or capital contribution to any Person . </response> |
965 | " LIEN " is a mortgage , lien , deed of trust , charge , pledge , security interest or other encumbrance . | <response> " LIEN " is a mortgage , lien , deed of trust , charge , pledge , security interest or other encumbrance . </response> |
966 | " LOAN DOCUMENTS " are , collectively , this Agreement , any note , or notes or guaranties executed by Borrower or Guarantor , and any other present or future agreement between Borrower and / or for the benefit of Bank in connection with this Agreement , all as amended , extended or restated . | <response> " LOAN DOCUMENTS " are , collectively , this Agreement , any note , or notes or guaranties executed by <person>Borrower</person> or Guarantor , and any other present or future agreement between <person>Borrower</person> and / or for the benefit of <organization>Bank</organization> in connection with this Agreement , all as amended , extended or restated . </response> |
967 | " LOAN FACTOR " is the amount set forth as a percentage in the Loan Supplement calculated using the Basic Rate . | <response> " LOAN FACTOR " is the amount set forth as a percentage in the Loan Supplement calculated using the Basic Rate . </response> |
968 | " LOAN SUPPLEMENT " is attached as Exhibit C . | <response> " LOAN SUPPLEMENT " is attached as Exhibit C . </response> |
969 | " MATERIAL ADVERSE CHANGE " is defined in Section 8 . 3 . | <response> " MATERIAL ADVERSE CHANGE " is defined in Section 8 . 3 . </response> |
970 | " OBLIGATIONS " are debts , principal , interest , Bank Expenses and other amounts Borrower owes Bank now or later , including letters of credit and exchange contracts and including interest accruing after Insolvency Proceedings begin and debts , liabilities , or obligations of Borrower assigned to Bank . | <response> " OBLIGATIONS " are debts , principal , interest , <organization>Bank</organization> Expenses and other amounts <person>Borrower</person> owes <organization>Bank</organization> now or later , including letters of credit and exchange contracts and including interest accruing after Insolvency Proceedings begin and debts , liabilities , or obligations of <person>Borrower</person> assigned to <organization>Bank</organization> . </response> |
971 | " ORIGINAL STATED COST " is defined in Section 2 . 2 ( d ). | <response> " ORIGINAL STATED COST " is defined in Section 2 . 2 ( d ). </response> |
972 | " OTHER EQUIPMENT " is leasehold improvements , intangible property such as computer software and software licenses , equipment specifically designed or manufactured for Borrower , other intangible property , limited use property and other similar property and soft costs , including sales tax , freight and installation expenses . | <response> " OTHER EQUIPMENT " is leasehold improvements , intangible property such as computer software and software licenses , equipment specifically designed or manufactured for <person>Borrower</person> , other intangible property , limited use property and other similar property and soft costs , including sales tax , freight and installation expenses . </response> |
973 | " PERSON " is any individual , sole proprietorship , partnership , limited liability company , joint venture , company association , trust , unincorporated organization , association , corporation , institution , public benefit corporation , firm , joint stock company , estate , entity or government agency . | <response> " PERSON " is any individual , sole proprietorship , partnership , limited liability company , joint venture , company association , trust , unincorporated organization , association , corporation , institution , public benefit corporation , firm , joint stock company , estate , entity or government agency . </response> |
974 | " PRIME RATE " is Bank ' s most recently announced " prime rate ," even if it is not Bank ' s lowest rate . | <response> " PRIME RATE " is <organization>Bank</organization> ' s most recently announced " prime rate ," even if it is not <organization>Bank</organization> ' s lowest rate . </response> |
975 | " RESPONSIBLE OFFICER " is each of the Chief Executive Officer , the President , the Chief Financial Officer and the Controller of Borrower . | <response> " RESPONSIBLE OFFICER " is each of the Chief Executive Officer , the President , the <organization>Chief Financial Officer</organization> and the Controller of <person>Borrower</person> . </response> |
976 | " SCHEDULE " is any attached schedule of exceptions . | <response> " SCHEDULE " is any attached schedule of exceptions . </response> |
977 | " STATED COST " is ( i ) with respect to new equipment , the original cost to Borrower of the item of new equipment net of any and all freight , installation , tax and other soft costs or ( ii ) with respect to used equipment , the net book value assigned to such item of used equipment by Bank , after consultation with Borrower , at the time of the making of the equipment Advance such item of used equipment . | <response> " STATED COST " is ( i ) with respect to new equipment , the original cost to <person>Borrower</person> of the item of new equipment net of any and all freight , installation , tax and other soft costs or ( ii ) with respect to used equipment , the net book value assigned to such item of used equipment by <organization>Bank</organization> , after consultation with <person>Borrower</person> , at the time of the making of the equipment Advance such item of used equipment . </response> |
978 | 16 < PAGE > 17 " STIPULATED LOSS VALUE " is the percentage set forth with respect to each Equipment Advance in the Loan Supplement , determined as of the Payment Date on which payment of such amount is to be made , or if such date is not a Payment Date , on the Payment Date immediately succeeding such date multiplied by the Loan Amount . | <response> 16 < PAGE > 17 " STIPULATED LOSS VALUE " is the percentage set forth with respect to each Equipment Advance in the Loan Supplement , determined as of the Payment Date on which payment of such amount is to be made , or if such date is not a Payment Date , on the Payment Date immediately succeeding such date multiplied by the Loan Amount . </response> |
979 | " SUBORDINATED DEBT " is debt incurred by Borrower subordinated to Borrowers debt to Bank ( and identified as subordinated by Borrower and Bank ). | <response> " SUBORDINATED DEBT " is debt incurred by <person>Borrower</person> subordinated to Borrowers debt to <organization>Bank</organization> ( and identified as subordinated by <person>Borrower</person> and <organization>Bank</organization> ). </response> |
980 | " SUBSIDIARY " is for any Person , or any other business entity of which more than 50 % of the voting stock or other equity interests is owned or controlled , directly or indirectly , by the Person or one or more Affiliates of the Person . | <response> " SUBSIDIARY " is for any Person , or any other business entity of which more than 50 % of the voting stock or other equity interests is owned or controlled , directly or indirectly , by the Person or one or more Affiliates of the Person . </response> |
981 | BORROWER : | <response> <person>BORROWER</person> : </response> |
982 | Akamai Technologies , Inc . | <response> <organization>Akamai Technologies</organization> , Inc . </response> |
983 | By : / s / Paul Sagan ----------------------------- Title : VP and COO --------------------------- | <response> By : / s / <person>Paul Sagan</person> ----------------------------- Title : VP and COO --------------------------- </response> |
984 | BANK : | <response> <organization>BANK</organization> : </response> |
985 | SILICON VALLEY BANK , doing business as SILICON VALLEY EAST | <response> <organization>SILICON VALLEY BANK</organization> , doing business as <location>SILICON VALLEY EAST</location> </response> |
986 | By : / s / Nancy E . Funkhouser ----------------------------- Title : Assistant Vice President --------------------------- | <response> By : / s / <person>Nancy E</person> . Funkhouser ----------------------------- Title : Assistant Vice President --------------------------- </response> |
987 | SILICON VALLEY BANK | <response> <organization>SILICON VALLEY BANK</organization> </response> |
988 | By : / s / [ illegible ] ----------------------------- Title : AVP --------------------------- executed in Santa Clara County , California | <response> By : / s / [ illegible ] ----------------------------- Title : AVP --------------------------- executed in <location>Santa Clara</location> County , <location>California</location> </response> |
989 | -DOCSTART- | <response> -DOCSTART- </response> |
990 | Dated March 31 , 2007 Thinkplus Investments Limited ( as the Lender ) AND Airland International Limited Bizexpress Limited ( as the Borrower ) Loan Agreement Contents | <response> Dated March 31 , 2007 <organization>Thinkplus Investments Limited</organization> ( as the <person>Lender</person> ) AND <organization>Airland International Limited Bizexpress Limited</organization> ( as the <person>Borrower</person> ) Loan Agreement Contents </response> |
991 | Page Article Article 1 Definitions 3 Article 2 Loan 5 Article 3 Security for the Loan 6 Article 4 Representations and Warranties by the Company 6 Article 5 Representations and Warranties by the Borrower 7 Article 6 Confidentiality 8 Article 7 Taxes and Expenses 8 Article 8 Succession and Assignment 8 Article 9 Notices 8 Article 10 Applicable Law and Dispute Resolution 9 Article 11 Effectiveness | <response> Page Article Article 1 Definitions 3 Article 2 Loan 5 Article 3 Security for the Loan 6 Article 4 Representations and Warranties by the Company 6 Article 5 Representations and Warranties by the <person>Borrower</person> 7 Article 6 Confidentiality 8 Article 7 Taxes and Expenses 8 Article 8 Succession and Assignment 8 Article 9 Notices 8 Article 10 Applicable Law and Dispute Resolution 9 Article 11 Effectiveness </response> |
992 | 9 THIS LOAN AGREEMENT (" this Agreement ") is entered into by and between the parties below in Beijing , China as of March 31 , 2007 : Thinkplus Investments Limited ., a corporation incorporated under the laws of the Cayman Islands , whose registered address is Codan Trust Company ( Cayman ) Limited , Century Yard , Cricket Square , Hutchins Drive , P . O . | <response> 9 THIS LOAN AGREEMENT (" this Agreement ") is entered into by and between the parties below in <location>Beijing</location> , <location>China</location> as of March 31 , 2007 : <organization>Thinkplus Investments Limited</organization> ., a corporation incorporated under the laws of the <location>Cayman Islands</location> , whose registered address is <location>Codan Trust Company</location> ( <location>Cayman</location> ) Limited , <location>Century Yard</location> , <location>Cricket Square</location> , <location>Hutchins Drive</location> , P . O . </response> |
993 | Box 2681GT , George Town , Grand Cayman , British West Indies , hereinafter referred to as the " Company "; Airland International Limited , a corporation incorporated under the laws of the British Virgin Islands , whose registered address is 2nd floor , Abbott Building Road Town , Tortola , British Virgin Islands , hereinafter referred to as the " Airland "; AND Bizexpress Limited , a corporation incorporated under the laws of the British Virgin Islands , whose registered address is 2nd floor , Abbott Building Road Town , Tortola , British Virgin Islands , hereinafter referred to as the " Bizexpress " Airland and Bizexpress are collectively referred to as the " Borrower ". | <response> Box 2681GT , <location>George Town</location> , <location>Grand Cayman</location> , <location>British West Indies</location> , hereinafter referred to as the " Company "; <organization>Airland International Limited</organization> , a corporation incorporated under the laws of the <location>British Virgin Islands</location> , whose registered address is <location>2nd floor</location> , <location>Abbott Building Road Town</location> , <location>Tortola</location> , <location>British Virgin Islands</location> , hereinafter referred to as the " Airland "; AND <location>Bizexpress Limited</location> , a corporation incorporated under the laws of the <location>British Virgin Islands</location> , whose registered address is <location>2nd floor</location> , <location>Abbott Building Road Town</location> , <location>Tortola</location> , <location>British Virgin Islands</location> , hereinafter referred to as the " <organization>Bizexpress</organization> " <organization>Airland</organization> and <organization>Bizexpress</organization> are collectively referred to as the " <person>Borrower</person> ". </response> |
994 | The Company and the Borrower are collectively referred to as the " Parties " and individually as a " Party ". | <response> The Company and the <person>Borrower</person> are collectively referred to as the " Parties " and individually as a " Party ". </response> |
995 | RECITAL : | <response> RECITAL : </response> |
996 | A . | <response> A . </response> |
997 | The Company and the Borrower have signed the Subscription Agreement ( as defined below ) on the date of this Agreement and Worksoft , Zhang Jilun and Shi Rongbin have signed the Equity Transfer Contract ( as defined below ) on the date of this Agreement ; | <response> The Company and the <person>Borrower</person> have signed the Subscription Agreement ( as defined below ) on the date of this Agreement and <organization>Worksoft</organization> , <person>Zhang Jilun</person> and <person>Shi Rongbin</person> have signed the Equity Transfer Contract ( as defined below ) on the date of this Agreement ; </response> |
998 | B . | <response> B . </response> |
999 | Subject to the terms and conditions of this Agreement , the Company agrees to provide the Loan to the Borrower and the Borrower agrees to pledge part of its shares in the Company to the Company as a security for the Loan . | <response> Subject to the terms and conditions of this Agreement , the Company agrees to provide the Loan to the <person>Borrower</person> and the <person>Borrower</person> agrees to pledge part of its shares in the Company to the Company as a security for the Loan . </response> |
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